EXHIBIT 4.38
EXECUTION COPY
[ASHURT XXXXXX XXXXX LOGO]
Business Purchase Agreement
Xxxxx Limited
and
Pharmaceutical Development and Manufacturing Services
Limited
for the sale and purchase of the UK pharmaceutical
products manufacturing business and certain assets of
Xxxxx Limited, a subsidiary of Xxxxx Holdings Plc
2 December 2003
CONTENTS
CLAUSE PAGE
INTERPRETATION...................................... 3
SALE AND PURCHASE................................... 10
CONSIDERATION....................................... 11
COMPLETION.......................................... 11
LIABILITIES......................................... 13
RECEIVABLES......................................... 14
CONTRACTS........................................... 15
STOCK AND INTERMEDIATES............................. 16
PREPAYMENTS BY SELLER AND CUSTOMERS................. 19
EMPLOYEES........................................... 21
FUTURE TRADING AND TRADE ENQUIRIES.................. 22
MHRA LICENCES....................................... 23
VALUE ADDED TAX..................................... 23
WARRANTIES.......................................... 24
PROTECTION OF GOODWILL.............................. 27
ANNOUNCEMENTS, ETC.................................. 29
ASSIGNMENT.......................................... 30
COSTS............................................... 30
ENTIRE AGREEMENT.................................... 30
WAIVER, AMENDMENT................................... 31
FURTHER ASSURANCE & ASSIGNMENT OF LEASES............ 31
NOTICES............................................. 33
COUNTERPARTS........................................ 35
GOVERNING LAW AND JURISDICTION...................... 35
INVALIDITY.......................................... 35
THIRD PARTY RIGHTS.................................. 36
SCHEDULE 1................................................
Allocation of Consideration...............................
SCHEDULE 2................................................
Warranties................................................
SCHEDULE 3................................................
Assumed Employees.........................................
SCHEDULE 4................................................
Contracts.................................................
SCHEDULE 5................................................
Xxxxx Marketing Authorisations............................
SCHEDULE 6................................................
Properties................................................
SCHEDULE 7................................................
IT Equipment and Contracts................................
SCHEDULE 8................................................
Intermediate Valuation Policies and Procedures............
SCHEDULE 9................................................
Hire Purchase Agreements..................................
APPENDIX 1................................................
Lists of IT Equipment.....................................
APPENDIX 2................................................
Capital Grants............................................
THIS AGREEMENT is made on 2 December 2003
BETWEEN:
(1) PHARMACEUTICAL DEVELOPMENT AND MANUFACTURING SERVICES LIMITED
(No. NI45055) whose registered office is at Xxxxx Xxxxx, 00 Xxxxxx
Xxxxxxxxxx Xxxxxx, Craigavon, Northern Ireland BT63 5QD (the "BUYER");
and
(2) XXXXX LIMITED (No. NI30077) whose registered office is at Xxxx 00,
Xxxxxx Xxxxxxxxxx Xxxxxx, Craigavon, Co Armagh, Northern Ireland BT63
5UA (the "SELLER" or "XXXXX").
RECITALS
(A) The Seller carries on the Business (as hereinafter defined) as part of
its group and is the beneficial owner, or is otherwise able to procure
the transfer, of the Assets (as hereinafter defined).
(B) The Seller has agreed to sell, and the Buyer has agreed to purchase,
the Business as a going concern and the Assets on the terms hereinafter
set out.
THE PARTIES AGREE AS FOLLOWS:
1. INTERPRETATION
1.1 The following words and expressions shall, unless the context otherwise
requires, have the following meanings:
"ACCOUNTS" means the audited financial statements (comprising a balance
sheet, profit and loss account, cash flow statement, notes and
directors' report and auditors' certificates) of the Seller for the
financial period ended on the Accounts Date in the Agreed Form;
"ACCOUNTS DATE" means 30 September 2002;
"AGREED FORM" means, in relation to a document, in the form agreed
between the parties on or prior to the date hereof and for the purposes
of identification signed on their behalf;
"ASSETS" means all assets, property or rights of the Seller relating to
or connected with or belonging to or used in the Business which shall,
without limitation include the Goodwill, Intermediates, Books and
Records, Contracts, Xxxxx Marketing Authorisations, IT Equipment and
Assets, IT Contracts, Business Intellectual Property, Properties, Fixed
Plant and Loose Plant together with the assets and rights and the
benefit of any claims directly and exclusively relating to the
Business, other than the Excluded Assets;
"ASSIGNMENT" means the deed of assignment dated 31 March 2002 between
(1) Xxxxx Limited and (2) Atoze Analytical Limited (3) Xxxxxxx Xxxxx
and others and (4) Xxxxx Holdings plc;
"ASSUMED CREDIT AMOUNT" means the capital payments outstanding as at
Completion to be made pursuant to the Hire Purchase Agreements as set
out in the Agreed Form document
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entitled "Agreed Credit Amount" to be prepared by the Seller and
delivered to the Buyer on Completion (the "AGREED CREDIT AMOUNT SIDE
LETTER");
"ASSUMED EMPLOYEES" means those employees engaged in the Business as at
Completion and set out in the list in the Agreed Form headed "Assumed
Employees" at schedule 3 to this agreement;
"BOOKS AND RECORDS" means the lists of customers and suppliers, books
of account, financial records, and all other records exclusively
relating to the Business and Assets on whatsoever medium they are
stored;
"BUSINESS" means the pharmaceutical products manufacturing business in
the United Kingdom and the Republic of Ireland and associated
packaging, distribution and logistics services carried on by Seller at
the date of this agreement at the Properties including third party
contract manufacturing carried on by the Seller as part of the "PDMS
division" of the Business but excluding:
(a) the business carried on by the Seller or the Seller's Group
relating to intravenous fluids and related products from time
to time (the "IVEX BUSINESS");
(b) the business or associated activities and any developments
carried on by the Seller or the Seller's Group from time to
time in relation to the Seller's Group's products based on the
intravaginal ring technology platform (the "IVR BUSINESS");
(c) unless otherwise agreed between the parties pursuant to the
Supply Agreement, any third party contract manufacturing,
development, and packaging carried on by the Seller or the
Seller's Group outside the "PDMS division" which shall include
contract manufacturing, development and packaging services (as
appropriate) in relation to Normax, Codanthrusate, Cephradine,
Cefaclor and Dynamin;
(d) any sales or marketing activities in connection with those
parts of the business of the Seller or any member of the
Seller's Group not comprising the Business;
"BUSINESS DAY" means any day which is not a Saturday, Sunday or a bank
or public holiday in Northern Ireland;
"BUSINESS INTELLECTUAL PROPERTY" means Intellectual Property owned by
the Seller or any member of the Seller's Group and used wholly and
exclusively in the Business, together with the goodwill relating
thereto;
"BUYER'S GROUP" means the Buyer, its parent, any of its parent's
subsidiary undertakings and their associated companies from time to
time, all of them and each of them as the context admits;
"BUYER'S SOLICITORS" means L'Estrange and Xxxxx Solicitors, Xxxxxx
Xxxxx, 00-00 Xxxxxx Xxxxxx, Xxxxxxx XX0 0XX;
"COMPLETION" means the completion of the sale and purchase of the
Business and Assets in accordance with clause 4;
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"COMPLETION DATE" means 2 December 2003 or such other date as the
Seller and Buyer may agree;
"CONFIRMED ORDERS" shall have the meaning attributed to it in the
Supply Agreement;
"CONNECTED PERSON" means a person who is connected with another for the
purpose of section 839 of the TA;
"CONTRACTS" means all contracts and arrangements entered into prior to
Completion by the Seller's Group but which are wholly or partly
unperformed at the Completion Date relating to the Business set out in
the list in the Agreed Form headed "Contracts" at schedule 4 to this
agreement but excluding those contracts which are Excluded Assets;
"CREDITORS" means all trade and other debts, accrued charges and all
other amounts owing by the Seller or any member of the Seller's Group
in connection with the Business as at Completion;
"DEED OF COVENANT" means the deed of covenant in the Agreed Form to be
entered into between the Buyer and Xxxxx Holdings at Completion;
"DISCLOSURE LETTER" means an Agreed Form letter of today's date
together with the attachments thereto addressed by the Seller to the
Buyer disclosing exceptions to the Warranties in the Agreed Form;
"ELECTION NOTICES" means the notices to be prepared by each party for
the purposes of section 198 of the Capital Allowances Act 2001 in the
Agreed Form;
"ENCUMBRANCE" means any mortgage, charge, pledge, lien, security or
other third party right or interest (legal or equitable) or restriction
over or in respect of the use of the relevant asset, security or right
save for the third party rights disclosed to the Buyer in the
Disclosure Letter in relation to the Properties;
"EXCLUDED ASSETS" means any assets or rights and the benefit of any
claims consisting of or comprised in the following:
(a) statutory books and records of the Seller (other than the
Books and Records);
(b) Retained Employees;
(c) benefits from insurance policies put in place by the Seller's
Group in relation to the Business and/or the Assets;
(d) Receivables;
(e) the Stock;
(f) cash at bank and in hand;
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(g) the Genzyme Contracts;
(h) the Client Equipment and Special Tools (set out in Appendix 6
of the Genzyme Contracts dated June 2001);
(i) any prepayments received by the Seller or the Seller's Group
in relation to the Business which are governed by clause 9 of
this agreement;
(j) the MHRA Licences;
(k) the equipment and tools set out in Appendix 2 of the
manufacturing and supply agreement, dated 1 June 202 between
the Seller and Schering-Plough Limited;
(l) finished goods comprising stock of the Business held at the
Properties or elsewhere as at Completion; and
(m) the Retained IT Equipment, Assets and Contracts.
