Dated 1998
STONEYRUN INC AND OTHERS (1)
CRAEGMOOR HEALTHCARE COMPANY LIMITED (2)
---------------------------
SHARE ACQUISITION AGREEMENT
relating to
SPECIALITY CARE LIMITED
---------------------------
XXXXXX XXXX & XXXXXXX
Xxxxxxxx Xxxxx
00 Xx Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
CONTENTS
CLAUSE OF AGREEMENT
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1. Definitions and interpretation
2. Sale of Shares and Consideration
3. Conditions
4. Warranties
5. Announcements and confidentiality
6. Completion
7. Covenants by certain Vendors
8. Costs
9. Warranties and undertakings by the Purchaser
10. Restrictive Trade Practices Xxx 0000
11. Indemnity
12. General
13. Notices
14. Applicable law and jurisdiction
SCHEDULES
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1. Particulars of the Vendors, the Shares and the Consideration, and the
Purchaser
2. Particulars of the Company and the Subsidiary Undertakings
3. Completion obligations
4. General warranties
5. Warranties relating to Taxation
6. Details of the Properties and Warranties relating to the Properties
7. Warranties relating to environmental matters
DOCUMENTS IN THE APPROVED TERMS
-------------------------------
1. Tax Deed
2. Letter(s) of resignation
3. Board minutes of the Group Companies
4. Resolutions of the shareholders of the Purchaser
5. Powers of attorney
6. Deed of Waiver
7. Information warranted pursuant to paragraph 1.1 of Schedule 4
8. Deed of Covenant
ANNEXURE
1. Accounts
THIS AGREEMENT is made on 1998
BETWEEN:
(1) STONEYRUN INC. AND OTHERS particulars of whom are set out in Part I of
Schedule 1 (together "the Vendors"); and
(2) CRAEGMOOR HEALTHCARE COMPANY LIMITED particulars of which are set out in
Part II of Schedule 1 ("the Purchaser").
WHEREBY IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 The following words and expressions where used in this Agreement have the
meanings given to them below.
Accounts the audited consolidated accounts of the
Group as at the Accounts Date and the
audited accounts of each Subsidiary
Undertaking as at the Accounts Date, true
copies of which comprise Annexure 1;
Accounts Date 30 June 1997;
Business Day a weekday, other than a Saturday, on
which clearing banks are ordinarily open
for business in the City of London;
Companies Act the Companies Xxx 0000;
Company Speciality Care Limited, details of which
are set out in Part I of Schedule 2;
Completion the performance of the obligations to
complete the sale and purchase of the
Shares in accordance with Schedule 3;
Completion Date the date on which Completion occurs;
Conditions the conditions set out in clause 3.1;
Consideration the consideration for the sale and
purchase of the Shares as stated in
clause 2.6;
Consideration Shares the B Convertible Shares of
(pound)1 each in the capital of the
Purchaser to be created on the passing of
the Resolution and to be allotted to the
Vendors pursuant to clause 2.6;
Copyright the copyright and design right in all the
works and designs (as defined in the
Copyright, Designs and Patents Act 1988)
in the possession or control of or used
by the Group;
Deed of Covenant the deed in the approved terms to be
entered into by Xx Xxxxxxx Xxxxxxxxx;
Deed of Waiver the deed in the approved terms
under which a holder of options under the
Company's Employee Share Option Scheme
adopted on 26 July 1995 irrevocably
waives his or her right to exercise such
options;
Disclosure Letter the letter of the same date as
this Agreement (including its annexures)
from the Vendors' Solicitors to the
Purchaser containing the disclosures to
the Warranties;
Due Proportion in respect of each Vendor, the
proportion set out against that Vendor's
name in column (5) of Part I of Schedule
1;
EEC Treaty the Treaty establishing the European
Economic Community;
Group the Company and the Subsidiary
Undertakings and "Group Company" means
any of such companies;
ICTA 1988 the Income and Corporation Taxes Xxx
0000;
Intellectual Property patents, trade marks, registered
designs, applications for any of the
foregoing, copyright, design rights and
analogous rights, trade and business
names, rights in confidential information
howsoever arising and any right or
interest in any of the foregoing;
Know-How inventions, discoveries, improvements,
processes, techniques, designs,
specifications, drawings, technical
information, methods, manuals,
instructions, catalogues and information
relating to customers and suppliers,
insofar as any of the foregoing relates
to the business of the Group and whether
or not it is written or unwritten;
London Stock The London Stock Exchange Limited;
Exchange
Management Accounts the management accounts for the
Group as at and for the period from 30
June 1997 to 8 February 1998 in the form
initialled by or on behalf of the parties
hereto;
Ordinary Shares the 1,818,182 Ordinary Shares of 10p each
in the capital of the Company;
Pension Scheme Speciality Care (EMI) plc Pension
and Life Assurance Scheme and the pension
schemes relating to Lindeth College
referred to in the Disclosure Letter;
Preference Shares the (pound)7,500,000 cumulative
redeemable convertible preference shares
of (pound)1 each in the capital of the
Company;
Properties the properties, details of which are set
out in Part I of Schedule 6;
Purchaser Group the Purchaser and the subsidiary
undertakings of the Purchaser;
Purchaser Group Accounts has the meaning ascribed to it in clause
9.1.1;
Purchaser's Property Solicitors Xxxxx Xxxxxx & Partners of "Hillcairnie",
Xx Xxxxxx'x Xxxx, Xxxxxxxxx,
Xxxxxxxxxxxxxx XX0 0XX;
Purchaser's Solicitors Xxxxxx Xxxx & Xxxxxxx of Beaufort House,
00 Xx Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX;
Purchaser's Warranties the warranties set out in clause 9.1;
Relevant Claim a claim for breach of a Warranty, a claim
pursuant to the Tax Deed or a claim
pursuant to clause 11;
Resolution the written resolutions in the approved
terms to be passed by the shareholders of
the Purchaser;
6
Shares the Ordinary Shares and Preference Shares
of the Company to be acquired by the
Purchaser in accordance with this
Agreement;
Subsidiary Undertakings the subsidiary undertakings of the
Company, details of which are set out in
Part II of Schedule 2;
Tamaris Tamaris Plc;
Tamaris Claim has the meaning given to it in the letter
of even date herewith from the
Purchasers' Solicitors to the Vendors'
Solicitors;
Tax Deed the deed in the approved terms relating
to taxation to be executed at Completion;
Vendors' Property Solicitors Xxxxx Xxxxx of 0 Xxxxxxxx Xxxxx,
Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxx
XX00 0XX;
Vendors' Solicitors Gouldens of 00 Xxxxx Xxxxxx, Xxxxxx XX0X
0XX;
Warranties the warranties and undertakings set out
in clause 4 and Schedules 4, 5, 6 and 7.
1.2 Where used in this Agreement the terms "subsidiary", "subsidiary
undertaking", "holding company", "financial year", "director" and "shadow
director" shall have the meanings respectively attributed to them by the
Companies Act at the date of this Agreement; the term "recognised
investment exchange" shall have the meaning attributed to it by Part V of
the Financial Services Xxx 0000 at the date of this Agreement; the term
"connected person" shall have the meaning attributed to it by section 839
ICTA 1988 at the date of this Agreement and the words "connected with"
shall be construed accordingly; the term "taxation" shall have the meaning
attributed to "Taxation" in the Tax Deed; and the
expression "for taxation purposes" shall have the meaning attributed to it
in the Tax Deed.
1.3 A reference to any statutory provision in this Agreement:
1.3.1 includes any order, instrument, plan, regulation, permission and
direction made or issued under such statutory provision or deriving
validity from it; and
1.3.2 shall be construed as a reference to such statutory provision as in
force at the date of this Agreement (including, for the avoidance of
doubt, any amendments made to such statutory provision that are in
force at the date of this Agreement); and
1.3.3 shall also be construed as a reference to any statutory provision in
force at the date of this Agreement of which such statutory
provision is a re-enactment or consolidation.
1.4 The headings in this Agreement are for convenience only and shall not
affect its meaning.
1.5 References to a clause, Schedule or paragraph are (unless otherwise
stated) to a clause of and Schedule to this Agreement and to a paragraph
of the relevant Schedule.
1.6 A document expressed to be "in the approved terms" means a document, the
terms, conditions and form of which have been agreed by the parties to
this Agreement and a copy of which has been identified as such and
initialled by or on behalf of each of the parties.
1.7 A document expressed to be an "Annexure" means a document a copy of which
has been identified as such and initialled by or on behalf of each of the
parties.
1.8 Words importing one gender shall (where appropriate) include any other
gender and words importing the singular shall (where appropriate) include
the plural and vice versa.
2. SALE OF SHARES AND CONSIDERATION
2.1 Each of the Vendors shall, with full title guarantee, sell or procure to
be sold and the Purchaser shall purchase the Shares set opposite his name
in Columns (2) and (3) of Part 1 of Schedule I upon and subject to the
terms and conditions of this Agreement.
2.2 Each Vendor warrants and undertakes to the Purchaser that the Shares set
opposite his name in Columns (2) and (3) of Part 1 of Schedule I are
registered in his name in the Company's register of members, are and will
at Completion be, owned by him beneficially and legally and are, and will
at Completion be, free from all liens, charges and encumbrances or
interests in favour of or claims made by any other person.
2.3 The Purchaser shall not be obliged or entitled to complete the purchase of
any of the Shares unless the purchase of all of the Shares is completed
simultaneously.
2.4 Each of the Vendors shall procure that the Purchaser acquires good title
to the Shares respectively sold by him free from all liens, charges,
encumbrances, equities and claims whatsoever and together with all rights
now or hereafter attaching to them.
2.5 Each of the Vendors hereby waives and undertakes to procure that any other
person having such rights shall waive any pre-emption rights that he or
such other person may have relating to the Shares whether conferred by the
articles of association of the Company or otherwise.
2.6 The consideration for the sale of the Shares specified against each
Vendor's name in Columns (2) and (3) of Part 1 of Schedule I shall be:-
2.6.1 the allotment to such Vendor of the number of the Consideration
Shares set against that Vendor's name in Column (4) of Part 1 of
Schedule 1; and
2.6.2 the payment to such Vendor (or as such Vendor may direct) of the
cash consideration set against that Vendor's name in Column (6) of
Part I of Schedule 1.
2.7 The Consideration Shares shall be allotted credited as fully paid and
shall rank pari passu in all respects with the shares of the same class in
the Purchaser.
3. CONDITIONS
3.1 Completion is conditional upon:
3.1.1 the passing of the Resolution by all the shareholders of the
Purchaser;
3.1.2 the execution by Xx Xxxxxxxxx of the Deed of Covenant;
3.1.3 the execution of a Deed of Waiver by each person who holds an option
under the Company's Employee Share Option Scheme adopted on 26 July
1995; and
3.1.4 receipt by Speciality Care (REIT Homes) Limited of not less than the
sum of (pound)258,616, being rent deposits to be released to it by
Principal Healthcare Finance Limited relating to Weald Hall Nursing
Home and Catchpole Court.
4. WARRANTIES
4.1 The Vendors, upon the execution of this Agreement, severally warrant to
the Purchaser in the terms of the Warranties.
4.2 The Warranties are given subject only to matters fairly disclosed in the
Disclosure Letter, but no other information of which the Purchaser has
knowledge (actual or constructive) shall prejudice any claim made by the
Purchaser under the Warranties or operate to reduce any amount
recoverable.
The Purchaser confirms that, at the time of execution of this Agreement,
neither Mr Xxxx XxXxxxxxxx nor Xx Xxxxxxx Xxxxxxxxx is actually aware of
any circumstances which he also appreciates at such time will constitute a
breach of a Warranty or give rise to a claim under the Tax Deed.
4.3 The Vendors agree that, if there is a breach of any of the Warranties,
then, without prejudice to the right of the Purchaser to claim damages on
any other basis, the Vendors shall pay to the Purchaser together in each
case with all costs and expenses reasonably incurred or sustained by the
Purchaser and/or the relevant Group Company as a result of the breach or of
the fact, matter, event or circumstance resulting in the breach a sum equal
to the aggregate of each liability and excess liability of each Group
Company which has been or will be incurred and which would not have been
incurred had matters been as warranted at the date the Warranties were
given. Notwithstanding clause 12.10, and without prejudice to any other
evidence that may be produced, in calculating the amount of the Vendors'
liability for any breach of the Warranties, regard shall be had to
correspondence between the parties (including correspondence between the
Purchaser and Xx Xxxxxxx Xxxxxxxxx and/or Xx Xxxxx Xxxxxxx) concerning the
manner in which the Consideration has been calculated.
4.4 The Warranties shall continue in full force and effect notwithstanding
Completion.
4.5 Where any statement in the Warranties is qualified by the expression "to
the best of the knowledge, information and belief of the Vendors" or "so
far as the Vendors are aware" or any similar expression, each Vendor shall
be deemed to have knowledge of:
4.5.1 anything of which the other Vendors have actual knowledge;
4.5.2 anything of which he ought reasonably to have knowledge given his
particular position in and responsibilities to the Company; and
4.5.3 anything of which he would have had knowledge had he made due and
careful enquiry of Xx Xxxxxxx Xxxxxxxxx or Xx Xxxxx Xxxxxxx
immediately before giving the Warranties.
4.6 Each of the Warranties shall be separate and independent and, save as
expressly provided, shall not be limited by reference to any other
Warranty or any other provision in this Agreement.
4.7 Each Warranty which is expressed to be given in relation to the Company
shall also be deemed to be given in relation to each of the Subsidiary
Undertakings as if it had been repeated with respect to each Subsidiary
Undertaking naming it in place of the Company throughout. The Warranties in
paragraph 4 of Schedule 4 shall, in addition, apply to the Group as if they
had been expressly repeated with respect to the Group naming it in place of
the Company throughout.