"EXCLUDED LIABILITIES" means those liabilities and obligations of the
Business or Assets or (subject to clause 10.6) Assumed Employees as at
the Completion Date which are not Liabilities which shall include but
are not limited to:
(a) liabilities of the Seller's Group to Taxation;
(b) amounts owed to any third party by way of overdraft or other
borrowings; and
(c) Creditors of the Business;
"FIXED PLANT" means the fixed plant, machinery, equipment and tooling
used directly and exclusively in the Business attached or fixed to the
Properties occupied by Xxxxx as at the date hereof;
"XXXXX HOLDINGS" means Xxxxx Holdings plc (registered number NI25836),
whose registered office is at Xxxx 00, Xxxxxx Xxxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx Xxxxxxx XX00 0XX;
"XXXXX LEASE" means the lease, in the Agreed Form, of part of the
Properties to be entered into on Completion between the Buyer (1) and
the Seller (2);
"XXXXX MARKETING AUTHORISATIONS" means those licences set out in the
list in the Agreed Form headed "Xxxxx Marketing Authorisations" at
Schedule 5 to this agreement;
"GENZYME CONTRACTS" means (i) the Manufacturing and Supply Agreement
dated 1 June 2000 between the Seller and Renegal LLC and (ii) the
Manufacturing and Supply Agreement dated 15 June 2001 between Xxxxx
Limited (1) Renagel LLC (2) and Genzyme Corporation (3) and those
agreements entered into pursuant to the same, including any variation
thereof;
"GENZYME SIDE LETTER" means the letter from the Seller in the Agreed
Form in respect of the conduct of the Genzyme Contracts;
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"GOODWILL" means the goodwill, custom and connection relating to the
Business as at Completion together with the exclusive right for the
Buyer and its successors and assigns to represent itself as carrying on
the Business in succession to the Seller and together with the trade
name "PDMS" associated with the Business;
"HIRE PURCHASE AGREEMENTS" means those agreements with First Trust and
NIIB summarised in Schedule 9;
"HOLDING COMPANY" has the meaning given to it in Article 4 of The
Companies (Northern Ireland) Order 1986 (as amended);
"I.N.I." means Invest Northern Ireland (formerly the Industrial
Development Board for Northern Ireland) a statutory corporation
established under the Industrial Development Act (Northern Ireland)
2002 of 00 Xxxxxxxxxx Xxxxxx, Xxxxxxx, XX0 0XX;
"INTELLECTUAL PROPERTY" means any and all patents, registered and
unregistered trade marks, rights in designs, trade, business or domain
names, copyrights, rights in inventions, know-how, trade secrets and
other confidential information, rights in databases and other
intellectual property rights of a similar or corresponding character
which may subsist in any part of the world;
"INTERIM PERIOD" means the period of up to fifteen weeks (or such
longer period as the parties may agree in writing) commencing on the
Completion Date;
"INTERMEDIATES" means work in progress produced in the course of the
Business and stored at the Properties as at Completion;
"IT CONTRACTS" means the contracts relating to IT Equipment set out in
Part 2 of Schedule 7;
"IT EQUIPMENT AND ASSETS" means the IT equipment and assets set out in
Part 1 of Schedule 7;
"IVEX BUSINESS" has the meaning set out in the definition of "Business"
above;
"IVR BUSINESS" has the meaning set out in the definition of "Business"
above;
"LEASES" means the following:
(a) a lease dated 2 March 1989 between (1) Department of Economic
Development and (2) the Seller; and
(b) a lease dated 1 August 1969 between (1) Craigavon Development
Commission and (2) Northern Ireland Carriers Limited (subject
to the Assignment);
"LETTERS OF OFFER" means a letter of offer dated 3 March 1998 from IDB
to Xxxxx Holdings and a financial assistance agreement dated 13 May
1999 between IDB and Xxxxx Holdings under which IDB agreed to grant
financial assistance to Xxxxx Holdings;
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"LIABILITIES" means those liabilities of the Business relating to the
Assets and the Leases, the obligations under the Contracts and the
liabilities relating to the Assumed Employees at the Completion Date
which the Buyer has expressly assumed responsibility for under the
terms of this agreement and which are not Excluded Liabilities;
"LISTING RULES" means the listing rules of the UK Listing Authority
made pursuant to Part VI of the Financial Services and Markets Xxx
0000;
"LONDON STOCK EXCHANGE" means London Stock Exchange plc;
"LOOSE PLANT" means the movable plant, machinery, equipment, desk top
computers, spare parts, tooling, vehicles and furniture used directly
and exclusively in the Business;
"MHRA" means the Medicines and Healthcare Products Regulatory Agency;
"MHRA LICENCES" means the Manufacturing and Assembly Licence dated 13
May 2003, the Manufacturing and Assembly - Specials Licence dated 13
May 2003, the Wholesale Dealers Licence dated 14 April 2003 and the
Wholesale Dealers (Import) Licence dated 28 February 2003 granted to
Xxxxx by the Medicines and Healthcare Products Regulatory Agency;
"MODEL CODE" the code as set out in Chapter 16 of the Listing Rules;
"PROPERTIES" means the premises set out in schedule 6 to this agreement
and "PROPERTY" shall mean any one of them;
"RECEIVABLES" means those amounts owed to the Seller or the Seller's
Group directly and exclusively in connection with the Business as at
the Completion Date;
"REGULATIONS" means the Transfer of Undertakings (Protection of
Employment) Regulations 1981;
"RELATED PERSONS" means, in relation to any party, its holding
companies and the subsidiary undertakings and associated companies from
time to time of such holding companies, all of them and each of them as
the context admits;
"RESTRICTED SERVICES" means services the nature of which are carried on
by the Business as at the date hereof, including for the avoidance of
doubt those services carried out by the Business as at Completion;
"RESTRICTED TERRITORY" means England, Wales, Scotland, the Republic of
Ireland and the province of Northern Ireland;
"RETAINED EMPLOYEES" means the persons whose names are set out in the
list in the agreed form headed "Retained Employees";
"RETAINED IT EQUIPMENT, ASSETS AND CONTRACTS" means all the IT
equipment, assets and contracts owned by any member of the Sellers
Group which is not expressly set out in Parts 1 and 2 of Schedule 7;
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"SELLER'S ACCOUNTANTS" means PricewaterhouseCoopers, Xxxxxxxxxx Xxxxx,
0 Xxxxxxxxx Xxxx, Xxxxxxx, XX0 0XX;
"SELLER'S GROUP" means the Seller, Xxxxx Holdings and any subsidiary of
Xxxxx Holdings;
"SELLER'S SOLICITORS" means Ashurst Xxxxxx Xxxxx, Xxxxxxxxx Xxxxx, 0
Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX;
"STOCK" means raw materials and packaging materials acquired in the
course of the Business at the Properties as at Completion and, for the
avoidance of doubt, the parties acknowledge that the references to
"Stock" in clause 8 of this Agreement shall be a reference to the Stock
of the Business at Completion excluding any free issue material,
including without prejudice to the foregoing, any bulk capsules of
Isodur;
"SUB-LEASE" means a sub-lease dated 4 January 2002 between (1) Xxxxx
Limited and (2) Xxxxxx Limited (as varied by a deed of variation dated
30 March 2002);
"SUBSIDIARY" has the meaning given to it in Article 4 of The Companies
(Northern Ireland) Order 1986 (as amended);
"SUPPLY AGREEMENT" means the manufacturing, packaging, labelling,
testing for release-to-market, QP release, storage and despatch
agreement in the Agreed Form to be entered into between the Seller and
the Buyer at Completion;
"TA" means the Income and Corporation Taxes Xxx 0000;
"TAXATION" means any tax and any duty, impost, levy or governmental
charge in the nature of tax whether domestic or foreign and any fine,
penalty or interest connected therewith (a) including (without
prejudice to the generality of the foregoing) corporation tax, income
tax, national insurance and social security contributions, capital
gains tax, inheritance tax, capital transfer tax, development land tax,
value added tax, customs, excise and import duties, any deferred
taxation and any other payment whatsoever which the relevant party or
any member of their group of companies is or may be or become bound to
make to any person as a result of any enactment relating to any of the
foregoing (b) but excluding any stamp duty or stamp duty reserve tax
payable on this agreement or any instrument executed pursuant to this
agreement;
"TECHNICAL AGREEMENT" means the technical agreement in the Agreed Form,
to be entered into between the Seller and Buyer at Completion;
"TRANSITIONAL SERVICES AGREEMENT" means the agreement for transitional
IT and support services in the Agreed Form, to be entered into between
the Seller and the Buyer at Completion;
"UK LISTING AUTHORITY" means the Financial Services Authority in its
capacity as the competent authority for the purposes of Part VI of the
Financial Services and Markets Xxx 0000; and
"WARRANTIES" means the warranties given pursuant to clause 13 and
schedule 2;
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1.2 The words and expressions defined in the schedules hereto shall have
the meanings set out therein.
1.3 References to the "parties" or the "Parties" hereto shall include their
respective permitted assignees and in the case of individuals their
respective successors in title, personal representatives, heirs and
estates and references to the masculine gender shall include the
feminine and vice versa.
1.4 References to statutes or statutory provisions include references to
any orders or regulations made thereunder and references to any
statute, provision, order or regulation include references to that
statute, provision, order or regulation as re-enacted from time to time
before the date hereof (subject as otherwise expressly provided herein)
and to any previous statute, statutory provision, order or regulation
amended, modified, re-enacted or replaced by such statute, provision,
order or regulation before the date hereof.
1.5 References to persons shall include bodies corporate and
unincorporated, associations, partnerships and individuals.
1.6 Headings to clauses and paragraphs are for information only and shall
not form part of the operative provisions of this agreement and shall
be ignored in construing the same.
1.7 References to recitals, clauses or schedules are to recitals to,
clauses of and schedules to this agreement.
1.8 The recitals, the schedules and documents in the Agreed Form form part
of the operative provisions of this agreement and references to this
agreement shall, unless otherwise expressly stated, include references
to the recitals, the schedules and documents in the Agreed Form.
2. SALE AND PURCHASE
2.1 Upon the terms and subject to the conditions of this agreement, the
Seller shall sell as beneficial owner and shall transfer or procure the
sale or transfer of the Assets and the Business as a going concern to
the Buyer with effect from the Completion Date (unless otherwise
specified in this agreement) free from any Encumbrances and together
with all accrued benefits and rights attaching thereto and property and
risk in the Assets shall vest in the Buyer from Completion.
2.2 The Excluded Assets are not included in the sale and purchase pursuant
to clause 2.1.
2.3 The Consideration for such sale and purchase shall be as specified in
clause 3.
2.4 Nothing in this agreement shall pass to the Buyer or shall be construed
as acceptance by the Buyer of any liability, debt or other obligation
of the Seller or any members of the Seller's Group other than the
Liabilities or any obligation which is expressly assumed by the Buyer
under the terms of this agreement
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2.5 I.N.I. granted financial assistance to Xxxxx Holdings pursuant to the
Letters of Offer part of which was used by Xxxxx Holdings to purchase
some of the Assets ("THE RELEVANT ASSETS"). Subject to the provisions
of clause 2.6 and 2.7 below, upon delivery of the Relevant Assets to
the Buyer at Completion, the Buyer shall (subject to it being entitled
to receive any associated benefits) assume and become responsible for
the outstanding obligations and liabilities of Xxxxx Holdings to I.N.I.
as at Completion associated with the Relevant Assets as set out in
Appendix 2 to this agreement (the "ASSUMED I.N.I. LIABILITIES") and the
Buyer shall indemnify and keep Xxxxx Holdings indemnified in respect of
all claims, costs, expenses and demands following Completion arising
from The Assumed I.N.I. Liabilities excluding any obligations or
liabilities arising from facts or circumstances which have occurred
prior to Completion.
2.6 Xxxxx Holdings shall indemnify and keep the Buyer indemnified in
respect of all claims, costs, expenses and demands arising prior to
Completion in respect of the Assumed I.N.I. Liabilities.
2.7 For the avoidance of doubt, the Buyer shall not assume any liabilities
of Xxxxx Holdings and/or the Seller to I.N.I other than the Assumed
I.N.I. Liabilities expressly set out in Appendix 2 to this agreement
whether arising under the Letters of Offer or otherwise and Xxxxx
Holdings and/or the Seller shall indemnify and keep the Buyer
indemnified in respect of all other claims costs expenses and demands
arising in respect of the Letters of Offer or any other financial
assistance granted by I.N.I. to Xxxxx Holdings or the Seller at any
time.
3. CONSIDERATION
The consideration shall be the sum of twenty million pounds sterling
(L20,000,000), to be satisfied by the Assumed Credit Amount under
the Agreed Credit Amount Side Letter with the balance payable in cash
on Completion. The Consideration shall be apportioned amongst the
Assets as more particularly set out in schedule 1 to this agreement.
4. COMPLETION
4.1 Completion shall take place at the registered office of the Seller (or
at such other location as the Seller and Buyer agree) on the Completion
Date immediately after the execution of this agreement.
4.2 On Completion, the Seller shall make available to the Buyer at the
Properties:
(a) the Books and Records;
(b) the Loose Plant and shall deliver all other Assets hereby
agreed to be sold, title to which can be transferred by
delivery (and shall pass upon such delivery) and shall permit
the Buyer to enter into and take possession of the Assets;
and shall deliver to the Buyer:
(c) where agreed as necessary between the parties, duly executed
assignments or registered user agreements of the Business
Intellectual Property in the Agreed Form;
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(d) where agreed as necessary between the parties, releases under
seal or certificates of non-crystallisation of charge of any
Encumbrances to which any of the Assets are subject duly
executed by those entitled to the benefit thereof;
(e) duly executed land registry transfers in the Agreed Form in
respect of those parts of the Properties that consist of a
registered title;
(f) a duly executed land registry transfer of 000 Xxxxxxxxx Xxxx
in the agreed form;
(g) a duly executed deed of assignment in respect of the Leases in
relation to which the provisions of clause 21.2 shall apply;
(h) a duly signed Genzyme Side Letter and Agreed Credit Amount
Side Letter;
(i) all documents of title and certificates for the operation and
use of, and all service documents within the possession of the
Seller pertaining to, the Fixed Plant and the Loose Plant and
make available Stock and stock records to the Buyer;
(j) the Contracts and the books, accounts, reference lists of
customers, credit reports, price lists, cost records,
catalogues, advertising and all other documents, papers and
records in the possession or under the control of the Seller
relating to the Contracts duly written up to the Completion
Date;
(k) all such records (or copies if the originals have been
properly retained) as are referred to in section 49 of the
Value Added Tax Xxx 0000;
(l) a copy of the minutes of a meeting of the directors of the
Seller in the Agreed Form authorising the execution by that
party of this agreement and of any other documentation that
may be necessary or desirable arising out of or in connection
with this agreement or the transactions contemplated thereby
and appointing the relevant signatory or signatories to sign
this agreement and any such other documentation on its behalf;
(m) originals and counterparts of the Supply Agreement, the
Transitional Service Agreement, the Deed of Covenant and the
Technical Agreement duly executed by the Seller; and
(n) duly signed Election Notices.
4.3 Upon compliance by the Seller with the provisions of clause 4.2 the
Buyer shall:
(a) provide for the electronic transfer of funds of the sum
referred to in clause 3 to a bank account designated by the
Seller, and in the event of the sum being transferred to the
client account of the Seller's Solicitors, the receipt of the
Seller's Solicitors therefore be a good discharge to the
Buyer;
(b) deliver to the Seller the originals and counterparts of the
Supply Agreement, the Technical Agreement, the Transitional
Service Agreement and the Deed of Covenant duly executed by
the Buyer; and
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(c) deliver to the Seller duly signed Election Notices.
4.4 Immediately following the transfer of funds and delivery of the
counterparts of the documentation referred to in clause 4.3, the Buyer
and Seller shall:
(a) enter into the Xxxxx Lease;
(b) enter into a licence in the Agreed Form to provide for
occupancy rights for the Seller for a period of three months
from Completion in respect of Building 1; and
(c) submit a joint notification to the Medicines and Healthcare
Products Regulatory Agency confirming that Completion has
taken place.
4.5 As soon as practicable following Completion and, in any event, within
the time limit specified by section 201 of the Capital Allowances Xxx
0000, each party shall deliver a copy of the Election Notices, duly
signed by both parties, to their respective Inspector of Taxes.
5. LIABILITIES
5.1 The Seller shall indemnify and keep indemnified each member of the
Buyer's Group against all claims, costs, expenses and demands arising
following Completion in respect of all debts, liabilities and
obligations of the Business including, subject to the provisions set
out in clause 5.1(a) below, the Liabilities and the Excluded
Liabilities (save for any claims, costs, expenses and demands arising
from the Assumed I.N.I. liabilities following Completion), provided
that:
(a) in respect of the Liabilities and the Assumed I.N.I.
liabilities (other than any such Liabilities relating to
Assumed Employees which shall be dealt with between the
parties pursuant to the terms of clause 10 of this agreement)
such claim, cost, expense or demand arises in relation to the
period prior to the Completion Date;
(b) in respect of the Excluded Liabilities, such claim, costs,
expenses or demands arises at any time whether before and/or
after Completion;
(c) such claim, cost, expenses or demand relates solely to the
Business (whether or not as part of the Seller's Group);
(d) the Seller shall not be liable to pay or perform any such
claims, costs, expenses or demands to the extent that such
arises from or has increased due to any actions taken or
omissions made by the Buyer or any member of the Buyer's Group
following Completion; and
(e) the Seller shall not be liable for such claims, costs or debt
arising in the ordinary course of trade in respect of the
contractual obligations of the Seller's Group or the Business,
save where such claims, costs or any debt arise from any
breach or non-performance of those contractual obligations by
the Seller's Group prior to Completion.
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5.2 The Buyer shall indemnify and keep indemnified each member of the
Seller's Group against all claims, costs, expenses or demands arising
in respect of the Liabilities of the Business provided that:
(a) such claim, cost, expense or demand arises in relation to any
matter arising following Completion; and
(b) the Buyer shall not be liable to pay or perform any such
claims, costs, expenses or demands to the extent that such
arises from or has increased due to any actions taken or
omissions made by the Seller or any member of the Seller's
Group prior to the Completion Date.
6. RECEIVABLES
6.1 The Buyer shall not acquire the Receivables which shall remain the
property and the responsibility of the Seller.
6.2 The Seller and the Buyer shall cause to be prepared from the accounting
records of the Business a list of the Receivables showing (inter alia)
the names of the debtors and the amounts owing to the Seller or any
member of the Seller's Group by each of the relevant debtors.
6.3 Notwithstanding that the Receivables are excluded from the Assets
hereby agreed to be sold the Buyer agrees that it will, as agent for
the Seller, use all reasonable endeavours to collect the Receivables
(to the extent not collected upon Completion) and will hold the sums of
money representing the same upon trust for the Seller subject to the
following terms and conditions or such other terms, conditions or
arrangements as may be agreed from time to time in writing between the
Seller and the Buyer:
(a) the Buyer shall not without the prior written consent of the
Seller effect any settlement compromise or release any claim
in respect of any of the Receivables nor without such consent
institute, carry on, defend, compromise, abandon or submit to
judgment in any legal proceedings or join in and submit to
arbitration or give security or indemnities for costs, pay any
sum of money into court or obtain payment of money lodged in
court;
(b) if it becomes apparent that recovery of any of the Receivables
is not likely to be possible within a reasonable period unless
legal proceedings are instituted the Buyer will advise the
Seller in writing and furnish the Seller with particulars of
the steps taken by the Buyer to effect recovery. Where the
debtor in question is a continuing debtor of the Business
after the Completion Date the Seller shall consult with the
Buyer before instituting any legal proceedings;
(c) The Seller shall not seek to recover Receivables direct but
shall inform the Buyer of any payments that may be made to the
Seller in respect thereof;
(d) Within ten Business Days of the end of each month commencing
after Completion the Buyer shall provide the Seller with a
statement of the Receivables collected in that month (or, in
the case of the first such month, the period between
Completion and the
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end of such month) and shall remit to the Seller the amounts so
received during that period;
(e) After the expiration of six months from Completion the
obligations of the Buyer under this clause 6 to collect
Receivables on behalf of the Seller shall cease save that if
thereafter any payments are made to the Buyer in respect of
Receivables the Buyer shall remit the same to the Seller less
its reasonable costs and expenses; and
(f) the Seller shall pay all reasonable expenses of the Buyer
properly incurred directly in connection with the collection
of Receivables and any other such fee or payment as shall be
agreed between the parties hereto.
7. CONTRACTS
7.1 The Seller undertakes with effect from the Completion Date to assign to
the order of the Buyer or to procure the assignment to the order of the
Buyer all the Contracts and the IT Contracts which are capable of
assignment without the consent of other parties or without breaching
the terms of such IT Contracts and Contracts.
7.2 In so far as any of the IT Contracts and Contracts are not assignable
to the Buyer without the agreement of or novation by or consent to the
assignment from another party this Agreement shall not constitute an
assignment or attempted assignment if such assignment or attempted
assignment would constitute a breach of such IT Contracts and
Contracts.
7.3 If any of the IT Contracts and Contracts cannot be assigned or novated
to the Buyer without the consent of a third party, then each of the
Seller and the Buyer shall use their respective reasonable endeavours
to obtain such consent.