4.8 The liability of each Vendor for any breach of the Warranties or pursuant
to this clause and/or the terms of the Tax Deed shall be limited to that
Vendor's Due Proportion of the total liability concerned.
4.9 The Vendors undertake not to exercise any right of counterclaim or set-off
or any other claim or right of recovery against any Group Company or any
of its officers, employees, auditors or advisers in relation to any claim
which may be made in respect of the Warranties or under the Tax Deed.
4.10 Save in the event of fraud or wilful non-disclosure on the part of any of
them, the Vendors shall be under no liability:
4.10.1 for breach of any of the Warranties in Schedule 4 (other than those
in paragraphs 4.2.4 and 4.2.5) or Schedule 6 unless written notice
of the claim has been given to the Vendors by or on behalf of the
Purchaser on or before 30 June 2000; or
4.10.2 for breach of any of the Warranties in Schedule 5 or in paragraphs
4.2.4 and 4.2.5 of Schedule 4 or in respect of any claim under the
Tax Deed
unless written notice of the claim has been given to the Vendors by
or on behalf of the Purchaser on or before 26 February 2004
and any claim in respect of which such written notice is given shall
(unless previously agreed or withdrawn) be deemed to have been irrevocably
and unconditionally withdrawn if no proceedings shall have been issued and
served upon the Vendors in respect of such claim within 12 months of the
later of (a) delivery of such written notice and (b) all consultations and
actions taken or required to be taken by the Purchaser pursuant to clause
4.15 of this Agreement or clauses 7.3 or 8 of the Tax Deed (as
appropriate) having been completed or terminated.
4.11 The Vendors shall not be liable in respect of any claim for breach of
the Warranties or pursuant to the terms of the Tax Deed unless the
aggregate amount payable in respect of the claim together with all
amounts payable in respect of other claims (each such amount being an
amount in excess of (pound)20,000, in accordance with clause 4.13)
exceeds (pound)75,000 but once such aggregate amount has been exceeded
the Vendors shall be liable for the whole of such aggregate amount and
not just the excess.
4.12 Without in any way derogating from the provisions of clause 4.19
should all the Consideration Shares allotted to such Vendor hereunder
("its Consideration Shares") be converted into Deferred Shares
pursuant to the articles of association of the Purchaser, the
aggregate liability of each Vendor for Relevant Claims shall not
exceed whichever is applicable of the following, viewed as of the date
on which the Relevant Claim concerned is due to be satisfied:-
4.12.1 prior to a Sale or Listing, that Vendor's Due Proportion of
(pound)20,000,000;
4.12.2 on or after a Sale or Listing, the Realised and Realisable Sale
Proceeds of its Consideration Shares, subject to a maximum
aggregate liability of that Vendor's Due Proportion of
(pound)20,000,000.
"Realised Sale Proceeds" for this purpose means the total proceeds
of sale of the Consideration Shares concerned received by the Vendor
concerned on a sale of such Consideration Shares to a bona fide
third party purchaser on an arm's length basis. "Realisable Sale
Proceeds" for this purpose means the price at which the Vendor
concerned is or was (as the case may be) able to sell the
Consideration Shares concerned to a bona fide third party purchaser
on an arm's length basis (and irrespective of whether or not such
shares are or were actually so sold), at the earliest permissible
time without infringing any contractual or other legal restriction
on or after a Sale or Listing, as evidenced by a written offer to
such Vendor from such an offeror with the necessary financial
resources to satisfy the relevant payment obligations in full or (as
appropriate) by an opportunity offered by the sponsor to the Listing
for the Consideration Shares to be sold or placed as part of the
Listing process.
Where a Vendor's Consideration Shares are sold to a bona fide third
party purchaser on an arm's length basis and the proceeds of sale of
such Consideration Shares comprise listed shares, the Realised
and/or Realisable Sale Proceeds of such Consideration Shares shall
be determined by reference only to a sale or (as appropriate) an
ability to sell the listed shares so acquired. Accordingly, in such
a case, references in the definitions above of "Realised Sale
Proceeds" and "Realisable Sale Proceeds" to the Consideration Shares
shall be construed as references to the listed shares acquired on
the sale of the Consideration Shares concerned.
In this clause 4.12, "Sale" means the unconditional completion of the sale
of at least ninety per cent of the issued Ordinary Share capital of the
Purchaser to a single purchaser or to one or more purchasers as part of a
single transaction, and "Listing" has the meaning given to it in the
articles of association of the Purchaser in force at the date hereof.
If some only of the Vendor's Consideration Shares are sold, or able to be
sold, or referred to in clause 4.12.2, then clause 4.12.2 shall operate on
a pro-rata basis (so that if, for example, half of such Consideration
Shares are sold as referred to in Clause 4.12.2, that Vendor's aggregate
liability for Relevant Claims would consist at such time of a sum equal to
the aggregate of (i) 50 per cent. of that Vendor's Due Proportion of
(pound)20,000,000 and (ii) the total proceeds of sale of the Consideration
Shares concerned).
4.13 The Vendors shall not be liable in respect of any breach of the Warranties
or pursuant to the terms of the Tax Deed unless the amount payable in
respect of the liability of the Vendors in respect of that individual
breach or claim exceeds (pound)20,000.
4.14 The Vendors shall not be liable for any Relevant Claim to the extent that
the loss concerned has been recovered by the Purchaser pursuant to another
Relevant Claim.
4.15 The Purchaser shall, as soon as practicable and in any event within 25
Business Days after the same comes to its notice, inform the Vendors in
writing of any fact, matter, event or circumstance ("claim against the
Group") which comes to its notice whereby it appears that the Vendors are
or may become liable in respect of a breach of any of the Warranties and
shall in relation thereto:-
4.15.1 consult with the Vendors as to the way in which the claim against
the Group might be avoided, resolved, minimised or compromised and
afford to the Vendors a reasonable opportunity to propose to the
Purchaser a method of resolving or compromising the same; and
4.15.2 at the written request of the Vendors and on being indemnified to
the reasonable satisfaction of the Purchaser in respect of all
losses, claims, demands, costs and expenses which may thereby be
incurred (including legal costs) take or procure that the Company
or the Subsidiary Undertaking concerned shall take such action (and
not take any action inconsistent therewith) as the Vendors may
reasonably require to avoid, dispute, resist, compromise or defend
the said claim against the Group.
4.16 No liability shall attach to the Vendors in respect of a breach of any of
the Warranties to the extent that:
4.16.1 a specific provision or specific reserve in respect of such breach
has been made in the Accounts or in the Management Accounts;
4.16.2 such claim arises as a consequence of a change in the law
(including a published Inland Revenue statement of practice or
extra-statutory concession, not being a statement of practice or
extra-statutory concession announced, expected or in general
contemplation prior to Completion) enacted or effected after the
date of this Agreement;
4.16.3 such claim arises as a result of any specific provision or specific
reserve made in respect thereof in the Accounts or the Management
Accounts being insufficient by reason of any increase in rates of
taxation made after the date of this Agreement or as a result of
the retrospective imposition of taxation as a consequence of a
change in the law enacted after the date of this Agreement;
4.16.4 the breach or the events giving rise to such breach would not have
arisen but for a voluntary act, omission or transaction of the
Purchaser or any member of the Purchaser Group (including the
Company and Subsidiary Undertakings or any of them) effected after
Completion otherwise than in the ordinary course of business as
presently carried on;
4.16.5 the Purchaser or any relevant member of the Purchaser Group
(including the Company and Subsidiary Undertakings or any of them)
has previously received full indemnity against any loss or damage
suffered by it arising out of the breach under the terms of any
insurance policy of such company in force at the date hereof (or to
the extent that the Purchaser or relevant member of the Purchaser
Group could have recovered had it maintained such cover or at least
equivalent cover at the time of the claim concerned);
4.16.6 the matter giving rise to the same is attributable to or consequent
upon any change to the accounting policy or the financial year end
date of the Company or any Subsidiary Undertaking on or after
Completion;
4.16.7 the same arises or is increased by reason of the failure or
omission on the part of the Purchaser or any member of the
Purchaser Group (including the Company and any Subsidiary
Undertakings) after Completion to make any claim, action, surrender
or disclaimer or to give any notice or consent to do any other
thing the making or giving or doing of which was specifically taken
into account in computing the provisions or reserve for taxation in
the Accounts or Management Accounts;
4.16.8 the same arises or is increased by reason of the waiver or
surrender after Completion by the Purchaser or any member of the
Purchaser Group (including the Company and any Subsidiary
Undertakings) of any exemption, relief, allowance, credit,
deduction or set-off available to it which arose on or before the
Accounts Date and relevant to the computation of a liability to
taxation or any credit against taxation; or
4.16.9 the liability to which the breach gives rise is a contingent
liability unless or until such liability becomes actual.
4.17 No Vendor shall in relation to the sale hereunder of the Shares be liable
in respect of any representations or warranties or similar assurances which
are not contained and expressly given or assumed by it in this Agreement or
the Disclosure Letter.
4.18 In the event of the Vendors having paid to the Purchaser an amount in
respect of a claim for breach of any of the Warranties or a claim under the
Tax Deed and subsequent to the date of making such payment the Purchaser or
any other member of the Purchaser Group (including the Company and the
Subsidiary Undertakings or any of them) recovers from a third party a sum
which is referable to that payment then the Purchaser shall forthwith repay
or procure the repayment by such member to the Vendors (or those of them
making the
original payment) of so much of the amount paid by the third party as does
not exceed the sum paid by the Vendors to the Purchaser or other such
member. The Purchaser hereby undertakes to use and to procure that each
other such member uses all reasonable endeavours to enforce any right to
recover any such sum.
4.19 The Purchaser acknowledges and agrees that any Relevant Claim that is
agreed to or accepted by the Vendors or is otherwise determined shall be
regarded as settled (and the Vendors as having made a payment to the
Purchaser in respect of such claim for the purposes of this Agreement) to
the extent that the Consideration Shares are converted, in accordance with
the Articles of Association of the Purchaser (as amended following the
passing of the Resolution), into Deferred Shares. Any payment made by the
Vendors in respect of a Relevant Claim (whether in cash or by means of
conversion of Consideration Shares as referred to in this clause) shall be
regarded as a reduction in the price paid by the Purchaser for the Shares.
Conversion of all of the Consideration Shares allotted to a particular
Vendor as referred to in this clause shall extinguish all further liability
of that Vendor in respect of any Relevant Claim.
5. ANNOUNCEMENTS AND CONFIDENTIALITY
5.1 No announcement relating to the subject matter of this Agreement or any
matter ancillary to this Agreement shall be made by or on behalf of any of
the Vendors or the Purchaser without the prior written approval of the
other parties provided that nothing shall prevent any of the parties making
(even in the absence of the approval of the other parties) any announcement
or disclosure required by law or by any regulatory authority.
5.2 Each of the Vendors severally covenants and undertakes to keep confidential
and not at any time after the date of this Agreement to disclose or make
known in any way to anyone (other than the Purchaser) or use for its own or
any other person's benefit any Know-How or confidential information
relating to any of the customers, suppliers or affairs of the businesses
(including any prospective
businesses) of the Group or otherwise relating to the business of the
Group, provided that:-
5.2.1 this obligation shall not extend to any Know-How or confidential
information which shall have come into the public domain through no
default of any Vendor;
5.2.2 such covenant and undertaking shall not prevent any disclosure of
information required by law or regulation or competent governmental
authority;
5.2.3 disclosure or use by any Vendor who continues as a director or
employee of the Company in the ordinary and proper course of his
duties shall not constitute a breach of such covenant or
undertaking; and
5.2.4 Xxxx, Sells & Partners Limited may disclose to investors in funds
managed by it (in accordance with its previous practice) information
concerning the Group:-
(a) obtained prior to Completion; and/or
(b) obtained thereafter and relating to the rights and obligations
of Xxxx, Sells & Partners Limited and/or Nash, Sells, LP 1A
and/or Xxxx, Sells LP 1C under this Agreement the Tax Deed and
any other documents entered into pursuant hereto and/or as a
holder of shares in the Purchaser;
5.2.5 this obligation shall not prevent disclosure of any information by
any Vendor to another Vendor in connection with this Agreement or
the Tax Deed or any agreement entered into pursuant hereto in the
proper enjoyment by that Vendor of its rights under this Agreement
or any agreement aforesaid or performance of its obligations
thereunder.
5.3 All records, papers and documents in the possession, custody or control of
or kept or made by or on behalf of the Vendors relating exclusively to the
business or affairs of any Group Company or belonging to any Group Company
shall be deemed to be the property of that Group Company and all such
items shall be delivered to the Purchaser or as the Purchaser may direct
at Completion.
6. COMPLETION
6.1 Completion shall take place at the offices of the Purchaser's Solicitors
immediately after satisfaction of the Conditions. On such date the Vendors
and the Purchaser shall perform their respective obligations in relation
to the sale and purchase of the Shares in accordance with and as set out
in Schedule 3.
7. COVENANTS BY CERTAIN VENDORS
7.1 Each of Stoneyrun Inc and Eagleview III Associates LP covenants with the
Purchaser that it will not either on its own account or in conjunction
with or on behalf of any other person or persons, whether directly or
indirectly, for the period of:
7.1.1 two years from the Completion Date, solicit or entice away or
endeavour to solicit or entice away from the Purchaser Group or any
Group Company any person who was at the Completion Date, or who
during the period of six months prior to the Completion Date had
been, employed by any Group Company as a Home Manager or in any
other equivalent or more senior position, whether or not such person
would commit a breach of his or her contract of employment by reason
of leaving service;
7.1.2 two years from the Completion Date, employ or offer to employ,
whether as an employee, director, consultant or otherwise, any
person who was at the Completion Date, or who during the period of
six months prior to the Completion Date had been, employed by any
Group Company as a Home Manager or in any other equivalent or more
senior
position, whether or not such person would commit a breach of his or
her contract of employment by reason of leaving service; and
7.1.3 two years from the Completion Date, carry on or be engaged,
concerned or interested in any business in the United Kingdom which
competes with the business of any member of the Group as the same
was carried on at the Completion Date (other than as a holder of
securities listed or dealt in on a recognised investment exchange
provided that such holding shall not exceed five per cent of the
class of securities of which the said holding forms part).
7.2 Each of the undertakings contained in clause 7.1 is a separate undertaking
by each of Stoneyrun Inc and Eagleview III Associates LP in relation to
itself and its interests and shall be enforceable by the Purchaser
separately and independently of its right to enforce any one or more of the
other covenants contained in clause 7.1 and in the event that any such
undertaking shall be found to be void but would be valid if some part were
deleted or the period or area of application were reduced, then such
undertaking shall apply with such modification as may be necessary to make
it valid and effective.
8. COSTS
8.1 Each party shall pay its own costs and expenses incurred in the
negotiation, preparation and execution of this Agreement and the Vendors
represent and undertake that none of such costs and expenses have been nor
will prior to Completion be borne by any Group Company.
8.2 Each Vendor severally agrees to pay to the Purchaser forthwith on demand
that Vendor's Due Proportion of an amount equal to all professional costs
and expenses (including legal, accountancy, surveyor's and valuer's costs
and expenses) invoiced to or incurred by the Company or any other member of
the Group as a result of or in connection with (a) the negotiation,
preparation and execution of this Agreement and/or the agreements relating
to the acquisition by Parkcare Homes Limited of the freehold property at
Weald Hall, Weald Hall Lane, North Weald, Epping Forest, (b) the
negotiations prior to Completion
with Principal Healthcare Finance Limited for the sale of the share
capital of Irvine Care Limited and the Leasehold Properties described in
paragraphs 24-27 (inclusive) of Part I of Schedule 6 together with certain
assets pertaining to the businesses carried on there and (c) the
negotiations prior to Completion with Eton Hall Nursing Homes Limited for
the sale of the Leasehold Properties described in paragraphs 20, 21 and 22
of Part I of Schedule 6 together with certain assets pertaining to the
businesses carried on there. The Vendors shall have sole conduct of
negotiations leading to the agreement or settlement of any such costs and
expenses, subject always to the approval of the Purchaser (such approval
not to be unreasonably withheld or delayed).
9. WARRANTIES AND UNDERTAKINGS BY THE PURCHASER
9.1 The Purchaser warrants and undertakes to and with each of the Vendors that:
9.1.1 the audited consolidated accounts of the Purchaser Group as at and
for the period ended on 31 December 1996 ("the Purchaser Group
Accounts") give a true and fair view of the state of affairs of the
Purchaser Group at such date and of its profits for the year ended
on that date and were prepared in accordance with generally accepted
accounting principles consistently applied and comply with the
Companies Act;
9.1.2 since 31 December 1996 the businesses of the Purchaser and its
subsidiary undertakings have been carried on in the ordinary and
usual course, no material contracts or commitments of an onerous
nature have been entered into and there has been no significant
adverse change in the financial or trading position of the Purchaser
and its subsidiary undertakings taken as a whole;
9.1.3 neither the Purchaser nor any of its subsidiary undertakings is
engaged in any legal or arbitration proceedings which individually
or collectively may have, or have had during the immediately
preceding twelve months, a significant effect on the financial
position of the Purchaser and its subsidiary undertakings taken as a
whole and no such
proceedings are pending or (to the best of the information,
knowledge and belief of the Purchaser) are threatened, nor is the
Purchaser aware of any circumstances which are likely to give rise
to any such legal or arbitration proceedings;
9.1.4 no material outstanding indebtedness of the Purchaser or any of its
subsidiary undertakings has become payable before its due date for
repayment by reason of any event including any default by the
Purchaser or any of its subsidiary undertakings and there are no
circumstances known to the Purchaser which are likely to lead to
such occurrence and neither the Purchaser nor any of its subsidiary
undertakings is in material breach of the terms of any agreements
relating to any of its or their indebtedness;
9.1.5 no member of the Purchaser Group has taken any action nor have any
other steps been taken or legal proceedings started against the
Purchaser Group for its or their winding-up or dissolution or for it
or any of them to enter into any arrangement or composition for the
benefit of creditors, nor so far as the Purchaser is aware have any
steps been taken for the appointment of a receiver, administrator,
administrative receiver, trustee or similar officer of any of them
or any of their respective properties or other assets;
9.1.6 the copy of the Memorandum and Articles of Association of the
Purchaser delivered to the Vendors' Solicitors is a true and
complete copy of the Memorandum and Articles of Association of the
Purchaser and incorporates or contains a copy of every such
resolution or agreement as is referred to in section 380 of the
Companies Act;
9.1.7 with the exception of options to subscribe for a total of 110,250
Ordinary Shares of (pound)1 each in the capital of the Purchaser, as
at the date of this Agreement no person has the right (whether now
or later and whether absolutely or contingently) to call for the
issue of any share
in the capital of the Purchaser or of any security carrying rights
of conversion into any such share;
9.1.8 subject to the passing of the Resolution, the Purchaser has obtained
all necessary authorities, powers and consents and has taken all
necessary steps to enable it lawfully to issue the Consideration
Shares in accordance with the requirements of this Agreement;
9.1.9 the authorised share capital of the Purchaser at the date of this
Agreement is (pound)24,650,000 divided into 2,203,000 Ordinary
Shares of (pound)1 each and 224,470 Cumulative Redeemable Preferred
Shares of (pound)100 each;
9.1.10 the share capital of the Purchaser in issue at the date of this
Agreement is (pound)24,539,852, divided into 2,092,752 Ordinary
Shares of (pound)1 each and 224,471 Cumulative Redeemable Preferred
Shares of (pound)100 each, all of which are fully paid up.
9.2 Save in the event of fraud or wilful non-disclosure, the Purchaser shall be
under no liability for breach of any of the Purchaser's Warranties, unless
written notice of the claim has been given to the Purchaser by or on behalf
of the Vendors on or before 30 June 2000 and any claim in respect of which
such written notice is given shall (unless previously agreed or withdrawn)
be deemed to have been irrevocably and unconditionally withdrawn if no
proceedings shall have been issued and served upon the Purchaser in respect
of such claim within 12 months of delivery of such written notice.
9.3 The Purchaser shall not be liable in respect of any claim for breach of the
Purchaser's Warranties unless the aggregate amount payable in respect of
the claim together with all amounts payable in respect of other claims
exceeds (pound)75,000 but once such aggregate amount has been exceeded the
Purchaser shall be liable for the whole of such aggregate amount and not
just the excess.
9.4 The aggregate liability of the Purchaser for breach of the Purchaser's
Warranties shall not exceed (pound) 20,000,000.
9.5 The Purchaser shall not be liable in respect of any breach of the
Purchaser's Warranties unless the amount payable in respect of the
liability of the Purchaser in respect of that individual breach or claim
exceeds (pound)20,000.
9.6 The Vendors shall as soon as practicable and in any event within 25
Business Days inform the Purchaser in writing of any fact, matter, event or
circumstance ("claim against the Purchaser's Group") which comes to its
notice whereby it appears that the Purchaser is or may become liable in
respect of a breach of any of the Purchaser's Warranties and shall in
relation thereto consult with the Purchaser as to the way in which the
claim against the Purchaser's Group might be avoided, resolved, minimised
or compromised and afford to the Purchaser a reasonable opportunity to
propose to the Vendors a method of resolving or compromising the same.
9.7 No liability shall attach to the Purchaser in respect of a breach of any of
the Purchaser's Warranties to the extent that:
9.7.1 a specific provision or specific reserve in respect of such breach
has been made in the Purchaser Group Accounts;
9.7.2 such claim arises as a consequence of a change in the law enacted
after the date of this Agreement;
9.7.3 such claim arises as a result of any specific provision or specific
reserve made in respect thereof in the Purchaser Group Accounts
being insufficient by reason of any increase in rates of taxation
made after the date of this Agreement or as result of the
retrospective imposition of taxation as a consequence of a change in
the law enacted after the date of this Agreement; or
9.7.4 the Vendors or any or them have previously received full indemnity
against any loss or damage suffered by it or them arising out of the
breach under the terms of any insurance policy in force at the date
hereof (or to the extent that the Vendors or any of them could have
recovered had they or it maintained such cover or at least
equivalent cover at the time of the claim concerned).
9.8 The Purchaser agrees that, if there is a breach of any of the Purchaser's
Warranties then, without prejudice to the right of the Vendors to claim
damages on any other basis, the Purchaser shall pay to the Vendors
together in each case with all costs and expenses reasonably incurred or
sustained by the Vendors as a result of the breach or of the fact, matter,
event or circumstance resulting in the breach a sum equal to the aggregate
of each liability and excess liability of each Purchaser Group Company
(including the Company and Subsidiary Undertakings) which has been or will
be incurred and which would not have been incurred had matters been as
warranted in Clause 9.1 at the date such Purchaser's Warranties were
given. Notwithstanding clause 12.10, and without prejudice to any other
evidence that may be produced, in calculating the amount of the
Purchaser's liability for any breach of the Purchaser's Warranties, regard
shall be had to correspondence between the parties (including
correspondence between the Purchaser and Xx Xxxxxxx Xxxxxxxxx and/or Xx
Xxxxx Xxxxxxx) concerning the manner in which the Consideration has been
calculated.
9.9 The Purchaser's Warranties shall continue in full force and effect
notwithstanding Completion.
9.10 The Purchaser's Warranties shall be separate and independent and, save as
expressly provided, shall not be limited by reference to any other
warranty in Clause 9.1 or any other provision in this Agreement.
10. RESTRICTIVE TRADE PRACTICES ACT 1976
Where this Agreement is or forms part of an agreement which is subject to
registration under the Restrictive Trade Practices Act 1976 ("RTPA"), no
restriction accepted or information provision made under that agreement
shall come into effect until the day after particulars of the agreement
have been furnished to the Director General of Fair Trading under section
24 RTPA. If any party shall wish to furnish such particulars, the other
parties will at the
expense of the Purchaser render such co-operation and undertake such
action as may reasonably be required of them for such purpose so that
particulars may be furnished as soon as practicable following the
signature of this Agreement and each of the parties consents to the
disclosure of all information so furnished. In this clause the words and
terms "agreement" and "subject to registration" shall have the meanings
respectively given to them by the RTPA and the reference to "restrictions
accepted" or "information provisions made" under the agreement shall be to
restrictions accepted or information provisions made by virtue of which
the agreement is subject to registration.
11. INDEMNITY
11.1 Each Vendor hereby severally undertakes to pay to the Purchaser forthwith
on demand that Vendor's Due Proportion of an amount equal to all and any
liabilities, costs, charges and expenses suffered or incurred by the
Company or any other member of the Group or the Purchaser Group as a
result of or in connection with the Tamaris Claim (including any amounts
paid to Tamaris on settlement of the Tamaris Claim). For the avoidance of
any doubt, such costs and expenses include legal costs and expenses and
other costs and expenses referred to in the following provisions of this
clause 11, which costs and expenses shall be paid by each Vendor (as to
his Due Proportion of the same) as and when such costs and expenses fall
due for payment by the member of the Purchaser Group concerned.
11.2 Subject always to the Purchaser being satisfied that all steps to be taken
by the Vendors in connection with the Tamaris Claim are reasonable and
proper:
11.2.1 the Vendors shall have sole conduct of all negotiations with
Tamaris in respect of the Tamaris Claim; and
11.2.2 the Vendors shall have the sole right to resist, avoid, dispute,
appeal against, compromise or defend or agree or settle proceedings
served on the Company by Tamaris (and to enforce the Company's
rights if any
arising out of the Tamaris Claim) in the name of the Company but at
the sole expense of the Vendors.
11.3 The Vendors shall keep the Purchaser fully informed of all steps taken by
them or Tamaris in connection with the Tamaris Claim.
11.4 The Purchaser undertakes to give, or to procure that the Purchaser Group
following Completion gives, the Vendors all reasonable co-operation,
access and assistance, technical or otherwise, for the purpose of
resisting the Tamaris Claim, subject always to the Vendors meeting all
expenses incurred as a result of such co-operation.
12. GENERAL
12.1 Except where otherwise stated, any obligation imposed by or resulting from
the execution of this Agreement which is undertaken by two or more persons
shall constitute a several obligation of such persons.
12.2 This Agreement (including the Disclosure Letter, the documents in the
approved terms, the Annexure and the various letters relating to this
Agreement executed on the date of this Agreement) constitutes the entire
and only legally binding agreement between the parties relating to the
sale and purchase of the Shares and no variation of this Agreement shall
be effective unless made in writing signed by or on behalf of all the
parties and expressed to be such a variation.
12.3 Any remedy or right conferred by this Agreement on the Purchaser or the
Vendors for breach of this Agreement shall be in addition to and without
prejudice to any other right or remedy available to it or them.
12.4 No failure or delay by the Purchaser or the Vendors or time or indulgence
given by it or them in or before exercising any remedy or right under or
in relation to this Agreement shall operate as a waiver of the same nor
shall any single or partial exercise of any remedy or right preclude any
further exercise of the same or the exercise of any other remedy or right.
12.5 No waiver by any party of any requirement of this Agreement or of any
remedy or right under this Agreement shall have effect unless given by
notice in writing signed by such party. No waiver of any particular breach
of the provisions of this Agreement shall operate as a waiver of any
repetition of such breach.