7.4 In any case where the consent in clause 7.3 above is refused or
otherwise not obtained and until it is obtained or where any of the IT
Contracts and Contracts are incapable of transfer to the Buyer by
assignment or by other means:
(a) the Seller shall hold those IT Contracts and Contracts and any
monies, goods or other benefits received thereunder as agent
of and trustee for the Buyer and shall forthwith upon receipt
of the same account for and pay or deliver to the Buyer such
monies, goods and other benefits;
(b) the Buyer shall perform those IT Contracts and Contracts in
accordance with their terms and conditions as sub-contractor
to the Seller provided that sub-contracting is permissible
under the terms of the IT Contracts and Contract in question,
and where sub-contracting is not permissible, the Buyer shall
perform the IT Contracts and Contracts in accordance with
their terms and conditions as agent for the Seller and
indemnify and keep indemnified the Seller against all
obligations, debts, costs, claims, demands, expenses and
damages in respect thereof; and
(c) the Seller shall give all reasonable assistance to the Buyer
at the cost of the Buyer to enable it to enforce the rights of
the Seller under the IT Contracts and Contracts and shall at
all times act with regard to the IT Contracts and Contracts in
accordance with the Buyer's reasonable instructions from time
to time and will, at the cost of the Buyer,
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provide access to all relevant books, documents and other
information in relation to such IT Contracts and Contracts as
is within its possession or the possession of the Seller's
Group and as the Buyer may reasonably request from time to
time.
7.5 To the extent that any payment is made to the Seller in respect of the
IT Contracts and Contracts on or after the Completion Date the Seller
shall receive the same as trustee, shall record such payment separately
in its books and shall account to the Buyer for the same on the
Completion Date or if received thereafter within seven Business Days of
receipt.
7.6 If, for any reason, the Seller is unable to procure the assignment to
the Buyer of the Software Licences required to operate the CS3 Software
System as set out in Part 2 of Schedule 7 to this Agreement (the "CS3
LICENCES") and, in the Buyer's reasonable opinion, such inability to
assign the CS3 Licences has a material impact on the Buyer's ability to
operate the Business in the same manner as it is operated on a
day-to-day basis by the Seller at Completion, the Buyer shall be
entitled to obtain such number of new software licences as are required
to operate the Business in the same manner as it is operated by the
Seller at Completion (the "REPLACEMENT CS3 LICENCES") provided that the
Seller shall reimburse the Buyer the cost of obtaining the Replacement
CS3 Licences within 5 Business Days of demand by the Buyer. Nothing in
this clause shall release the Buyer from its obligations to mitigate
its loss pursuant to this clause 7.
8. STOCK AND INTERMEDIATES
8.1 The Seller shall retain legal and beneficial title to the Stock
exclusively subject to the provisions of this clause. The Stock shall
remain the property of the Seller and no title shall pass to the Buyer
until such time as the Stock is paid for in full by the Buyer. Unless
otherwise expressly permitted by this agreement the Buyer shall not
perform any act or make any statement directly or indirectly
inconsistent with the exclusive title of the Seller to the Stock.
8.2 The Seller shall within fourteen days of Completion deliver to the
Buyer a statement of the value of the Stock which shall include a full
inventory of the Stock following a physical stock-take carried out at
each of the locations from which the Business is carried on with
representatives of both the Seller and the Buyer present (the "STOCK
VALUATION"). During this stock-take the Seller and Buyer shall jointly
use all their reasonable endeavours to procure that any obsolete stock
within the Stock is identified. Any such items of Stock which are
identified by both parties as obsolete shall be destroyed by the Buyer
(unless expressly agreed to the contrary) and the Seller will reimburse
the Buyer for all reasonable costs incurred in this destruction
process.
8.3 The Stock shall be valued at cost. The Seller shall comply with any
reasonable requests of the Buyer's representatives for evidence or
information to verify the cost of the Stock.
8.4 The Buyer shall confirm its agreement to the Stock Valuation within
seven days of receipt of the same (or within such longer period as
shall be agreed in writing between the parties). In the event the Stock
Valuation is not confirmed within such agreed period, any dispute with
respect to the determination of the value of any part of the Stock
shall be referred for final settlement to a firm of chartered
accountants nominated jointly by the Seller and the Buyer or, failing
such nomination within 14 days after a request for determination by
either the Seller or
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the Buyer, nominated at the request of either of them by the President
for the time being of the Ulster Society of the Institute of Chartered
Accountants in Ireland. The accountants shall be entitled to call for
submissions from both the Buyer and the Seller as to objections in
relation to the valuation of the Stock and may call for and inspect
such documents as they may reasonably consider necessary. In making
their determination, the accountants shall act as experts and not as
arbitrators, their decision shall (in the absence of manifest error) be
final and binding on the parties and their fees shall be borne and paid
by the Seller and the Buyer in such proportions as the accountants
determine.
8.5 The accountants appointed as experts pursuant to this clause shall, in
giving their determination, state what adjustments (if any) are
necessary to the valuation in such form as it stands at that time, in
respect of the matters in dispute in order to comply with the
requirements of this agreement and shall give its reasons therefore and
shall make such determination as soon as is reasonably practicable
after their appointment and in any event by not later than 30 days
after their appointment.
8.6 For such time as there shall be any Stock retained by the Seller, the
Buyer shall maintain such Stock at the Properties in such condition as
the Seller's Group may reasonably instruct and the Buyer shall be under
an obligation to maintain the Stock in the same condition as evidenced
by the stock-take undertaken in accordance with clause 8.2.
8.7 The Seller shall have the right to inspect the Stock from time to time
whilst it remains the property of the Seller or the Seller's Group and
the Buyer shall be obliged to comply with all reasonable requests of
the Seller or its agents in respect of inspection of the Stock.
8.8 The Buyer shall have the right to remove or to use the Stock in the
normal course of its business on the terms and conditions of this
clause 8. Unless otherwise expressly permitted by this agreement the
Buyer shall at no time remove the Stock or any part of it or allow it
or any part of it to be removed from its place of storage at the
Properties.
8.9 The Buyer shall inform the Seller of the level of Stock at the
Properties at the end of each month within 7 Business Days of the last
day of each month, and of the quantities of Stock which it has removed
during the preceding month in accordance with this clause 8.
8.10 For the avoidance of doubt, the Seller shall have no liability in
respect of delivery of the Stock.
8.11 The Buyer shall at all times keep the Stock marked clearly by batch
number, as being the property of the Seller. The Seller hereby consents
to the Stock being in the possession of the Buyer but such consent is
conditional upon the Stock remaining separate and clearly identified as
the property of the Seller as provided in this clause 8.11.
8.12 The Buyer shall keep an accurate and up-to-date inventory of the Stock
showing the description, quantity, shelf life and dates of delivery to
and removal of each item from the Stock. The Seller or its duly
appointed agents or servants shall be entitled at any reasonable time
to examine and take copies of such inventory and all other books,
records, invoices and other documents in the possession of the Buyer
relating to any part of the Stock.
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8.13 In the event that any Stock exceeds its shelf life, the Buyer shall
immediately notify the Seller and shall be obliged, if the Seller
wishes, to destroy such stock in accordance with accepted practice and
relevant regulations, provided that the Seller shall be liable for any
direct costs incurred by the Buyer in carrying out any such requests.
8.14 The Seller shall invoice the Buyer on a monthly basis for all items of
the Stock which the Buyer has removed during the preceding month, such
invoice to be based on information provided by the Buyer in accordance
with clause 8. The Buyer shall pay for the Stock within 30 days of the
date of the invoice in a manner specified by the Seller. The Stock
shall be invoiced to the Buyer at the value as per clause 8.3 plus
Value Added Tax. The Seller shall be entitled to charge interest on
overdue accounts at the rate of 2 per cent. per annum above the base
rate from time to time of Ulster Bank plc from the due date for payment
until receipt by the Seller of the full amount, both before and after
judgment. The Seller may suspend the supply of Stock to the Buyer where
any amounts are overdue under any order until all such amounts are
paid.
8.15 The Buyer hereby undertakes that the Stock is used in rotation, i.e. on
a "first in, first out" basis and further undertakes that the Stock
shall be utilised and purchased in preference to any stock purchased or
otherwise obtained by the Buyer or the Buyer's agents, representatives
or subcontractors either prior to or following Completion.
8.16 The Buyer acknowledges that no charges shall be made or shall be
payable by the Seller in respect of the warehousing services carried
out pursuant to this clause 8.
8.17 All expenses incurred in the storage, maintenance and administration of
the Stock after purchase shall be borne by the Buyer. Upon delivery of
the Stock on purchase by the Buyer, the risk in those goods shall pass
to the Buyer, which shall be wholly responsible thereafter for their
safe custody.
8.18 The Buyer shall at all times during the term of this agreement comply
with the requirements of any appropriate regulatory authority with
regard to the safe storage, handling and use of the Stock.
8.19 Neither party shall sell any Stock belonging to it unless it has first
granted to the other party the opportunity to purchase any such stock
at cost or the other party has given its consent in writing.
8.20 The Seller and Buyer shall jointly procure that at the stock-take
referred to in clause 8.2 above the value of the Intermediates is
determined and following this stock-take the Seller shall within
fourteen Business Days of Completion deliver to the Buyer a statement
of the value of the Intermediates (the "DRAFT INTERMEDIATES
VALUATION"). The Intermediates shall be valued in accordance with the
accounting policies and procedures set out in Schedule 8 of this
agreement.
8.21 The Buyer shall notify the Seller within fourteen Business Days of
receipt of the Draft Intermediates Valuation whether or not it accepts
the valuation for the purposes of this agreement.
8.22 If the Buyer notifies the Seller that it does not accept the Draft
Intermediates Valuation:
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(a) it shall, at the same time, set out in a notice in writing its
reasons in full for such non-acceptance and specify the
adjustments which, in its opinion, should be made to the Draft
Intermediates Valuation in order to comply with the
requirements of this agreement and deliver a copy of such
notice to the Seller; and
(b) the parties shall use all reasonable endeavours to meet and
discuss the objections of the Buyer and to reach agreement
upon the adjustments (if any) required to be made to the Draft
Intermediates Valuation.
8.23 If the Buyer is satisfied with the Draft Intermediates Valuation
(either as originally submitted or after adjustments agreed between the
Seller and the Buyer) or if the Buyer fails to notify the Seller of its
non-acceptance of the Draft Intermediate Valuation within the fourteen
Business Day period referred to in clause 8.21 above, then the Draft
Intermediates Valuation supplied by the Seller shall be deemed to
constitute the agreed Intermediates Valuation for the purposes of this
agreement the ("AGREED INTERMEDIATES VALUATION").
8.24 In the event that the parties do not reach an agreement over the value
of the Intermediates pursuant to clause 8.22 above, the value of the
Intermediates shall be referred for final settlement to a firm of
chartered accountants nominated jointly by the Seller and the Buyer or,
failing such nomination within 14 days after a request for
determination by either the Seller or the Buyer, nominated at the
request of either of them by the President for the time being of the
Ulster Society of the Institute of Chartered Accountants in Ireland.
The accountants shall be entitled to call for submissions from both the
Buyer and the Seller as to objections in relation to the Draft
Intermediates Valuation and may call for and inspect such documents as
they may reasonably consider necessary. In making their determination,
the accountants shall act as experts and not as arbitrators, their
decision shall (in the absence of manifest error) be final and binding
on the parties and their fees shall be borne and paid by the Seller and
the Buyer in such proportions as the accountants determine.
8.24 The accountants appointed as experts pursuant to this clause shall, in
giving their determination, state what adjustments (if any) are
necessary to the Draft Intermediates Valuation in such form as it
stands at that time, in respect of the matters in dispute in order to
comply with the requirements of this agreement and shall give their
reasons therefore and shall make such determination as soon as is
reasonably practicable after their appointment and in any event by not
later than 30 days after their appointment.
8.25 Within seven Business Days of the agreement or determination of the
Value of the Intermediates, or as otherwise agreed between the Parties,
the Buyer shall make a payment to the Seller of an amount equal to the
sum specified as the aggregate value of the Intermediates in the Agreed
Intermediates Valuation as per clause 8.20 plus Value Added Tax
together with interest on the principal amount thereof at the rate of 2
per cent. per annum above the base rate from time to time of Ulster
Bank plc computed from the date the payment is due pursuant to this
clause 8.25.
9. PREPAYMENTS BY SELLER AND CUSTOMERS
9.1 The following provisions shall apply in respect of any prepayments to
or by the Seller's Group in relation to the Business only:
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(a) the Seller shall account to the Buyer for all prepayments
received by the Seller's Group in respect of any Contracts not
wholly completed or discharged at Completion by the Seller's
Group to the extent that such prepayments exceed the actual
costs incurred by the Seller's Group (if any) in partially
performing such contracts and arrangements prior to
Completion; and
(b) the Buyer shall account to the Seller for all payments made by
the Seller's Group in respect of any Contracts not wholly
completed or discharged at Completion by suppliers of goods
and services to the extent that such payments exceed the value
of goods and/or services already supplied prior to Completion.
9.2 All rates, water, gas, electricity and telephone charges, salaries,
wages, and other outgoings and costs of a periodic nature which are
chargeable by reference to a period commencing before and ending after
Completion shall be apportioned on a time basis pro rata (provided that
any such outgoings or costs chargeable by reference to the extent of
the user of any property or rights shall be apportioned between the
Seller and the Buyer according to the extent of such user). For the
avoidance of doubt, any rent which shall be payable following
Completion by the Seller under the provisions of clause 21.2 shall not
be so proportioned but instead the Buyer shall procure that the total
amount of such rent payable shall be reimbursed in full to the Seller
or such member of the Seller's Group as shall have paid such rent as if
such payment was an apportionment under the provisions of clause 9.3.
9.3 Where any amounts are to be apportioned under this agreement, the
Seller shall provide the Buyer with details of the apportionments with
supporting vouchers or similar documentation, and in the absence of
dispute between the Seller and the Buyer, the appropriate payment shall
be made by or to the Seller in accordance with the terms of this clause
9. If the amount of any apportionment is in dispute, the matter shall
be referred for final settlement to a firm of chartered accountants
nominated jointly by the Seller and the Buyer or, failing such
nomination, within 14 days after request by either the Seller or the
Buyer, nominated at the request of either of them by the President for
the time being of the Ulster Society of the Institute of Chartered
Accountants in Ireland. The accountants shall be entitled to call for
and inspect such documents as they may reasonably consider necessary.
In making their determination, the accountants shall act as experts and
not as arbitrators, their decision shall (in the absence of manifest
error) be final and binding on the parties and their fees shall be
borne and paid by the Seller and the Buyer in such proportions as the
accountants determine. The amount determined to be due in accordance
with this clause shall be paid within 14 days of the date of
determination, together with interest calculated on a daily basis (as
well after as before judgment), from the date of determination until
the date of actual payment, at the rate of 2 per cent per annum above
the base lending rate from time to time of Ulster Bank Limited.
9.4 In relation to any expenditure or outgoing of the Business which is
consideration for a taxable supply and which is apportioned under this
clause 9 that part of the amount of the expenditure or outgoing which
is input tax for the purposes of VAT shall be apportioned to the party
which is entitled to recover such input tax or obtain credit for it
pursuant to the Value Added Tax Xxx 0000. In relation to any receivable
of the Business which is consideration for a taxable supply and which
is apportioned under this clause 8 that part of the amount of the
receivable which is output tax for VAT purposes shall be apportioned to
the party which is
- 20 -
obliged to account for such output tax to HM Customs & Excise pursuant
to the Value Added Tax Xxx 0000.
9.5 Any payment due between the parties pursuant to this clause 9 (save as
otherwise provided for in clause 9.3) shall be paid within thirty days
of Completion.
10. EMPLOYEES
10.1 The Seller and the Buyer acknowledge and agree that the sale and
purchase of the Business and Assets pursuant to this agreement will
constitute a relevant transfer for the purposes of the Regulations and
that it will not operate so as to terminate any of the contracts of
employment of the Assumed Employees.
10.2 The Buyer hereby undertakes to indemnify the Seller against all
liabilities, obligations, costs, losses, damages and demands arising
from or in respect of any of the Assumed Employees following
Completion, provided that and to the extent that such claims do not
arise either directly or indirectly due to any action or omission on
the part of the Seller prior to Completion.
10.3 If the contract of employment of any Assumed Employee is found (or
alleged) not to have effect after Completion as if originally made with
the Buyer, the Buyer agrees that:
(a) in consultation with the Seller, it will, or will procure that
it will within fourteen days of being informed of such finding
or allegation, make to the relevant Assumed Employee an offer
in writing to employ him under a new contract of employment to
take effect on the termination referred to below; and
(b) any such offer of employment made by the Buyer will be on
terms and conditions which when taken as a whole do not differ
in any material way from the terms and conditions of
employment of that Assumed Employee immediately before
Completion (save as to the identity of the employer).
Upon that offer being made (or at any time after the offer should have
been made if no offer is made) the Seller will terminate the employment
of the relevant Assumed Employee, and the Buyer shall indemnify the
Seller against all liabilities, obligations, costs, claims and demands
arising directly or indirectly out of the employment of that Assumed
Employee from Completion until such termination (up to a maximum of 6
months from Completion) and the Seller shall make available to the
Buyer the services of the employee concerned during such period.
10.4 If the contract of employment of any person who is immediately prior to
Completion employed by a member of the Seller's Group (other than an
Assumed Employee) is found or alleged to have effect after Completion
as if originally made with the Buyer or another member of the Buyer's
Group the Seller (on behalf of the relevant member of the Seller's
Group) agrees that:
(a) in consultation with the Buyer, it will, within fourteen days
of being so requested procure that a member of the Seller's
Group makes to that employee an offer in
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writing to employ him under a new contract of employment
subject to, and to take effect upon , the termination referred
to below; and
(b) the offer to be made will be on terms and conditions which
when taken as a whole do not differ in any material way from
the terms and conditions of employment of that employee
immediately before Completion.
Upon that offer being made (or at any time after the offer should have
been made if the offer is not made), the Buyer shall terminate the
employment of the employee concerned. The Seller (on behalf of the
relevant member of the Seller's Group) shall indemnify the Buyer
against all liabilities arising from the employment of that employee at
all times up until such termination (up to a maximum period of 6 months
from the Completion Date) and the termination of such employment and
the Buyer shall make available to the Seller the services of the
employee concerned during such period.
10.5 The Buyer confirms that it will not be taking any measures which would
give rise to an obligation on the Seller to consult under Regulation 10
of the Regulations.
10.6 The Buyer shall discharge and hereby undertakes to indemnify the Seller
against all liabilities, obligations, costs, claims, demands, actions,
awards, penalties and expenses (including, without limitation, all
reasonable legal and professional fees and expenses) arising from or in
respect of the Assumed Employees before Completion in respect of any
breach of Regulation 10(3) of the Regulations by the Buyer.
10.7 Subject to clause 10.6 above, the Seller shall discharge and hereby
undertakes to indemnify the Buyer against all liabilities, obligations,
costs, claims, demands, actions, awards, penalties and expenses
(including, without limitation, all reasonable legal and professional
fees and expenses) arising from or in respect of any of the Assumed
Employees before Completion.
10.8 The Seller shall discharge and hereby undertakes to indemnify the Buyer
against all liabilities, obligations, costs, claims, demands, actions,
awards, penalties and expenses (including, without limitation, all
reasonable legal and professional fees and expenses:
(a) arising from or in respect of any of the Retained Employees
provided that and to the extent that such claims do not arise
either directly or indirectly due to any action or omission on
the part of the Buyer prior to the date hereof; and
(b) by or in respect of any other person, agent, employee or
contractor of the Seller or any member of the Seller's Group
who claims (whether correctly or not) that the Buyer has
inherited liability from the Seller in respect of them by
virtue of the Regulations.
11. FUTURE TRADING AND TRADE ENQUIRIES
11.1 The Seller shall promptly refer to the Buyer all enquires relating to
the Business and assign to the Buyer all orders directly and
exclusively relating to the Business which it receives after Completion
for such period as the Seller remains subject to the undertaking set
out in clause 15.1(a) of this agreement.
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11.2 The Seller shall notify and keep informed the Buyer of any claims
against the Seller brought by any third party in respect of any
products or services supplied by the Seller in relation to the
Business. If the Seller considers that it is desirable to take
preventative action with a view to avoiding such claims, the Buyer
agrees that it shall consult with the Seller as to what preventative
action may be taken.