12.6 Any release, waiver or compromise or any other arrangement which either
the Purchaser gives or enters into with any Vendor or which any one Vendor
gives or enters into with the Purchaser in connection with this Agreement
shall not either affect any right or remedy of the Purchaser as regards
any other Vendor's liabilities under or in relation to this Agreement or
affect any right or remedy of any other Vendor against the Purchaser under
or in relation to this Agreement.
12.7 This Agreement may be executed in two or more counterparts and execution
by each of the parties of any one of such counterparts will constitute due
execution of this Agreement.
12.8 Each Vendor shall and shall procure that any third party shall, do,
execute and perform all such further deeds, documents, assurances, acts
and things as may be necessary to transfer his Shares to the Purchaser.
12.9 The provisions of this Agreement shall remain in full force and effect
after Completion so far as they then remain to be observed and performed.
12.10 Each of the parties acknowledges that he is entering into this Agreement
without reliance on any warranty, representation, undertaking or statement
of fact or opinion made to him by or on behalf of any other party in
relation to the subject matter of this Agreement other than as expressly
contained in this Agreement and in the documents in the approved terms
provided that nothing herein shall exclude any party from liability for
fraudulent misrepresentation.
12.11 None of the parties hereto shall assign in whole or in part the benefit of
this Agreement or the Tax Deed.
13. NOTICES
13.1 Any notice shall be in writing and signed by or on behalf of the person
giving it and shall be irrevocable without the written consent of the
party on whom it is served.
13.2 Each Vendor hereby irrevocably authorises Xx X. Xxxxxxxxxx of Xxxxxxxx
House, 0 Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX and Xx Xxxxxxxx Xxxxxx of 0000
Xxxx 0xx Xxxxxx, PO Box 25330, Wilmington, Xxxxxxxx 00000, XXX acting
jointly (or such other representative(s) (not exceeding two persons in
total) as Vendors holding between them or allotted in the majority of the
Consideration Shares shall nominate in writing to the Purchaser) ("the
Vendors' Representatives") on its behalf to:-
13.2.1 give and receive any notice, document or other information under or
pursuant to this Agreement (provided always that a copy of any such
notice, document or other information given by the Purchaser is also
provided by the Purchaser to Xxxx, Sells & Partners Limited and
Tiverton Holdings Limited);
13.2.2 negotiate, compromise and agree any matters in connection with all
or any of the provisions of this Agreement, including any claim
under the Warranties or any matters arising under clause 11; and
13.2.3 execute and/or agree any other matter, document or thing, and take
any other action, as shall in the Vendors' Representatives'
discretion appear necessary or desirable for the purposes of, or in
connection with, this Agreement (including for the avoidance of
doubt any of the documents in the approved terms).
The Purchaser shall be entitled to assume that the Vendors'
Representatives have full authority, on behalf of each Vendor, for all the
purposes referred to in this clause.
13.3 Service of a notice must be effected by one of the following methods:
13.3.1 personally by giving it to any partner of a partnership that is a
party or to any director or the secretary of any company that is a
party;
13.3.2 by leaving it at or sending it by prepaid first class post (or by
airmail if from one country to another) to the address of such party
set out in Schedule 1 or to such other address in England as that
party shall have notified from time to time to all the other parties
for the purposes of this clause by notice given in accordance with
this clause for which purpose the last substituted address shall
supersede all persons substitutions.
13.4 Notices shall be deemed served as follows:
(a) in the case of personal service at the time of such service;
(b) in the case of leaving the notice at the relevant address, at the
time of so leaving it;
(c) in the case of service by post, on the second (or if by airmail the
fourth) Business Day following the day on which it was posted and in
proving such service it shall be sufficient to prove that the notice
was properly addressed, stamped and posted.
13.5 Each of the following Vendors, namely, Stoneyrun Inc, New Southwood
Associates Inc, Tiverton Holdings Limited, Lowton Holdings Limited, Sergus
Investments S.A. and Eagleview III Associates LP, irrevocably and
unconditionally nominates and instructs the Vendors' Solicitors (reference
ACG/PLN) to be its agent to receive and accept service of proceedings for
the purposes of this Agreement on its behalf, and acknowledges that
service upon the Vendors' Solicitors shall constitute good service for all
purposes and waives all rights to raise any defence in this respect.
14. APPLICABLE LAW
14.1 This Agreement shall be governed by and construed in accordance with the
laws of England.
14.2 The parties irrevocably submit to the exclusive jurisdiction of the Courts
of England and Wales in respect of any claim, dispute or difference
arising out of or in connection with this Agreement.
AS WITNESS this Agreement has been executed by or on behalf of the parties the
day and year first before written.
SCHEDULE 1
Part I
Particulars of the Vendors, the Shares and the Consideration
------------------------------------------------------------------------------------------------------------------------------------
(1) (2) (3) (4) (5) (6)
VENDORS ORDINARY PREFERENCE CONSIDERATION DUE CASH
SHARES SOLD SHARES SOLD SHARES PROPORTION CONSIDERATION
------------------------------------------------------------------------------------------------------------------------------------
Stoneyrun Inc
c/o Xxxxxx Xxxxxxxxxx
0000 Xxxx 0xx Xxxxxx
Xxxxx 00
Xxxxxxxxxx
Xxxxxxxx 00000 1,027,624 -- 28,149 11.5% (pound)29,511
USA
------------------------------------------------------------------------------------------------------------------------------------
New Southwood Associates Inc.
0000 Xxxx 0xx Xxxxxx
P O Box 25330
Xxxxxxxxxx
Xxxxxxxx 00000
XXX 387,187 4,773,846 129,732 53% (pound)136,006
------------------------------------------------------------------------------------------------------------------------------------
Xxxx, Sells & Partners Limited
00 Xxxxxxxxxx Xxxx
Xxxxxx XX0X 0XX 403 624 25 0.01% (pound)26
------------------------------------------------------------------------------------------------------------------------------------
Xxxx, Sells LPIA
00 Xxxxxxxxxx Xxxx 296,545 459,585 21,369 8.73%
Xxxxxx XX0X 0XX (pound)22,403
------------------------------------------------------------------------------------------------------------------------------------
31
------------------------------------------------------------------------------------------------------------------------------------
(1) (2) (3) (4) (5) (6)
VENDORS ORDINARY PREFERENCE CONSIDERATION DUE CASH
SHARES SOLD SHARES SOLD SHARES PROPORTION CONSIDERATION
------------------------------------------------------------------------------------------------------------------------------------
Xxxx, Sells LPIC
00 Xxxxxxxxxx Xxxx 25,675 39,791 1,860 0.76% (pound)1,950
Xxxxxx XX0X 0XX
------------------------------------------------------------------------------------------------------------------------------------
Tiverton Holdings Limited
P O Box 761
Ordnance House
00 Xxxx Xxxx
Xx Xxxxxx
Xxxxxx 27,624 2,127,113 57,033 23.3% (pound)59,792
Channel Islands
------------------------------------------------------------------------------------------------------------------------------------
Eagleview III Associates LP
c/o Wilsbach Distributors, Inc.,
X.X. Xxx 0000
Xxxxxxxxxx XX 00000 21,780 99,041 2,448 1% (pound)2,566
USA
------------------------------------------------------------------------------------------------------------------------------------
Lowton Holdings Limited
X.X. Xxx 000
0 Xx Xxxxxxxx Xxxxxx 10,448 - 490 0.2% (pound)513
Xx Xxxxx Xxxx
Xxxxxxxx
Xxxxxxx Xxxxxxx
------------------------------------------------------------------------------------------------------------------------------------
Sergus Investments X.X.
Xxxxx 50
Edif. Universal Xx. 000
Xxxxxxxx 0000
Xxxxxx 0
Xxxxxxxx xx Xxxxxx 20,896 - 3,672 1.5% (pound)3,849
------------------------------------------------------------------------------------------------------------------------------------
32
Part II
Particulars of the Purchaser
Craegmoor Healthcare Company Limited
(Registered in England with number 2825572)
"Hillcairnie"
Xx Xxxxxx'x Xxxx
Xxxxxxxxx
Xxxxxxxxxxxxxx
XX0 0XX
SCHEDULE 2
Part I
Particulars of the Company
NAME: Speciality Care Limited
REGISTERED IN ENGLAND UNDER NO: 2787609
REGISTERED OFFICE: Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx
XX0X 0XX
AUTHORISED CAPITAL: (pound)7,850,000 divided into 3,058,782
Ordinary Shares of 10p each, 7,500,000
Convertible Preference shares of (pound)1
each and 441,218 Deferred Shares of 10p
each
ISSUED AND FULLY PAID UP CAPITAL: (pound)7,725,940, divided into 1,818,182
Ordinary Shares of 10p each, 7,500,000
Convertible Preference Shares of (pound)1
each and 441,218 Deferred Shares of 10p
each
DIRECTORS: Xxxx Xxxxxx Xxxxxxxxxx, Xxxxxxxx Xxxx
Xxxxx, Xxxxxx Xxxxxx, Xxxx Xxxxxx Xxxxxxxx
Xxxx and Xxxxxxx Xxxxxx Xxxxxxxxx
SECRETARY: Xxxxx Xxxxxxxxx
ACCOUNTING REFERENCE DATE: 30 June
Part II
Particulars of the Subsidiary Undertakings
NAME: Speciality Care (EMI) plc
REGISTERED IN ENGLAND UNDER NO: 2192205
REGISTERED OFFICE: Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx
XX0X 0XX
AUTHORISED CAPITAL: (pound)610,000
DESCRIPTION: Ordinary Shares of 10p each
1,100,000 Convertible Preference Shares of
10p each
ISSUED AND FULLY PAID UP CAPITAL: (pound)236,128
DESCRIPTION: 1,294,610 Ordinary Shares of 10p each
1,066,670 Convertible Preference shares of
10p each
REGISTERED IN THE NAME OF: Speciality Care Limited
Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx,
Xxxxxx XX0X 0XX
BENEFICIALLY OWNED BY: Speciality Care Limited
DIRECTORS: Xxxxxxx Xxxxxx Xxxxxxxxx;
Xxxxxxx Xxxxx Xxxxxxxx;
SECRETARY: Xxxxx Xxxxxxxxx
ACCOUNTING REFERENCE DATE: 30 June
NAME: Speciality Care (Care Homes) Limited
REGISTERED IN ENGLAND UNDER NO: 3257732
REGISTERED OFFICE: Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx
XX0X 0XX
AUTHORISED CAPITAL: (pound)1000
DESCRIPTION: 1000 Ordinary Shares of (pound)1 each
ISSUED AND FULLY PAID UP CAPITAL: (pound)2
DESCRIPTION: 2 Ordinary Shares of (pound)1 each
REGISTERED IN THE NAME OF: Speciality Care Limited
Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx,
Xxxxxx XX0X 0XX
BENEFICIALLY OWNED BY: Speciality Care Limited
DIRECTORS: Xxxxxxx Xxxxx Xxxxxxxx
Xxxxxxx Xxxxxx Xxxxxxxxx
SECRETARY: Xxxxx Xxxxxxxxx
ACCOUNTING REFERENCE DATE: 30 June
NAME: Speciality Care (Rest Care) Limited
REGISTERED IN ENGLAND UNDER NO: 3257061
XX0X 0XX
REGISTERED OFFICE: Xxxxxxxx Xxxxx 0 Xxxxxx Xxxxxx,
Xxxxxx XX0X0XX
AUTHORISED CAPITAL: (pound)1,000
DESCRIPTION: 1,000 Ordinary Shares of (pound)1 each
ISSUED AND FULLY PAID UP CAPITAL: (pound)2
DESCRIPTION: 2 Ordinary Shares of (pound)1 each
REGISTERED IN THE NAME OF: Speciality Care Limited
Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx,
Xxxxxx XX0X 0XX
BENEFICIALLY OWNED BY: Speciality Care Limited
DIRECTORS: Xxxxxxx Xxxxx Xxxxxxxx
Xxxxxxx Xxxxxx Xxxxxxxxx
SECRETARY: Xxxxx Xxxxxxxxx
ACCOUNTING REFERENCE DATE: 30 June
NAME: Speciality Healthcare Limited
REGISTERED IN ENGLAND UNDER NO: 2904221
REGISTERED OFFICE: Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx
XX0X 0XX
AUTHORISED CAPITAL: (pound)1,000
DESCRIPTION: 1,000 Ordinary Shares of(pound)1 each
ISSUED AND FULLY PAID UP CAPITAL: (pound)2
DESCRIPTION: 2 Ordinary Shares of(pound)1 each
REGISTERED IN THE NAME OF: Speciality Care Limited
Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx
XX0X 0XX
BENEFICIALLY OWNED BY: Speciality Care Limited
DIRECTORS: Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx Xxxxxxxx
SECRETARY: Xxxxx Xxxxxxxxx
ACCOUNTING REFERENCE DATE: 30 June
NAME: Irvine Care Limited
REGISTERED IN ENGLAND UNDER NO: 2647877
REGISTERED OFFICE: Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx
XX0X 0XX
AUTHORISED CAPITAL: (pound)1,000
DESCRIPTION: 1,000 Ordinary Shares of(pound)1 each
ISSUED AND FULLY PAID UP CAPITAL: (pound)1,000
DESCRIPTION: 1,000 Ordinary Shares of(pound)1 each
REGISTERED IN THE NAME OF: Speciality Care Limited
Xxxxxxxx Xxxxx,
0 Xxxxxx Xxxxxx,
Xxxxxx XX0X 0XX
BENEFICIALLY OWNED BY: Speciality Care Limited
DIRECTORS: Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx Xxxxxxxx
Xxxxx Xxxxx
SECRETARY: Xxxxx Xxxxxxxxx
ACCOUNTING REFERENCE DATE: 30 June
NAME: Speciality Care (Learning Disabilities)
Limited
REGISTERED IN ENGLAND UNDER NO: 2953416
REGISTERED OFFICE: Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx
XX0X 0XX
AUTHORISED CAPITAL: (pound)1,000
DESCRIPTION: 2 Ordinary Shares of(pound)1 each
ISSUED AND FULLY PAID UP CAPITAL: (pound)2
DESCRIPTION: 1,000 Ordinary Shares of(pound)1 each
REGISTERED IN THE NAME OF: Speciality Care Limited
Xxxxxxxx Xxxxx,
0 Xxxxxx Xxxxxx,
Xxxxxx XX0X 0XX
BENEFICIALLY OWNED BY: Speciality Care Limited
DIRECTORS: Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx Xxxxxxxx
SECRETARY: Xxxxx Xxxxxxxxx
ACCOUNTING REFERENCE DATE: 30 June
NAME: Speciality Care (Cedar Grove) Limited
REGISTERED IN ENGLAND UNDER NO: 2965110
REGISTERED OFFICE: Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx
XX0X 0XX
AUTHORISED CAPITAL: (pound)1,000
DESCRIPTION: 1,000 Ordinary Shares of (pound)1 each
ISSUED AND FULLY PAID UP CAPITAL: (pound)2
DESCRIPTION: 2 Ordinary Shares of (pound)1 each
REGISTERED IN THE NAME OF: Speciality Care Limited
Xxxxxxxx Xxxxx,
0 Xxxxxx Xxxxxx,
Xxxxxx XX0X 0XX
BENEFICIALLY OWNED BY: Speciality Care Limited
DIRECTORS: Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx Xxxxxxxx
SECRETARY: Xxxxx Xxxxxxxxx
ACCOUNTING REFERENCE DATE: 30 June
NAME: Speciality Care (Rehab) Limited
REGISTERED IN ENGLAND UNDER NO: 2965073
REGISTERED OFFICE: Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx
XX0X 0XX
AUTHORISED CAPITAL: (pound)1,000
DESCRIPTION: 1,000 Ordinary Shares of(pound)1 each
ISSUED AND FULLY PAID UP CAPITAL: (pound)2
DESCRIPTION: 2 Ordinary Shares of(pound)1 each
REGISTERED IN THE NAME OF: Speciality Care Limited
Xxxxxxxx Xxxxx,
0 Xxxxxx Xxxxxx,
Xxxxxx XX0X 0XX
BENEFICIALLY OWNED BY: Speciality Care Limited
DIRECTORS: Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx Xxxxxxxx
SECRETARY: Xxxxx Xxxxxxxxx
ACCOUNTING REFERENCE DATE: 30 June
NAME: Speciality Equestrian Centre Limited
REGISTERED IN ENGLAND UNDER NO: 3156702
REGISTERED OFFICE: Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx
XX0X 0XX
AUTHORISED CAPITAL: (pound)1,000
DESCRIPTION: 1,000 Ordinary Shares of(pound)1 each
ISSUED AND FULLY PAID UP CAPITAL: (pound)2
DESCRIPTION: 2 Ordinary Shares of(pound)1 each
REGISTERED IN THE NAME OF: Speciality Care Limited
Xxxxxxxx Xxxxx,
0 Xxxxxx Xxxxxx,
Xxxxxx XX0X 0XX
BENEFICIALLY OWNED BY: Speciality Care Limited
DIRECTORS: Xxxxxxx Xxxxxx Xxxxxxxxx
SECRETARY: Xxxxx Xxxxxxxxx
ACCOUNTING REFERENCE DATE: 30 June
NAME: Speciality Care (Medicare) Limited
REGISTERED IN ENGLAND UNDER NO: 2970714
REGISTERED OFFICE: Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx
XX0X 0XX
AUTHORISED CAPITAL: (pound)1,000
DESCRIPTION: 1,000 Ordinary Shares of(pound)1 each
ISSUED AND FULLY PAID UP CAPITAL: (pound)2
DESCRIPTION: 2 Ordinary Shares of(pound)1 each
REGISTERED IN THE NAME OF: Speciality Care Limited
Xxxxxxxx Xxxxx,
0 Xxxxxx Xxxxxx,
Xxxxxx XX0X 0XX
BENEFICIALLY OWNED BY: Speciality Care Limited
DIRECTORS: Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx Xxxxxxxx
SECRETARY: Xxxxx Xxxxxxxxx
ACCOUNTING REFERENCE DATE: 30 June
NAME: Speciality Care (Addison Court) Limited
REGISTERED IN ENGLAND UNDER NO: 3011310
REGISTERED OFFICE: Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx
XX0X 0XX
AUTHORISED CAPITAL: (pound)1,000
DESCRIPTION: 1,000 Ordinary Shares of(pound)1 each
ISSUED AND FULLY PAID UP CAPITAL: (pound)2
DESCRIPTION: 2 Ordinary Shares of (pound)1 each
REGISTERED IN THE NAME OF: Speciality Care Limited
Xxxxxxxx Xxxxx,
0 Xxxxxx Xxxxxx,
Xxxxxx XX0X 0XX
BENEFICIALLY OWNED BY: Speciality Care Limited
DIRECTORS: Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx Xxxxxxxx
SECRETARY: Xxxxx Xxxxxxxxx
ACCOUNTING REFERENCE DATE: 30 June
NAME: Innova Health Care Limited
REGISTERED IN ENGLAND UNDER NO: 2806297
REGISTERED OFFICE: 0 Xxxxxx Xxxxxx, Xxxxxxxx Xxxxxxxxxx
Xxxxxx XX0X 0XX
AUTHORISED CAPITAL: (pound)1,000,000
DESCRIPTION: 1,000,000 Ordinary Shares of (pound)1 each
ISSUED AND FULLY PAID UP CAPITAL: (pound)60,000
DESCRIPTION: 60,000 Ordinary Shares of (pound)1 each
REGISTERED IN THE NAME OF: Speciality Care Limited
0 Xxxxxx Xxxxxx,
Xxxxxxxx Xxxxxxxxxx
Xxxxxx XX0X 0XX
BENEFICIALLY OWNED BY: Speciality Care Limited
DIRECTORS: Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx Xxxxxxxx
SECRETARY: Xxxxx Xxxxxxxxx
ACCOUNTING REFERENCE DATE: 30 June
NAME: Speciality Care (Reit Homes) Limited
REGISTERED IN ENGLAND UNDER NO: 3071279
REGISTERED OFFICE: Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx
XX0X 0XX
AUTHORISED CAPITAL: (pound)1,000
DESCRIPTION: 1,000 Ordinary Shares of (pound)1 each
ISSUED AND FULLY PAID UP CAPITAL: (pound)2
DESCRIPTION: 2 Ordinary Shares of (pound)1 each
REGISTERED IN THE NAME OF: Speciality Care Limited
0 Xxxxxx Xxxxxx,
Xxxxxx XX0X 0XX
BENEFICIALLY OWNED BY: Speciality Care Limited
DIRECTORS: Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxx Xxxxxxxxx
SECRETARY: Xxxxx Xxxxxxxxx
ACCOUNTING REFERENCE DATE: 30 June
NAME: Speciality Care (Rest Homes) Limited
REGISTERED IN ENGLAND UNDER NO: 3010116
REGISTERED OFFICE: Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx
XX0X 0XX
AUTHORISED CAPITAL: (pound)1,000
DESCRIPTION: 1,000 Ordinary Shares of(pound)1 each
ISSUED AND FULLY PAID UP CAPITAL: (pound)2
DESCRIPTION: 2 Ordinary Shares of (pound)1 each
REGISTERED IN THE NAME OF: Speciality Care Limited
0 Xxxxxx Xxxxxx,
Xxxxxxxx Xxxxxxxxxx
Xxxxxx XX0X 0XX
BENEFICIALLY OWNED BY: Speciality Care Limited
DIRECTORS: Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx Xxxxxxxx
SECRETARY: Xxxxx Xxxxxxxxx
ACCOUNTING REFERENCE DATE: 30 June
NAME: Speciality Care (UK Lease Homes) Limited
REGISTERED IN ENGLAND UNDER NO: 3071277
REGISTERED OFFICE: Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx
XX0X 0XX
AUTHORISED CAPITAL: (pound)1,000
DESCRIPTION: 1,000 Ordinary Shares of (pound)1 each
ISSUED AND FULLY PAID UP CAPITAL: (pound)2
DESCRIPTION: 2 Ordinary Shares of (pound)1 each
REGISTERED IN THE NAME OF: Speciality Care Limited
Xxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx,
Xxxxxx XX0X 0XX
BENEFICIALLY OWNED BY: Speciality Care Limited
DIRECTORS: Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx Xxxxxxxx
SECRETARY: Xxxxx Xxxxxxxxx
ACCOUNTING REFERENCE DATE: 30 June
NAME: Specialised Courses Offering Purposeful
Education Limited
REGISTERED IN ENGLAND UNDER NO: 2485984
REGISTERED OFFICE: Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx
XX0X 0XX
AUTHORISED CAPITAL: (pound)50,000
DESCRIPTION: 50,000 Ordinary Shares of (pound)1 each
ISSUED AND FULLY PAID UP CAPITAL: (pound)2,000
DESCRIPTION: 2,000 Ordinary Shares of (pound)1 each
REGISTERED IN THE NAME OF: Speciality Care (Medicare) Limited
Xxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx,
Xxxxxx XX0X 0XX
BENEFICIALLY OWNED BY: Speciality Care (Medicare) Limited
DIRECTORS: Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx Xxxxxxxx
Xxxxxxx Xxxxxxx Xxxxxxxxx
SECRETARY: Xxxxx Xxxxxxxxx
ACCOUNTING REFERENCE DATE: 30 June
SCHEDULE 3
Completion obligations
Part I
Obligations of the Vendors
1. The Vendors shall deliver to the Purchaser:
1.1 duly executed transfers of the Shares by the registered holders in favour
of the Purchaser or persons nominated by the Purchaser, the share
certificates and any additional documentation necessary to establish the
transferor's title to the Shares, to authorise the executions of such
transfers and to allow the transferees (subject to due stamping) to be
registered in the register of members of the Company as holders of the
Shares;
1.2 an engrossment of the Tax Deed executed by the Vendors;
1.3 the common seal, statutory books and other record books of each Group
Company written up to Completion;
1.4 the certificates in respect of all issued shares in the Subsidiary
Undertakings and duly executed transfers in respect of such shares not
registered in the name of the Company or a Subsidiary Undertaking in
favour of the Purchaser or a person nominated by the Purchaser,
1.5 letters of consent and confirmation in a form satisfactory to the
Purchaser from Principal Healthcare Limited and Nursing Home Properties
Limited relating to certain Leasehold Properties;
1.6 statements of balances at a date not more than seven days prior to
Completion with reconciliations to the Business Day preceding the
Completion Date on all bank accounts of each Group Company;
1.7 letters of consent and non-crystallisation in a form satisfactory to the
Purchaser from Bank of Scotland and Royal Bank of Scotland;
1.8 letters in a form satisfactory to the Purchaser from the providers of
professional services referred to in clause 8.2 confirming that they will
not seek recovery of their costs and expenses as referred to in clause 8.2
from any member of the Group;
1.9 resignation letters in the approved terms from all of the directors and
the Secretary of the Company and its Subsidiary Undertakings (other than
Xxxxx Xxxxx in respect of Irvine Care Limited);
1.10 evidence reasonably satisfactory to the Purchaser that:
1.10.1 all sums owed by the Company or the Subsidiary Undertakings
to any of the Vendors (other than (a) the (pound)125,000 loan
from Stoneyrun Inc. to the Company as set out in an agreement
dated 31 January 1997 and (b) the (pound)813,278 loan from
Tiverton Holdings Limited to the Company as set out in an
agreement dated 18 February 1998 or by any of the Vendors to
the Company or the Subsidiary Undertakings have been repaid;
1.10.2 any guarantees granted or security or indemnities given by
the Company or the Subsidiary Undertakings in respect of
obligations of the Vendors have been released or discharged;
1.11 Deeds of Waiver duly executed by all the persons referred to in clause
3.1.3;
1.12 powers of attorney in the approved terms in respect of the rights
attaching to the Shares;
1.13 the Deed of Covenant duly executed by Xx Xxxxxxxxx; and
1.14 waiver in a form satisfactory to the Purchaser of the covenant contained
in clause 8.1.3 of the Principal Healthcare Lease (as referred to in
paragraph 17.1.5 of the Disclosure Letter).
2. Each of the Vendors shall procure the holding of a meeting of the board of
directors of each Group Company, at which board resolutions in the
approved
terms shall be passed ,inter alia, to appoint Xx Xxxxxxx Xxxxxxxxx and Xx
Xxxxxx Blackoe as new directors and Mr Xxxxx Xxxxxx as the new Secretary
of the Company and its Subsidiary Undertakings.
Part II
Obligations of the Purchaser
The Purchaser shall, conditionally upon the implementation of the matters set
out in Part I of this Schedule:
1. deliver to the Vendors a copy of the Resolution duly executed by or on
behalf of all the shareholders of the Purchaser;
2. allot the Consideration Shares and deliver share certificates in respect
thereof to the Vendors;
3. pay to the Vendors the total cash consideration due to all the Vendors
referred to in clause 2.6.2; the Vendors hereby direct payment of such
cash consideration to be made to Principal Healthcare Finance Limited or
to Messrs Xxxxxxx & Xxxxxxx, Solicitors to Principal Healthcare Finance
Limited;
4. deliver to the Vendors an engrossment of the Tax Deed executed by the
Purchaser.