12. MHRA LICENCES
12.1 The Seller undertakes with effect from Completion to permit the Buyer
to operate the Business under the MHRA Licences for the Interim Period
or until the Buyer is granted licences in its name by the MHRA (the
"PDMS MHRA LICENCES") whichever is the earlier.
12.2 In consideration for the permission granted by the Seller in clause
12.1, the Buyer will procure that no acts are performed or amendments
or omissions made to the quality systems, processes and procedures
currently employed by the Seller or its agents or representatives in
carrying on the Business which may affect either directly or indirectly
the validity of the MHRA Licences and the Buyer shall hold harmless and
indemnify and keep indemnified the Seller and each member of the
Seller's Group against all losses, claims, expenses and damage
(including legal and other professional fees and expenses reasonably
and properly incurred) that result from the Buyer being in breach of
the provisions of this clause 12.2.
12.3 Both parties will use all their reasonable endeavours and perform all
such acts that may be reasonably necessary during the Interim Period to
ensure the PDMS MHRA Licences are granted and each party will provide
the other with any information they may reasonably request on the
progress of such applications.
13. VALUE ADDED TAX
13.1 All amounts expressed in this agreement as being payable by any party
hereto are expressed exclusive of any value added tax which may be
chargeable thereon and the amount of any such value added tax shall be
payable in addition thereto subject as hereinafter provided.
13.2 The Seller and the Buyer shall use all reasonable endeavours to ensure
that the conditions of article 5(1) of the Value Added Tax (Special
Provisions) Order 1995 SI 1268 and of section 49 of the Value Added Tax
Xxx 0000 are fulfilled so that the sale of the Business and Assets
hereunder is properly treated as neither a supply of goods nor a supply
of services for the purposes of value added tax.
13.3 The Seller and the Buyer shall each give notice of the transfer of the
Business and Assets to H.M. Customs and Excise.
13.4 The Seller shall on the Completion Date deliver to the Buyer all
records referred to in section 49(1) of the Value Added Tax Xxx 0000 in
respect of the Business and the Buyer hereby undertakes to preserve
such records for such periods as may be required by law and shall
during that period afford reasonable access to them at the request of
the Seller.
13.5 In the event that H.M. Customs and Excise determine that value added
tax is chargeable on the sale of the Business and Assets hereunder or
any of them, the Seller shall immediately notify the Buyer of such
determination and the Buyer agrees that such value added tax shall
- 23 -
be in addition to the Consideration and the Buyer shall (against
production by the Seller of tax invoices in respect thereof) pay the
amount of any such value added tax forthwith to the Seller but such
payment shall be without prejudice to the right of the Buyer under this
agreement to call upon the Seller to make or join in an appeal against
the aforesaid determination.
13.6 All value added tax payable in respect of goods and services supplied
or deemed to be supplied by the Seller in connection with the Business
prior to Completion, and all interest payable thereon and penalties
attributable thereto, shall be paid to H.M. Customs and Excise by the
Seller, and the Seller shall be entitled to receive and to retain for
its own benefit all reimbursement or credit from H.M. Customs and
Excise for value added tax borne by the Seller on goods and services
supplied to the Seller prior to Completion and any payments received in
respect of value added tax overpaid to H.M. Customs and Excise prior
thereto.
14. WARRANTIES
14.1 The Seller warrants to the Buyer in terms of the warranties in schedule
2 which shall remain in full force and effect after Completion as more
particularly set out in this agreement.
14.2 The Buyer hereby warrants that it has all requisite individual and
corporate power to enter into and perform this agreement and the
transactions and matters contemplated thereby and has taken all
necessary action to authorise the entry into and performance of this
agreement and the transactions and matters contemplated thereby.
14.3 Any information supplied by any Assumed Employee to the Seller or its
directors, employees, agents or advisers in connection with the
Warranties, or otherwise in relation to the Business and Assets shall
not constitute a representation or warranty or guarantee as to the
accuracy thereof by such employee and the Seller undertakes to the
Buyer (and its respective directors, officers, employees, agents and
advisers) that it will not bring and hereby waives any and all claims
which it may otherwise have against such employee in respect thereof
save in respect of fraud or fraudulent concealment.
14.4 Each of the Warranties shall be construed as a separate Warranty and
(save as expressly provided to the contrary) shall not be limited by
the terms of any of the other Warranties.
14.5 Save in the case of fraud or fraudulent concealment by the Seller, the
Seller shall be under no liability in respect of any claim under the
Warranties and any such claim shall be wholly barred and unenforceable
unless written notice of such claim setting out such details of the
events or circumstances giving rise to the relevant claim as are
available to the Buyer (including the grounds on which such claim is
based and, if capable of preparation by the Buyer, the estimated amount
claimed to be payable in respect thereof) shall have been served upon
the Seller by the Buyer as soon as possible after it becomes likely
that a claim will be made and, in any event:
(a) in the case of a claim under the Warranties, by not later than
5.00 p.m. on the day falling twelve months after the date
hereof; and
(b) the liability of the Seller for any claim specified in such
notice shall absolutely determine and cease (unless the amount
payable in respect of the relevant claim has been agreed as
settled or satisfied by the Seller within nine months of the
date of such
- 24 -
written notice) if legal proceedings have not been instituted
through being properly issued and validly served in respect of
such claim on the Seller within six months of the date of such
written notice.
14.6 Save in the case of fraud or fraudulent concealment, the Seller shall
be under no liability in respect of any claim under the Warranties:
(a) where the liability of the Seller in respect of that claim
would (but for this clause 14) have been less
than L5,000; or
(b) unless and until the liability in respect of that claim when
aggregated with the liability of the Seller in respect of all
other such claims (including any claims which would otherwise
have arisen save for the provisions of clause 14.6(a)) shall
exceed L200,000 at which time the Seller shall be liable for
the full amount of the claim not merely the excess over that
sum.
14.7 Save in the case of fraud or fraudulent concealment, the aggregate
liability of the Seller in respect of all claims under this agreement
shall not in any circumstances exceed the cash consideration paid to
the Seller under clause 3 of this agreement.
14.8 The Seller shall be under no liability in respect of any claim under
the Warranties if the facts or circumstances giving rise thereto have
been fairly disclosed in the Disclosure Letter prior to the entering
into of this agreement or are otherwise known to the Buyer or any
employees, officers or advisers to the Buyer at the date hereof. For
the purposes of this clause "fairly disclosed" shall mean disclosed in
such a manner and in such detail as to enable the Buyer to make a
reasonably well informed assessment of the matter.
14.9 No liability (whether in contract, tort or otherwise) shall attach to
the Seller in respect of any claim under the Warranties to the extent
that:
(a) the claim or the events giving rise to the claim would not
have arisen but for an act, omission or transaction following
Completion by or on behalf of the Buyer's Group otherwise than
in the ordinary and proper course of the Business as carried
on by the Seller at present or which would not have arisen but
for any claim, election or surrender or disclaimer relating to
Taxation made or omitted to be made or notice or consent given
or omitted to be given by the Buyer's Group under the
provisions of any statutes relating to Taxation the making,
giving or doing of which was assumed in computing the Taxation
liabilities of the Seller's Group for the purposes of the
Accounts;
(b) the claim occurs wholly or partly out of or the amount thereof
is increased as a result of:
(i) any change in the accounting principles or practices
of the Buyer's Group introduced or having effect
after Completion unless the same is introduced to
bring the accounting principles and practices into
line with generally accepted accounting principles
and practices in the UK in relation to a business of
the type carried on by the Business; or
- 25 -
(ii) any increase in the rates of Taxation made after
Completion and which affects matters occurring prior
thereto; or
(iii) any change in law or regulation or in its
interpretation or administration by the English or
Northern Irish courts, by the Inland Revenue or by
any other fiscal, monetary or regulatory authority in
each case occurring after Completion and which
affects matters occurring prior thereto;
(c) the loss or damage giving rise to the claim is actually
recovered by the Buyer's Group under any policy of insurance;
or
(d) the claim relates to a claim or liability for Taxation and
would not have arisen but for any winding-up or cessation of
trading after Completion of the Business or any part thereof.
14.10 No liability will arise and no claim may be made under any of the
Warranties to the extent that the matter giving rise to such claim is
remediable unless within the period of 30 days following the Buyer
becoming aware of such matter, the Buyer shall have given written
notice thereof to the Seller in accordance with this clause 14 and such
matter shall not have been remedied to the reasonable satisfaction of
the Buyer within that period of 30 days following the date of service
of such notice.
14.11 Clause 14.12 shall apply in circumstances where:
(a) any claim is made against the Buyer's Group which may give
rise to a claim by the Buyer against the Seller under the
Warranties; or
(b) the Buyer's Group is or may be entitled to make recovery from
some other person of any sum in respect of any facts or
circumstances by reference to which the Buyer has or may have
a claim against the Seller under the Warranties; or
(c) the Seller shall have paid to the Buyer an amount in respect
of a claim under the Warranties and subsequent to the making
of such payment the Buyer's Group becomes or shall become
entitled to recover from some other person a sum which is
referable to that payment.
14.12 In the circumstances provided in clause 14.11, the Buyer shall and
shall procure that the Buyer's Group shall:
(a) subject to receiving an undertaking from the Seller in respect
of all costs properly incurred thereby by the Buyer's Group,
promptly and diligently take all such action as the Seller may
reasonably request including the institution of proceedings
and the instruction of professional advisers approved by the
Seller (such approval not to be unreasonably withheld) to act
on behalf of the Buyer to avoid, dispute, resist, compromise,
defend or appeal against any such claim against the Buyer's
Group as is referred to in clause 14.11(a) or to make such
recovery by the Buyer' Group as is referred to in clause
14.11(b) or clause 14.11(c), as the case may be;
- 26 -
(b) not settle or compromise any liability or claim to which such
action is referable without the prior written consent of the
Seller which consent shall not be unreasonably withheld or
delayed; and
(c) in the case of clause 14.11(c) only, promptly repay to the
Seller an amount equal to the amount so recovered or, if
lower, the amount paid by the Seller to the Buyer, less, in
each case any costs incurred by the Buyer's Group in so
recovering or any Taxation incurred by the Buyer's Group on
the amount received.