SCHEDULE 4
General warranties
Accuracy of information
1.1 All written information relating to the business, activities, affairs,
assets or liabilities of the Group as listed in the document entitled
"Information warranted pursuant to paragraph 1.1 of Schedule 4" in the
approved terms was when given and is now true and accurate in all material
respects.
1.2 There is no information relating to the Company which is known to the
Vendors which renders any of the information referred to in paragraph 1.1
above misleading.
1.3 The information contained in Part I of Schedule 1, Schedule 2 and Part I
of Schedule 6 is true and accurate in all respects and is not misleading.
Constitution of the Company
2.1 The statutory books and minute books of the Company have been properly
kept and contain an accurate and complete record of the matters which
should be dealt with in those books, and no notice or allegation that any
of them is incorrect or should be rectified has been received.
2.2 The copy of the memorandum and articles of association of the Company
annexed to the Disclosure Letter is true and complete and has embodied in
it or annexed to it a copy of every such resolution or agreement as is
referred to in section 380(1) Companies Act and sets out in full the
rights and restrictions attaching to each class of the share capital of
the Company.
2.3 No person has the right (whether exercisable now or in the future and
whether contingent or not) to call for the issue or transfer of any share
or loan capital of the Company under any option or other agreement or
otherwise howsoever.
2.4 The Company has properly and punctually made all returns which it is
required to make to the Registrar of Companies, to any other governmental
or regulatory body and to any local authority.
2.5 Due compliance has been made with all the provisions of the Companies Act
and other legal requirements, in connection with the formation of the
Company, the allotment, issue, purchase and redemption of shares,
debentures and other securities in the Company, the reduction of the
authorised and issued share capital of the Company, any amendment to the
memorandum or articles of association of the Company and the passing of
resolutions and the payment of dividends by the Company.
2.6 The Company has at all times conducted its business intra xxxxx, has not
entered into any transaction ultra xxxxx the Company or outside of the
authority or powers of the directors of the Company and is not in breach
of the provisions of the Articles.
Capacity and interests of Vendors
3.1 Each Vendor has the requisite power and authority to enter into and
perform this Agreement and each Vendor has the requisite power and
authority to enter into and perform the Tax Deed.
3.2 Each Vendor warrants that the execution and delivery of and the
performance by it of its respective obligations under this Agreement and
the Tax Deed will not:
3.2.1 result in a breach of, or constitute a default under, any agreement,
instrument or arrangement to which that Vendor or the Company is a
party or by which that Vendor or the Company is bound; or
3.2.2 result in a breach of any order, judgment or decree of any court or
governmental agency to which that Vendor or the Company is a party
or by which that Vendor or the Company is bound; or
3.2.3 result in a breach of the rules or requirements of any professional
body, trade association or self-regulating organisation (as defined
in the Financial Services Act 1986) of which that Vendor is a member
or by which that Vendor is bound.
3.3 Each Vendor warrants that no indebtedness (actual or contingent) is
outstanding and no contract or arrangement exists between the Company and
that Vendor or director of the Company or any person connected with that
Vendor or such director.
3.4 Each Vendor (other than Xxxx, Sells & Partners Limited, Xxxx, Sells LPIA
and Xxxx, Sells LPIC) warrants that neither it nor any person connected
with it has any interest, direct or indirect, in any business which
competes or has competed or is in the future likely to compete with any
business now carried on by the Company or intends to acquire any such
interest.
3.5 Each Vendor warrants that it is not entitled to any claim of any nature
against the Company, any of the Company's officers, employees, principal
customers or suppliers and that it has not assigned to any third party the
benefit of any such claim to which it was previously entitled.
Accounts and Management Accounts
4.1 The Accounts have been prepared in accordance with generally accepted
accounting practice in the United Kingdom, comply with the requirements of
the Companies Act and of all relevant statements of standard accounting
practice and with all pronouncements issued or adopted by the Accounting
Standards Board Limited and show a true and fair view of the state of
affairs and the financial position of the Company as at and for the
financial year ended on the Accounts Date and of the profits or losses of
the Company for the financial year ended on the Accounts Date.
4.2 Without prejudice to the generality of the foregoing, in the Accounts:
4.2.1 depreciation of the fixed assets of the Company has been made at a
rate sufficient to write down the value of such assets to nil not
later than the
end of their useful working lives and no fixed asset has attributed
to it a value exceeding its current market value at the Accounts
Date;
4.2.2 the value attributed to stock and work-in-progress does not exceed
the lower of cost and net realisable value at the Accounts Date;
4.2.3 to the extent required by the Companies Act and the applicable
statements of standard accounting practice and financial reporting
standards, proper provision or reserve (as appropriate) has been
made for all bad and doubtful debts, all liabilities and obligations
(actual, contingent or disputed) and all capital commitments;
4.2.4 to the extent required by the Companies Act and the applicable
statements of standard accounting practice and financial reporting
standards, proper provision or reserve (as appropriate) has been
made for all taxation liable to be assessed on the Company or for
which the Company is accountable (whether primarily or otherwise) in
respect of income, profits or gains earned, accrued or received on
or before the Accounts Date or deemed to have been or treated as
earned, accrued or received for taxation purposes and/or for any
event on or before the Accounts Date, including distributions made
down to the Accounts Date or provided for in the Accounts; and
4.2.5 to the extent required by the Companies Act and the applicable
statements of standard accounting practice and financial reporting
standards, proper provision or reserve (as appropriate) has been
made in the Accounts for all deferred taxation of the Company.
4.3 The bases and policies of accounting of the Company adopted for the
purpose of preparing the Accounts are the same as those adopted for the
purpose of preparing the audited accounts of the Company for the three
preceding accounting periods and none of the audited accounts of the
Company for the three preceding accounting periods were qualified by the
auditors.
4.4 The profits and losses of the Company shown by the Accounts and by the
audited accounts of the Company for the three preceding accounting periods
and the trend of profits and losses thereby shown have not (except as
therein disclosed) been affected to a material extent by, any
non-recurring, exceptional, extraordinary or short term item (including,
but not limited to, any pension contribution holiday or any rental or
other outgoing at below market rates) or by any other matter which has
rendered such profits or losses unusually high or low.
4.5 All books of account and other accounting records of the Company have been
kept on a consistent basis, are in its possession, made up to date and
contain the information required by law and generally accepted accounting
principles.
4.6 The Management Accounts accurately reflect in all material respects the
current trading, performance and liabilities of the Company as at and for
the period ended on the date to which they have been prepared.
Business since the Accounts Date
5.1 Since the Accounts Date:
5.1.1 the Company has carried on its business in the ordinary and usual
course without any interruption or alteration in the nature, scope
or manner of its business;
5.1.2 there has been no material adverse change in the financial or
trading position or prospects of the Company;
5.1.3 the Company has not acquired or agreed to acquire any asset for a
consideration which is higher than market value at the time of
acquisition and has not disposed of or agreed to dispose of any
asset for a consideration which is lower than market value or book
value, whichever is the higher, at the time of disposal;
5.1.4 the Company has not assumed or incurred any material liabilities
(including contingent liabilities) otherwise than in the ordinary
and usual course of business, and
5.1.5 no distribution of capital or income has been declared, made or paid
in respect of any share in the capital of the Company.
5.2 The Company has paid in full the following outgoings when due or within
any period normally allowed for payment of the same: all wages, salary and
emoluments due to be paid to employees of the Company, all lease rentals
and bank interest payments and capital repayments, and all gas, water and
electricity bills.
Borrowings and Bank Facilities
6.1 The Company has not exceeded the amount of its overdraft facility with its
bankers and is not in breach of the material terms of any other loan
facilities and the total amount borrowed by the Group from whatsoever
source does not exceed any limitation on its borrowings contained in the
Company's articles of association or in any debenture or loan stock deed
or any other instrument or agreement to which the Company is a party.
6.2 Full and accurate details of all overdrafts, loans or other financial
facilities outstanding or available to the Company are contained in the
Disclosure Letter and none of the Vendors or the Company has done or
omitted to do anything whereby the continuance of any such facilities in
full force and effect might be affected or prejudiced.
6.3 A statement of all the bank accounts of the Company and of the credit or
debit balances on such accounts as at a date not more than seven days
before the date of this Agreement is annexed to the Disclosure Letter.
Since such statement there have been no payments out of any such accounts
except for routine payments in the ordinary course of business and the
balances on current account are not now substantially different from the
balances shown on such statements.
Guarantees and indemnities
7. There is not outstanding any guarantee, indemnity or security given by or
for the benefit of the Company.
Debtors
8.1 Each debt now owed to the Company (less the amount of any specific
provision or reserve disclosed in the Disclosure Letter or made in the
Management Accounts and determined on the same basis as that applied in
the Accounts) will realise its full face value and be good and collectable
in the ordinary course of business and, so far as the Vendors are aware,
is not subject to any counterclaim or set-off, except to the extent of any
such provision or reserve and (except as clearly reflected in the
Management Accounts) no amount included in the Accounts as owing to the
Company at the Accounts Date has been realised for an amount less than the
value at which it was included in the Accounts or has been released (in
whole or in part) or is, so far as the Vendors are aware, irrecoverable in
whole or in part.
Customers and suppliers
9.1 No material customer or supplier of or to the Company has during the last
twelve months ceased or indicated to the Company an intention to cease (or
to reduce the volume of) trading with the Company nor, so far as the
Vendors are aware, is likely so to do whether as a result of this
Agreement or otherwise.
Ownership and condition of assets
10.1 Except for assets disposed of by the Company in the ordinary course of
trading, and except for the assets the subject of the Warranties comprised
in Schedule 6, the Company is the owner of and has good and marketable
title to all assets included in the Accounts and all assets which have
been acquired by the Company since the Accounts Date, all of which assets
are in the Company's possession and under its control and there is not now
outstanding any charge, option, lien, pledge or encumbrance (or agreement
to grant any such) over the
whole or any part of the undertaking, property or assets of the Company
nor any right to acquire such.
10.2 All plant and machinery (including fixed plant and machinery), vehicles
and office equipment used by the Company in connection with its business
are in good repair and condition having regard in each case to its age and
the use to which it is put, have been regularly maintained and are capable
of being efficiently and properly used in connection with the business of
the Company and none is dangerous, inefficient, obsolete or in need of
renewal or replacement.
10.3 The Company has not agreed to acquire any asset on terms that the property
in such asset does not pass to it until full payment is made.
Insurance
11.1 All the assets of the Company which are of an insurable nature have at all
times been and are at the date of this Agreement insured in amounts
reasonably regarded as adequate against fire and other risks normally
insured against by companies carrying on similar businesses or owning
property of a similar nature and the Company has at all times been and is
now adequately covered against accident, third party liability, injury,
damage and other risks normally covered by insurance by such companies. In
respect of all such insurances:
11.1.1 all premiums have been duly paid to date;
11.1.2 all the policies are in force and are not voidable; and
11.1.3 no claim is outstanding and, so far as the Vendors are aware, no
circumstances exist which may give rise to any claim.
Grants
12. The Company has not applied for any investment grant, employment subsidy
or other similar payment and no such grant, subsidy or payment paid or due
to be paid to the Company is liable to be refunded or withheld in whole or
in part in
consequence of any action or omission of the Company.
Compliance with laws
13. Neither the Company nor its officers or employees in the course of their
respective duties to the Company have done or omitted to do anything in
breach of the law of the United Kingdom. The Company does not conduct, and
has not conducted, any business in any country other than the United
Kingdom.
Licences and consents
14. Save in relation to the Properties (to which Schedule 6 relates), all
licences, consents, approvals, permissions, permits and authorities
(public and private) necessary for the carrying on of the business of the
Company effectively in the places and in the manner in which such business
is now carried on have been obtained and all such licences, consents,
approvals, permissions, permits and authorities are valid and subsisting
and, so far as the Vendors are aware, there is no reason why and no facts
or circumstances which would be likely to give rise to any reason why any
of them should be suspended, cancelled or revoked or not renewed.
Litigation
15.1 Except for the Tamaris Claim, the Company is not engaged in any litigation
or arbitration proceedings and no litigation or arbitration proceedings
are, so far as the Vendors are aware, pending or threatened by or against
the Company, nor, so far as the Vendors are aware, are there any facts or
circumstances which may give rise to any litigation or arbitration
proceedings being commenced by or against the Company.
15.2 Neither the Company nor any of its officers is being prosecuted for any
criminal offence and, so far as the Vendors are aware, there are no such
prosecutions pending or threatened and, so far as the Vendors are aware,
there are no facts or circumstances which may give rise to any such
prosecution.
15.3 The Company is not subject to any order or judgement given by any court,
governmental agency or other regulatory body and is not a party to any
undertaking or assurance given to any court, governmental agency or other
regulatory body which is still in force nor, so far as the Vendors are
aware, are there any facts or circumstances which may result in the
Company, becoming subject to any such order or judgement or being required
to be a party to any such undertaking or assurance.
15.4 There have been no investigations of or disciplinary proceedings made
against, the Company or any of its officers or employees, no such
investigations or disciplinary proceedings are currently pending or
threatened and, so far as the Vendors are aware, there are no facts or
circumstances which may give rise to such investigations or proceedings.
Competition law matters
16.1 The Company is not and has not been a party to any agreement (as defined
in the Restrictive Trade Practices Act 1976 ("the RTPA") which has been
furnished to the Director General of Fair Trading as provided for in the
RTPA or which is or was subject to registration pursuant to the RTPA and
which has not been so furnished.
16.2 To the best of the knowledge and belief of the Vendors, the Company has
not been and is not a party to any agreement or concerted practice which
infringes Article 85 of the EEC Treaty and is not in contravention of any
regulation or other enactment made under Article 87 of the EEC Treaty.