14.13 The Buyer shall by way of covenant, but not as a condition precedent to
liability on the part of the Seller as soon as practicable:
(a) inform the Seller in writing of any fact, matter, event or
circumstance which comes to its notice or to the notice of the
Buyer's Group whereby it appears that the Seller is or is
likely to be liable to make any payment in respect of any
claim under the Warranties or whereby it appears the Buyer's
Group shall become or may become entitled to recover from some
other person a sum which is referable to a payment already
made by the Seller in respect of such a claim;
(b) thereafter keep the Seller informed of all material
developments in relation thereto; and
(c) provide at the cost of the Seller all such information and
documentation (no matter how it is recorded or stored) as the
Seller shall reasonably request and which the Buyer may
lawfully provide in connection therewith and also in
connection with any proceedings instituted by or against the
Buyer's Group under clause 14.12.
14.14 In the event that the Seller at any time after the date hereof shall
wish to take out insurance against its liability hereunder, the Buyer
undertakes to provide such information as the prospective insurer may
require before effecting such insurance.
14.15 The Buyer hereby warrants and confirms that at the date hereof, it has
not already formulated and is not aware of any claim it may have
against the Seller under the Warranties PROVIDED THAT such confirmation
shall not constitute a general waiver by the Buyer of any rights which
it may have under this agreement for breach of warranty arising from
information subsequently coming into the Buyer's possession which may
in the future form the basis of such a claim.
14.16 The Buyer will take or procure the taking of all such reasonable steps
and action as are necessary or as the Seller may reasonably require in
order to mitigate any claim under the Warranties and the Buyer's Group
shall act in accordance with such request subject to the Buyer being
indemnified by the Seller against all reasonable costs and expenses
incurred in connection therewith. Nothing in this agreement shall or
shall be deemed to relieve the Buyer of any common law or other duty to
mitigate any loss or damage incurred by it.
15. PROTECTION OF GOODWILL
15.1 In consideration of the Buyer entering into the sale and purchase of
the Business and Assets and subject to the provisions of clause 15.3
below, the Seller undertakes to and with the Buyer
- 27 -
that no member of the Seller's Group shall either directly or
indirectly and either solely or jointly with any other person (either
on its own account or as the agent of any other person) and in any
capacity whatsoever:
(a) for a period of three years from Completion (the "RESTRICTED
PERIOD"), carry on or be engaged, concerned or interested
(save as the holder of shares or debentures in a listed
company which confer not more than three per cent. of the
votes which could be cast at a general meeting of the company)
in any business which would compete with the Business within
the Restricted Territory. For the avoidance of doubt, the
following activities shall not be competing with the Business
for the purposes of clause 15.1:
(i) the carrying on by the Seller's Group of the Ivex
Business;
(ii) the carrying on by the Seller's Group of the IVR
Business; and
(iii) the sale or supply by any member of the Seller's
Group of those pharmaceutical products in respect of
which the Buyer or Buyer's Group provide
manufacturing or other services to any member of the
Seller's Group pursuant to the Supply Agreement (or
such agreement as shall replace the Supply Agreement
as agreed between the parties hereto); or
(b) during the Restricted Period, canvass or solicit orders from
any person who was a customer of the Business at any time
within the period of six months prior to Completion for the
provision of the Restricted Services; or
(c) for a period of two years from Completion, solicit or entice
away or endeavour to solicit or entice away from the Buyer any
Assumed Employees who are senior managers, directors or
project managers and any key employees who would be treated as
a "relevant employee" for the purposes of the Model Code
contained in the Listing Rules, whether or not such person
would commit any breach of his contract of employment or terms
of engagement by reason of his leaving the service of the
Buyer PROVIDED THAT this restriction will not apply to any
advertisement for recruitment made available generally through
any recruitment agency or advertisement available to the
public;
(d) use any trade or domain name (including the expression,
"PDMS") or e-mail address used by the Business at any time
during the two months immediately preceding the date of this
agreement or any other name intended or likely to be confused
with any such trade or domain name or e-mail address.
15.2 In consideration of the Buyer entering into this agreement, the Seller
undertakes to and with the Buyer that it shall not and shall procure
that no member of the Seller's Group shall:
(a) save as required by law or the rules of any governmental or
regulatory organisation, use or reveal to any person any of
the trade secrets, secret or confidential operations,
processes or dealings or any other confidential information
relating primarily and directly to the Business including
(without limitation) customer lists and names, sales targets
and statistics, market share statistics, surveys and reports
and pricing information relating to sales and purchases in
respect of the Business until such time
- 28 -
as the same falls into the public domain otherwise than by
reason of a breach of this undertaking; or
(b) attempt or knowingly assist or procure any other person to do
any of the foregoing things.
15.3 The provisions of clause 15.1 shall not prevent or restrict any member
of the Seller's Group from acquiring the whole or any part of a
business which, or the share capital of a company or group of companies
whose business or a part of whose business, includes operations the
carrying on of which would otherwise amount to a breach of the
undertaking contained in clause 15.1 (the "COMPETITIVE OPERATIONS"), as
part of a larger acquisition or series of related acquisitions PROVIDED
THAT the relevant member of the Seller's Group shall within the
following twelve months use their best endeavours to sell the
Competitive Operations as soon as is reasonably practicable following
such acquisition (which shall, without limitation, include inviting the
Buyer to make a competitive bid for the sale of the Competitive
Operations) save that the relevant member of the Seller's Group shall
not be obliged to sell the Competitive Operations if those Competitive
Operations comprise a minor part of the business or business of such
company, group of companies or businesses acquired or in which the
Seller's Group has acquired an interest. For the purpose of this clause
15.3(b), "MINOR PART" of the business of such company, group of
companies or business shall be part of its overall business in which
the turnover of the Competitive Operations does not exceed the lower of
ten per cent of the gross turnover per annum or L5 million gross
turnover per annum of the Company, group of companies or business
acquired.
15.4 The restrictions contained in this clause 15 are considered reasonable
by the parties hereto and the Seller acknowledges that, in the light of
the total price paid under this agreement and the manner of computation
thereof, the nature of the Business and all other relevant matters, the
provisions of this clause 15 are considered reasonably necessary for
the protection of the interests of the Buyer.
15.5 In the event that any restriction in this clause 15 shall be found to
be unenforceable but would be enforceable if some part thereof were
deleted or the area of operation or the period of application reduced,
such restriction shall apply with such modification as may be necessary
to make it legal and enforceable.
15.6 Each undertaking contained in this clause 15 shall be construed as a
separate undertaking and if one or more of the undertakings contained
in this clause 15 is held to be against the public interest or unlawful
or in any way an unreasonable restraint of trade the remaining
undertakings shall continue to bind any member of the Seller's Group.
16. ANNOUNCEMENTS, ETC.
16.1 Neither party shall disclose the making of this agreement nor its
content (except those matters set out in the press release in the
Agreed Form) and each party shall procure that each of its Related
Persons and its professional advisers shall not make any such
disclosure without the prior consent of the other party unless
disclosure is to its professional advisers or required by law or the
rules or standards of the London Stock Exchange or the Listing Rules of
the UK Listing Authority or the rules and requirements of any other
regulatory body Provided that this clause 15.1 does not apply to
announcements, communications or circulars made or sent
- 29 -
by the Buyer after Completion to customers, clients or suppliers of the
Business to the extent that it informs them of the Buyer's acquisition
of the Assets and the Business or to any announcements containing only
information which has become generally available.
16.2 The restrictions contained in clause 16.1 shall apply without limit of
time and whether or not this agreement is terminated.
17. ASSIGNMENT
This agreement is personal to the parties and accordingly no party
without the prior written consent of the other shall assign, transfer
or declare a trust of the benefit of all or any of any other party's
obligations nor any benefit arising under this agreement.
18. COSTS
Unless expressly otherwise provided in this agreement, each of the
parties shall bear its own legal, accountancy and other costs, charges
and expenses connected with the sale and purchase of the Business and
Assets.
19. ENTIRE AGREEMENT
19.1 Each party, on behalf of itself and as agent for each of its Related
Persons, acknowledges and agrees with the other party (each such party
acting on behalf of itself and as agent for each of its Related
Persons) that:
(a) this agreement together with any other documents referred to
in this agreement (together the "TRANSACTION DOCUMENTS")
constitutes the entire and only agreement between the parties
and their respective Related Persons relating to the subject
matter of the Transaction Documents;
(b) neither it nor any of its Related Persons has been induced to
enter into any Transaction Document in reliance upon, nor has
any such party been given, any warranty, representation,
statement, assurance, covenant, agreement, undertaking,
indemnity or commitment of any nature whatsoever other than as
are expressly set out in the Transaction Documents and, to the
extent that any of them has been, it (acting on behalf of
itself and as agent on behalf of each of its Related Persons)
unconditionally and irrevocably waives any claims, rights or
remedies which any of them might otherwise have had in
relation thereto;
(c) the only remedies available to it in respect of the
Transaction Documents (and, where appropriate, to its Related
Persons) are damages for breach of contract and, for breach of
clause 15.1 only, the ability to seek specific injunctive
relief and, for the avoidance of doubt, (neither it nor its
Related Persons, where appropriate) have any right to rescind
or terminate any Transaction Documents either for breach of
contract or for negligent or innocent misrepresentation or
otherwise;
PROVIDED THAT the provisions of this clause 19 shall not exclude any
liability which any of the parties or, where appropriate, their Related
Persons would otherwise have to any other party or, where appropriate,
to any other party's Related Persons or any right which any of
- 30 -
them may have in respect of any statements made fraudulently by any of
them prior to the execution of this agreement or any rights which any
of them may have in respect of fraudulent concealment by any of them.
20. WAIVER, AMENDMENT
20.1 A waiver of any term, provision or condition of, or consent granted
under, this agreement shall be effective only if given in writing and
signed by the waiving or consenting party and then only in the instance
and for the purpose for which it is given.
20.2 No failure or delay on the part of any party in exercising any right,
power or privilege under this agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right,
power or privilege preclude any other or further exercise thereof or
the exercise of any other right, power or privilege.
20.3 No breach of any provision of this agreement shall be waived or
discharged except with the express written consent of the Seller and
the Buyer.
20.4 The rights and remedies herein provided are cumulative with and not
exclusive of any rights or remedies provided by law.
20.5 No variation to this agreement shall be effective unless made in
writing and signed by all the parties.