16.3 No action, practice or course of conduct now or previously done or carried
on by the Company and no agreement to which the Company is or was a party
or any part of any such agreement:
16.3.1 is or has been the subject of any investigation or reference under
the Competition Xxx 0000; or
16.3.2 is or was unlawful by virtue of the Resale Prices Xxx 0000; or
16.3.3 is or was an abuse of a dominant position under Article 86 of the
EEC Treaty.
16.4 None of the Vendors nor the Company has at any time received, nor have any
of the Vendors or the Company any grounds for believing that any of the
Vendors has received or that the Vendors or the Company may receive, any
process, notice, communication or any formal or informal request for
information with reference to any actual or proposed agreement,
arrangement, concerted practice, trading policy or practice, course of
conduct or activity of the Company from the Director General of Fair
Trading, the Monopolies and Mergers Commission, the Secretary of State for
Trade and Industry, the Commission of the European Communities, the
Restrictive Practices Court or from any other person or body (wherever
situated) whose task it is to investigate, report or decide upon matters
relating to monopolies, mergers or anti-competitive agreements or
practices nor has the Company or anything done or to be done or proposed
to be done by the Company been the subject of any report, decision, order,
judgement or injunction made, taken or obtained by any of such persons or
bodies, nor has the Company given or been the subject of any undertakings
or assurances given (directly or indirectly) to any such persons or
bodies.
16.5 The Company has not been party to any agreement, practice or arrangement
which, in whole or in part, contravenes the provisions of the Trade
Descriptions Acts 1968 to 1972 or the Consumer Credit Xxx 0000.
Trading and contractual arrangements
17.1 The Company is not a party to:
17.1.1 any partnership, joint venture, European Economic Interest Grouping
or consortium arrangement or agreement or any agreement for sharing
commissions or other income;
17.1.2 any agreement or arrangement which is liable to be terminated by
another party or under which rights of any person are liable to
arise or
be affected as a result of any change in the control, management or
shareholders of the Company;
17.1.3 any contract of a long-term nature that is to say, unlikely to have
been fully performed, in accordance with its terms, more than twelve
months after the date on which it was entered into;
17.1.4 any agreement or arrangement of a loss making nature (that is to
say, now known by the Company to be likely to result in a loss on
completion of performance);
17.1.5 any agreement containing covenants limiting or excluding its right
to do business and/or to compete in any area or in any field or with
any person, firm or company;
17.1.6 any agreement or arrangement of an unusual or abnormal nature or
entered into otherwise than on an arm's length basis in the ordinary
and usual course of the Company's business;
17.1.7 any agreement or arrangement which cannot readily be fulfilled or
performed by the Company in accordance with its terms without undue
or unusual expenditure or effort;
17.1.8 so far as the Vendors are aware, any agreement or arrangement
suffering from any invalidity or in respect of which there are
grounds for determination, rescission, avoidance or repudiation by
any other party; or
17.1.9 any agreement or arrangement which involves payment by reference to
fluctuations in the index of retail prices or any other index, or in
the rate of exchange for any currency.
17.2 No offer, tender or the like given or made by the Company on or before the
date of this Agreement and still outstanding is capable of giving rise to
a contract merely by a unilateral act of another person.
Title deeds
18. All documents which in any way affect the right, title or interest of the
Company in or to any of its property, undertakings or assets and all
agreements to which the Company is a party are in the possession of the
Company and are properly stamped.
Powers of attorney
19. The Company has not given a power of attorney and, so far as the Vendors
are aware, no person has any authority (express, implied or ostensible)
which is still outstanding or effective to enter into any contract or
commitment or to do anything on its behalf other than any authority to
employees to enter into routine trading contracts in the normal course of
their duties and to executive directors.
Insolvency
20.1 No receiver or administrative receiver has been appointed of the whole or
any part of the assets or undertaking of the Company.
20.2 No administration order has been made in relation to the Company and no
petition for such an order has been presented to court or to the Company.
20.3 No proposal for a voluntary arrangement between the Company and its
creditors (or any class of them) has been made to or is in the
contemplation of the Company.
20.4 No petition has been presented, no order has been made and no resolution
has been passed for the winding-up of the Company.
20.5 The Company has not stopped payment to its creditors nor is it insolvent
or unable to pay its debts as and when they fall due.
20.6 No unsatisfied judgement is outstanding against the Company. Officers and
employees
21.1 Those persons named as such in Schedule 2 are the only directors of the
Company and the secretary of the Company respectively and the particulars
set out in Schedule 2 are true and complete.
21.2 No person is or has been a shadow director of the Company.
21.3 The particulars provided to the Purchaser or any of its employees,
officers, agents or advisors shown in the schedule of employees annexed to
the Disclosure Letter list all the employees of the Company, are true and
accurate and show in relation to each employee and officer:
21.3.1 all cash remuneration payable (including accrued holiday pay);
21.3.2 details of all benefits receivable otherwise than in cash; and
21.3.3 details of any profit sharing, incentive and bonus arrangements in
which he participates (whether or not such arrangements are legally
binding on the Company).
21.4 No change in the remuneration, benefits and arrangements shown in the
schedule of employees is due or expected within six months from the date
of this Agreement and no request for any such change has been received.
21.5 There is not outstanding any contract of service between the Company and
any of its directors, officers or employees which is not terminable by the
Company without damages or compensation (other than any compensation
payable by statute) on one month's notice given at any time.
21.6 No employee of the Company has given notice terminating his contract of
employment or is under notice of dismissal and no amount due to or in
respect of any employee or former employee of the Company is in arrears
and unpaid other than his salary for the month current at the date of this
Agreement.
21.7 There is no dispute between the Company and any trade union or other
organisation formed for a similar purpose existing, pending or threatened
and
there is no collective bargaining agreement or other arrangement (whether
binding or not) to which the Company is a party.
21.8 The Company has at all relevant times complied with all its obligations
under statute and otherwise concerning the health and safety at work of
its employees and, so far as the Vendors are aware, there are no claims
capable of arising or threatened or pending by any employee or third party
in respect of any accident or injury which are not fully covered by
insurance.
Pensions
21.9 The Pension Scheme is the only retirement benefit scheme (as defined in
Section 611 of ICTA) in which the Company participates for the purpose of
providing relevant benefits (as defined in Section 612(1) of ICTA) to or
in respect of the directors, officers or employees of the Company. There
is no legal or moral obligations to pay any pension, gratuity,
superannuation allowance, death benefit, retirement gratuity or like
benefit or make any other payment after disability, retirement or death or
contribute to any life assurance, to which the Company maintains or
contributes or has agreed to contribute in respect of any director,
officer or employee employed in the United Kingdom by the Company.
21.10 The Pension Scheme is approved as an exempt approved scheme (within the
meaning of Chapter I of Part XIV of ICTA) and neither the Vendors nor the
Company are aware of any reason why the Inland Revenue might withdraw or
vary such approval.
21.11 True and complete copies of all documents establishing and comprising the
Pension Scheme have been disclosed including (without limitation) copies
of trust deeds and rules, booklets, announcements, actuarial statements
(if any), trustees' reports and accounts for each scheme year and full
particulars of the benefit entitlements under the Pension Scheme has been
delivered to the Purchaser as well as a list of the directors, officers
and employees of the Company who participate in the Pension Scheme and
there is no obligation to provide benefits under the Pension Scheme other
than is revealed in such
documents and particulars.
21.12 There are no claims against the trustees or administrators of the Pension
Scheme or the Company arising out of or in connection with the Company's
participation in the Pensions Scheme save for the routine payment of
benefits.
21.13 The Company has paid to the trustees of the Pension Scheme all
contributions due and payable by it at in respect of the members under the
Pension Scheme at the full rate required.
21.14 All benefits payable under the Pension Scheme are fully insured with
insurers of good repute. The liability to pay lump sum benefits on death
are insured at normal rates on the assumption that all the lives enjoy
good health.
21.15 The Pension Scheme provides only money purchase benefits as defined in
Section 181(1) of the Xxxxxxx Xxxxxxx Xxx 0000.
Intellectual Property Rights
22.1 The Company does not own any material Intellectual Property and is the
sole and absolute beneficial and legal owner of the Copyright free and
clear from any liens, charges, restrictions and encumbrances.
22.2 No licence, permission or other right has been granted to the Company by
any third party in respect of any Intellectual Property, including for the
avoidance of doubt any Intellectual Property in computer software.
22.3 Other than as referred to in paragraph 22.4, no rights in Intellectual
Property are necessary to enable the business of the Company fully and
effectively to be carried on as it has been carried on up to the date of
this Agreement.
22.4 The Company owns absolutely such copyrights, design rights and analogous
rights as are necessary or desirable to enable the business of the Company
fully and effectively to be carried on as it has been carried on up to the
date of this Agreement.
22.5 The Know-How is confidential and has not been disclosed to any person in
whole or in part (other than to employees of the Company in circumstances
where the confidentiality of the Know How has been drawn to their
attention and steps taken to preserve such confidentiality) and, so far as
the Vendors are aware, there is no claim that can be or has been made by
any person alleging that the Know-How has been disclosed to the Company in
circumstances amounting to a breach of confidence.
22.6 The Company has not granted and is not obliged to grant any licences of,
nor are there any subsisting agreements under which the Company has
granted to any person, any right or interest under or in connection with
any Intellectual Property, the Copyright or the Know-How.
22.7 So far as the Vendors are aware, none of the Copyright or the Know-How is
the subject of any claim, opposition, assertion, infringement, attack,
right, action or other restriction or arrangement of whatsoever nature
which does or may impinge upon the validity, enforceability or ownership
of the same by the Company or the use of the same (or any part of the
same) howsoever by the Company and there are no grounds facts or
circumstances that may give rise to such.
22.8 So far as the Vendors are aware, none of the processes, products or
activities of the business of the Company infringes any right of any other
person relating to Intellectual Property or involves the unlicensed use of
information confidential to any person or gives rise to a liability for
any royalty or similar payment.
22.9 The Company does not trade under any name other than its full corporate
name.
The Subsidiary Undertakings
23. The particulars of the Subsidiary Undertakings set out in Part II of
Schedule 2 are true and complete and the shares of the Subsidiary
Undertakings are held and owned as shown in that Schedule free from all
liens, charges and
encumbrances and with all rights now or hereafter attaching to them and
the Company has no other subsidiary undertakings and does not hold or own
other shares in any other companies and has never held or owned or agreed
to acquire any such shares.
SCHEDULE 5
Warranties relating to Taxation
1. General
1.1 There has not been any transaction, arrangement, event or omission
occurring after the Accounts Date:
1.1.1 which has caused or will cause any expenditure (including any
payment of taxation) but excluding any entertainment expenses
incurred in the ordinary course of business incurred or deemed to
have been incurred for taxation purposes by the Company not to
qualify for all or part of any relief, allowance, credit or
deduction for taxation purposes; or
1.1.2 which has given rise or will give rise: (a) to income or gains being
deemed to arise to, or supplies being deemed to be made by, the
Company for taxation purposes, or (b) to any taxation otherwise
being assessable or chargeable on the Company when the relevant
income or gains do not in fact accrue to or the relevant supplies
are not in fact made by, the Company; or
1.1.3 the taxation treatment of which is or is likely to become the
subject of any dispute with any taxation authority.
1.2 No charge to taxation will arise on the Company merely as a result of
entering into or Completion of this Agreement.
1.3 Since the Accounts Date, the Company has not carried out or been engaged
in any transaction or arrangement such that the law provides that there
may be substituted for the amount or value or the actual consideration
given or received (or to be given or received) by the Company any
different amount or value for taxation purposes.
1.4 No clearances have been obtained by or relating to the Company pursuant to
any statutory provision or statement of practice relating to taxation, or
any press release issued by any taxation authority.
2. Compliance
2.1 The Company has made all returns it is required by law to make. All
returns, claims for reliefs, applications and computations have been
properly and punctually submitted by the Company to all relevant taxation
authorities (whether of the United Kingdom or elsewhere) and such returns,
claims, applications and computations are complete, true and accurate,
give full disclosure of all material facts and circumstances and are not
the subject of any question or dispute nor are likely to become the
subject of any question or dispute with any taxation authority.
2.2 There is set out in the Disclosure Letter full details of all matters
relating to taxation in respect of which the Company (whether alone or
jointly with any other person) has or at Completion will have an
outstanding entitlement or obligation:
2.2.1 to make any claim (including a supplementary claim) for relief from
taxation;
2.2.2 to make any election for one type of relief, or one basis, system or
method of taxation as opposed to another;
2.2.3 to make any appeal (including a further appeal) against an
assessment to taxation;
2.2.4 to make any application for the postponement of payment of taxation;
or
2.2.5 to submit any return or provide particulars or information to any
taxation authority.
2.3 All payments by the Company to any person which ought to have been made
under deduction of taxation have been so made and the Company has (if
required by law to do so) accounted to the relevant taxation authority for
the taxation so deducted.
2.4 The Company is not liable as agent or lessee for any taxation liability of
another person.
2.5 No taxation authority has agreed to operate any special arrangement (being
an arrangement which is not based on a strict and detailed application of
the relevant legislation, generally published statements of practice or
generally published extra statutory concessions) in relation to the
Company's affairs.
2.6 The Company has complied with all notices served on it by any taxation
authority and no such notice remains outstanding.
2.7 The Company has duly and punctually paid all taxation which it has become
liable to pay and it has not within the last six years paid or become
liable to pay any penalty, fine or surcharge in connection with taxation.
2.8 All income tax under the P.A.Y.E. system and payments due in respect of
employees' contributions to National Insurance have been duly paid by the
Group to the Inland Revenue in the appropriate manner and the Group has
complied with all its reporting obligations in connection with the
benefits provided for its employees and directors.