21. FURTHER ASSURANCE & ASSIGNMENT OF LEASES
21.1 At any time after Completion, the Seller shall at the Seller's expense
execute all such documents and do such acts and things as the Buyer may
reasonably require for the purpose of vesting in the Buyer all of the
Seller's Group's rights and/or interests in the Business and of the
vesting in the Buyer the full legal and beneficial title to the Assets
(including Intellectual Property used by the Business, but which as
regards the Properties means the title now held by the Seller or to
which it is entitled on the basis of the copy documents of title
furnished) and giving to the Buyer the full benefit of this agreement,
including (without prejudice to the generality of the foregoing) to
answer to the best of the Sellers knowledge any queries raised by the
Land Registry on the registration of the transfer(s) to the Buyers now
held by the Seller. For the avoidance of doubt, there shall be no
obligation on the Seller to pay stamp duty, stamp duty land tax or
registration fees (including registration fees at the Land Registry of
Northern Ireland or the Registry of Deeds, Belfast pursuant to this
clause 21.1.
21.2 In this clause 21.2:
"the Heron Lease" means the Lease referred to in paragraph (b) of the
definition of "Leases", the Lessor's interest in which is now vested in
Maired Xxxxx, Xxxxxxxx X.X. Xxxxx, Xxxx X. Xxxxx, Xxxxxxxx X. Xxxxx,
Xxxxxxxx A, Heron and Xxxxxxx Xxxxxx Xxxxx or their successors ("the
Herons") and the lessee's interest in which is now vested in the
Seller.
"the Heron Assignment" means the deed of assignment in the Agreed Form
attached hereto.
"the Heron Premises" means the premises comprised in the Heron Lease.
- 31 -
21.3 It is acknowledged by the Buyer and the Seller that:
(a) Pursuant to clause 2(15) of the Heron Lease, the consent of
the Herons and/or their successors in title is required to
assign the Heron Premises and the benefit of the Heron Lease.
(b) The Heron Premises form part of the Properties and on
Completion, the Seller at the request of the Buyer is to
assign the Heron Premises to the Buyer.
(c) By virtue of an assignment dated 31 March 2002, the Heron
Premises were assigned to the Seller with Xxxxx Holdings as
guarantor for the Seller guaranteeing the payment of the rent
reserved by the Heron Lease and the observance and performance
of the covenants and conditions contained in the Heron Lease
by the Seller ("the Guarantee").
(d) If the Heron Assignment shall not have been executed by the
Seller and the Herons and delivered to the Buyer at or prior
to Completion, then the following provisions shall apply:
(i) The Seller shall permit the Buyer access to the Heron
Premises as licensee for the period from Completion
until the date that the Heron Assignment is delivered
to the Buyer duly executed by the Seller and the
Herons subject to the Buyer observing and performing
all the covenants in the Heron Lease (including the
obligation to pay rent) and indemnifying the Seller
and Xxxxx Holdings against any claim brought by the
Herons and/or their successors in title under the
Heron Lease by reason of any breach of the covenants
and/or conditions of the Heron Lease but the Buyer
shall not by reason of such Licence or such indemnity
be liable for any alleged breach of clause 2(15) of
the Heron Lease by reason of this Licence which shall
at all times during the subsistence of the licence be
the responsibility and liability of the Seller.
(ii) During the licence contained in clause 21.3(d)(i)
above the Seller shall at its cost continue to
endeavour to procure the Herons' consent to the
assignment of the Heron Lease and that the Herons
join as a party to the Heron Assignment for the
purpose of evidencing their consent to the assignment
and for the purposes of releasing the Guarantee. For
the avoidance of doubt, this obligation shall include
seeking a declaration or order of specific
performance from a court of competent jurisdiction in
the event of any persistent refusal on the part of
Herons to do either.
(iii) To procure the consent of Herons to the assignment of
the Heron Lease from the Seller to the Buyer and the
release of the Guarantee, the Buyer shall (if
necessary and if required) offer such guarantor or
guarantors as the Herons may reasonably require and
furnish such documentation and information, both
financial and otherwise, as the Herons may also
reasonably require in that regard.
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21.4 At any time after Completion the Buyer shall procure that it shall use
all reasonable endeavours to promptly provide the Seller or their
advisers with all information (including but not limited to providing
access to meet with employees of the Business) relating to the
operation of the Business prior to Completion which the Seller or any
member of the Seller's Group may reasonably require pursuant to any
request for information or similar obligation imposed by any legal or
regulatory body to or on the Seller or any member of the Seller's
Group. In the event of any information being supplied pursuant to this
clause 21.4 the Seller shall meet any reasonable direct costs incurred
by the Buyer.
21.5 In addition to clause 21.4 above the Buyer will provide the Seller with
reasonable access to the Business quality assurance and quality
compliance records, information and employees of the Business in
existence at and relating to the period prior to Completion for a
period of seven years from Completion to the extent reasonably required
by any member of the Seller's Group in order to comply with applicable
law and regulation from time to time. In the event of any information
being supplied pursuant to this clause 21.5 the Seller shall meet any
reasonable direct costs incurred by the Buyer.
21.6 The terms of this agreement shall insofar as they are not performed at
Completion and subject as specifically otherwise provided in this
agreement continue in force after and notwithstanding Completion.
21.7 At any time after Completion, the Buyer may request that the Xxxxx
Marketing Authorisations be transferred to the Buyer and Xxxxx shall
consent to the transfer of the Xxxxx Marketing Authorisations to the
Buyer and shall complete any documentation and/or perform any act
reasonably requested by the Buyer which is necessary to effect the
transfer of the Xxxxx Marketing Authorisations.
21.8 The Seller will:
(a) Use all reasonable endeavours to procure that any Xxxxx
Marketing Authorisations which require renewal in the period
between the Completion Date and the date that they are
transferred pursuant to clause 21.7 above, are renewed; and
(b) Procure that no acts are performed or amendments or omissions
made which may affect either directly or indirectly the
validity of the Marketing Authorisations, and the Seller shall
hold harmless and indemnify and keep indemnified the Buyer
against all losses, claims, expenses and damage (including
legal and other professional fees and expenses reasonably and
properly incurred) that result from the Seller being in breach
of the provisions of this clause 21.8(b).
22. NOTICES
22.1 Any notice, demand or other communication given or made under or in
connection with the matters contemplated by this agreement shall be in
writing and shall be delivered personally or sent by fax or prepaid
first-class post (air mail if posted to or from a place outside the
United Kingdom):
In the case of the Buyer:
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Pharmaceutical Development and Manufacturing Services Limited
Xxxxx Xxxxx
00 Xxxxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxx
Xxxxxxxx Xxxxxxx
Fax: 00000 000000
Attention: Xx. Xxxxx X. XxXxxx
In the case of the Seller to:
Xxxxx Limited
Seagoe Industrial Estate
Xxxxxxxxx
Xx. Xxxxxx
Xxxxxxxx Xxxxxxx
XX00 0XX
Fax: 00000 000000
Attention: Company Secretary
and shall be deemed to have been duly given or made as follows:
(a) if personally delivered, upon delivery at the address of the
relevant party;
(b) if sent by first class post, two business days after the date
of posting;
(c) if sent by air mail, five business days after the date of
posting; and
(d) if sent by fax, on receipt by sender of delivery confirmation
report;
provided that if, in accordance with the above provisions, any such
notice, demand or other communication would otherwise be deemed to be
given or made after 5.00 p.m. on a business day such notice, demand or
other communication shall be deemed to be given or made at 9.00 a.m. on
the next business day.
22.2 Either party may notify the other party to this agreement of a change
to its name, relevant addressee, address or fax number for the purposes
of clause 22.1 provided that such notification shall only be effective
on:
(a) the date specified in the notification as the date on which
the change is to take place; or
(b) if no date is specified or the date specified is less than
five days after the date on which notice is given, the date
falling five days after notice of any such change has been
given.
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23. COUNTERPARTS
This agreement may be executed in any number of counterparts which
together shall constitute one agreement. Either party may enter into
this agreement by executing a counterpart and this agreement shall not
take effect until it has been executed by both parties.
24. GOVERNING LAW AND JURISDICTION
24.1 This agreement (and any dispute, controversy, proceedings or claim of
whatever nature arising out of or in any way relating to this agreement
or its formation) shall be governed by and construed in accordance with
Northern Irish law.
24.2 Each of the parties to this agreement irrevocably agrees that the
courts of Northern Ireland shall have exclusive jurisdiction to hear
and decide any suit, action or proceedings, and/or to settle any
disputes, which may arise out of or in connection with this agreement
(respectively, "PROCEEDINGS" and "DISPUTES") and, for these purposes,
each party irrevocably submits to the jurisdiction of the courts of
Northern Ireland.
24.3 Each party irrevocably waives any objection which it might at any time
have to the courts of Northern Ireland being nominated as the forum to
hear and decide any Proceedings and to settle any Disputes and agrees
not to claim that the courts of Northern Ireland are not a convenient
or appropriate forum for any such Proceedings or Disputes and further
irrevocably agrees that a judgment in any Proceedings or Disputes
brought in any court referred to in this clause 24 shall be conclusive
and binding upon the parties and may be enforced in the courts of any
other jurisdiction.
24.4 Without prejudice to any other permitted mode of service the parties
agree that service of any claim form, notice or other document
("DOCUMENTS") for the purpose of any Proceedings begun in Northern
Ireland shall be duly served upon it if delivered personally or sent by
registered post, in the case of:
(a) the Seller to its registered office (marked for the attention
of the Company Secretary); and
(b) the Buyer to its registered office (marked for the attention
of Xx. Xxxxx X. XxXxxx).
or such other person and address in the United Kingdom as the Seller
shall notify the Buyer in writing or vice versa from time to time.
25. INVALIDITY
If any provision of this agreement is or becomes invalid, illegal or
unenforceable in any respect under the law of any jurisdiction:
(a) the validity, legality and enforceability under the law of
that jurisdiction of any other provision; and
(b) the validity, legality and enforceability under the law of any
other jurisdiction of that or any other provision
- 35 -
shall not be affected or impaired in any way.
26. THIRD PARTY RIGHTS
The Contracts (Rights of Third Parties Act) 1999 shall not apply to
this agreement and no person other than the parties to this agreement
shall have any rights under it, nor shall it be enforceable under that
Act by any person other than the parties to it.
IN WITNESS whereof this agreement has been executed on the date first above
written.
Signed by )
)
for and on behalf XXXXX LIMITED: )
Signed by )
)
for and on behalf of )
PHARMACEUTICAL )
DEVELOPMENT AND )
MANUFACTURING LIMITED: )
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