3. Distributions
3.1 The Company has not since the Accounts Date made or agreed to make any
distributions within the meaning of section 209 ICTA, 1988 (meaning of
"distribution").
3.2 The Company has not been concerned in any exempt distribution within
sections 213 to 218 ICTA 1988 (demergers) within the period of five years
preceding Completion.
3.3 The Company has not issued any security (as defined in section 254(1) ICTA
1988) which will be outstanding at Completion in circumstances such that
any
interest or other payment payable in respect of it constitutes a
distribution under section 209 ICTA 1988 (meaning of "distribution").
3.4 The Company has not made any repayment of share capital to which section
210(1) ICTA 1988 (bonus issue following repayment of share capital) might
apply.
3.5 The Company has not issued any share capital or securities as paid up
other than by receipt of new consideration within the meaning of section
254 ICTA 1988.
4. Capital Allowances
4.1 The aggregate book value of each of the assets of the Company, on which an
entitlement to industrial building allowances or other allowances in
respect of capital expenditure has arisen under the Capital Xxxxxxxxxx Xxx
0000 or the Capital Xxxxxxxxxx Xxx 0000, in or adopted for the purposes of
the Accounts does not exceed the aggregate residue of expenditure or
written down value attributable to such assets for the purposes of those
Acts and the aggregate book value of plant and machinery allocated to a
pool of plant and machinery on which an entitlement to capital allowances
has arisen under Part II Capital Allowances Act 1990 (machinery and plant)
does not exceed the written down value of the qualifying expenditure in
respect of each such pool under that Act.
4.2 All expenditure incurred by the Company or which it may incur under any
subsisting commitment for the provision of machinery or plant has
qualified or will qualify (if not deductible as a trading expense of a
trade carried on by the Company) for writing down allowances under Part II
Capital Allowances Act 1990 (machinery and plant).
4.3 Since the Accounts Date nothing has happened as a result of which: there
may be made against the Company a balancing charge under the Capital
Xxxxxxxxxx Xxx 0000 or under the Capital Xxxxxxxxxx Xxx 0000; or any
disposal value may be brought into account under section 24 Capital
Allowances Act 1990 (writing down allowances and balancing adjustments);
or there may be any recovery of
excess relief within sections 46 or 00 Xxxxxxx Xxxxxxxxxx Xxx 0000
(recovery of excess relief); or a relevant event may occur within the
meaning of section 000 Xxxxxxx Xxxxxxxxxx Xxx 0000 (scientific research).
4.4 There is not, and there are no circumstances which could give rise to, any
dispute between the Company and any other person as to the entitlement to
capital allowances under sections 51 to 00 Xxxxxxx Xxxxxxxxxx Xxx 0000
(fixtures).
4.5 The Company has not made any election under section 37 Capital Allowances
Act 1990 (short life assets) nor has been taken to have made an election
under sub-section (8)(c) of that section.
5. Capital Gains
5.1 The book value in or adopted for the purposes of the Accounts as the value
of each of the assets of the Company on the disposal of which a chargeable
gain or allowable loss could arise does not exceed the amount deductible
under section 38 Taxation of Chargeable Gains Xxx 0000 (acquisition and
disposal costs etc.) in respect of each such asset.
5.2 No debt owed to the Company would on its disposal give rise to a
chargeable gain by reason of section 251 Taxation of Chargeable Gains Xxx
0000 (debts - general provisions).
5.3 The Company does not have any interest in any qualifying corporate bond to
which section 116 Taxation of Chargeable Gains Xxx 0000 (reorganisations,
conversions and reconstructions) applies.
5.4 No benefit under any policy of assurance or contract for a deferred
annuity has been acquired by the Company which would on its disposal give
rise to a chargeable gain by reason of section 210 Taxation of Chargeable
Gains Xxx 0000 (life assurance and deferred annuities).
5.5 The Company does not have an interest in any assets which are wasting
assets within the meaning of section 44 Taxation of Chargeable Gains Xxx
0000 (meaning of "wasting asset") and which do not qualify for capital
allowances.
5.6 The Company has not made nor is it entitled to make any claim or election
under either of section 24 Taxation of Chargeable Gains Xxx 0000
(disposals where assets lost or destroyed, or become of negligible value)
or section 161(3) Taxation of Chargeable Gains Xxx 0000 (appropriations to
and from stock). The Company has not since the Accounts Date appropriated
any asset forming part of its trading stock for any other purpose.
5.7 The Company has not since the Accounts Date been a party to any
deprecatory transaction for the purpose of section 176 Taxation of
Chargeable Gains Xxx 0000 (depreciatory transactions in a group) or which
could be treated as a depreciatory transaction under section 177 Taxation
of chargeable Gains Xxx 0000 (dividend stripping).
5.8 The Company has not made nor is entitled to make any claim under section
280 Taxation of Chargeable Gains Xxx 0000 (consideration payable by
instalments) to pay by instalments taxation on chargeable gains.
5.9 No election has been made under section 35(5) Taxation of Chargeable Gains
Tax 1992 (assets held on 31 March 1982) in respect of any of the assets of
the Company.
5.10 The Group has not been assessed nor will it be assessed for taxation under
sections 190 and 191 Taxation of Chargeable Gains Xxx 0000 (tax
recoverable from other group members).
6. Groups of Companies
6.1 The Company is not and has never been treated for the purposes of section
43 Value Added Tax Act 1994 (groups of companies) as a member of a group.
6.2 There is set out in the Disclosure Letter with express reference to this
warranty full details of all surrenders, claims and agreements for
surrenders or claims for:
6.2.1 any amounts by way of group relief under the provisions of sections
402 to 413 ICTA 1988 (group relief); and
6.2.2 any amounts of advance corporation tax under the provisions of
section 240 ICTA 1988 (surplus ACT);
in each case where:
6.2.3 any payment for group relief (within the meaning of section 402(6)
ICTA 1988) or for surrender of amounts of advance corporation tax
(within the meaning of section 240(8) ICTA 1988) remains outstanding
or could be reduced or increased; or
6.2.4 the claim or surrender has yet to be agreed by the Inland Revenue
for a specific amount.
6.3 The Disclosure Letter sets out details of all elections made under section
247 ICTA 1988 (group income) which are in force at the date hereof. All
dividends and other payments referred to in section 247 ICTA 1988 which
have been paid by the Company have been paid under an election made under
that section. The Company has not since the Accounts Date made and will
not up to Completion make or receive any payment of any dividend in
respect of which a notice under section 247(3) ICTA 1988 has effect.
6.4 Since the Accounts Date the Company has not ceased to be a member of a
group of companies such that section 178 or section 179 Taxation of
Chargeable Gains Act 1992 (company ceasing to be member of group) has
effect in relation to any asset or property of the Company. Neither
section 178 nor section 179 Taxation of Chargeable Gains Xxx 0000 will
have effect in relation to any asset or property of the Company as a
result only of this Agreement.
6.5 None of the assets of the Company have been acquired from another company
which, at the time of acquisition, was a member of the same group as
defined in section 170 Taxation of Chargeable Gains Xxx 0000 (groups of
companies interpretation).
6.6 No tax-free benefit has ever been conferred either upon the Company or
upon any person connected with the Company within the meaning of section
30 Taxation of Chargeable Gains Xxx 0000 (tax-free benefits). No scheme or
arrangement has been effected under which such a tax-free benefit could be
so conferred.
6.7 None of the Company's assets and no relevant asset has been materially
reduced in value within the meaning of section 30 Taxation of Chargeable
Gains Xxx 0000 (tax-free benefits). No scheme or arrangement has been
effected under which there could be such a reduction in value.
7. Value Added Tax
7.1 The Company is not nor has it ever been a registered and taxable person
for the purposes of the Value Added Tax Xxx 0000. The Company has complied
with and observed in all respects the terms of all statutory provisions,
directions, conditions, notices and agreements with H.M. Customs and
Excise relating to value added tax. The Company has maintained and
obtained accounts, records, invoices and other documents (as the case may
be) appropriate or requisite for the purposes of value added tax which are
complete, correct and up-to-date.
7.2 The Company:
7.2.1 is not, nor in the two years prior to Completion has been, in
arrears with any payments or returns or notifications under any
statutory provisions, directions, conditions or notices relating to
value added tax, or liable to any forfeiture or penalty or interest
or surcharge or to the operation of any penalty, interest or
surcharge provision;
7.2.2 has not been required by H.M. Customs and Excise to give security;
7.2.3 is not, and has not agreed to become, an agent, manager or factor
for the purposes of section 47 Value Added Tax Xxx 0000 (agents
etc.) of any person who is not resident in the United Kingdom;
7.2.4 has not made, and will not make prior to Completion, any supplies
that are exempt supplies; and
7.2.5 has not received a notice under paragraph 3 of Schedule 6 Value
Added Tax Xxx 0000 (valuation special cases) directing that the
value of goods supplied by the Company be taken to be their open
market value.
7.3 The Company has not since the Accounts Date been, and will not prior to
Completion be, treated as having made any supply of goods or services for
the purposes of value added tax where no supply has in fact been made by
the Company.
7.4 The Company does not use any schemes made under any of the Value Added Tax
Regulations 1995.
7.5 The Company has never received a surcharge liability notice under section
59 Value Added Tax Act 1994 (default surcharge) or a penalty liability
notice under section 64 Value Added Tax Xxx 0000 (persistent
misdeclarations).
7.6 The Company is not for the purposes of paragraph 5(5) of Schedule 10,
Value Added Tax Xxx 0000 (developers of certain non-residential buildings
etc.) the developer of any building or work in respect of which no
election has been made under paragraph 2(1) of that Schedule by the
Company.
7.7 There is set out in the Disclosure Letter with express reference to this
warranty full details of each of the assets of the Company to which Part
XV of the Value Added Tax Regulations 1995 (adjustments to the deductions
of input tax on capital items) applies or will apply, including in
particular:
7.7.1 a description (including in the case of land or a building or part
of a building, the nature of the tenure and the time it has to run),
the date the first interval commenced and the input tax on the
capital item; and
7.7.2 the proportion of input tax for which credit has been claimed
(whether provisionally or finally in a tax year and stating which).
7.8 There is set out in the Disclosure Letter with express reference to this
warranty a list of all land, buildings and civil engineering works in
which the Company has an interest, stating in respect of each, and each
part of each, such land, building or work:
7.8.1 whether an election to waive exemption under paragraph 2(1) of
Schedule 10, Value Added Tax Xxx 0000 has been made;
7.8.2 whether it is intended for use of a dwelling, for a relevant
residential purpose or a relevant charitable purpose;
7.8.3 whether it is a freehold building or freehold civil engineering work
that was completed for value added tax purposes less than three
years prior to the date of this Agreement, and if so, when;
7.8.4 whether it is a building or work subject to a developmental tenancy,
development lease or developmental licence; and
7.8.5 whether it is a freehold building or freehold civil engineering work
that has not been completed for value added tax purposes.
7.9 The Company is not required to pay amounts on account of value added tax
under any order made under section 28 Value Added Tax Xxx 0000 (payments
on accounts).
8. Close Companies
8.1 The Company is not and has never been a close company within the meaning
of section 414 ICTA 1988 (close companies) or a close investment holding
company within the meaning of section 13A ICTA 1988 (close investment
holding companies).
8.2 The Company is not, nor has in the last six years been, liable to taxation
under the provisions of sections 418 to 422 or paragraph 10 of Schedule 19
ICTA 1988 (close companies).
8.3 The Company has never made any transfer of value within the meaning of the
Inheritance Tax Xxx 0000.
8.4 Neither the assets owned by nor the shares of the Company are subject to
an outstanding Inland Revenue charge as defined in section 237 Inheritance
Tax Xxx 0000.
8.5 No circumstances exist, or but for section 204(6) Inheritance Tax Act 1984
would exist, such that a power of sale could be exercised in relation to
any assets or shares of the Company pursuant to section 212 Inheritance
Tax Act 1984 (contingent liability of transferee for unpaid capital
transfer tax or inheritance tax).
9. Employees
9.1 The Company has received no notifications or notices under section 166
ICTA 1988 (benefits in kind: notices of nil liability).
9.2 The Company does not operate any scheme approved under section 202 ICTA
1988 (charities: payroll deduction scheme) or registered under Chapter III
of Part V ICTA 1988 (profit related pay).
9.3 No officer or employee of the Company participates in any scheme approved
under Schedule 9 ICTA 1988 (approved share option and profit sharing
schemes) or is a beneficiary or potential beneficiary of a qualifying
employee share ownership trust as defined in Schedule 5 Finance Xxx 0000
(employee share ownership trusts).
9.4 Since the Accounts Date the Company has not received any payment to which
section 601 to 603 ICTA 1988 apply (pension scheme surpluses: payments to
employers).
9.5 All sums payable under the existing arrangements for remunerating officers
and employees and rewarding persons rendering services to the Company are
deductible for the purposes of section 74 or 75 ICTA 1988 (deductions).
10. Stamp Duties
10.1 There is no instrument which is necessary to establish the Company's title
to any right or asset which is liable to stamp duty but which has not been
duly stamped or which would attract stamp duty if brought within the
relevant jurisdiction.
10.2 The Company has complied in all respects with the provisions of Part IV,
Finance Act 1986 (stamp duty reserve tax) and with any regulations made
under the same and the Company is not and will not become liable to pay
stamp duty reserve tax by reference to any agreement which falls within
the terms of section 87(1) of that Act and is entered into prior to
Completion.
11. International
11.1 The Company is and always has been resident only in the United Kingdom for
taxation purposes. The Company is not liable to taxation in any
jurisdiction other than the United Kingdom.
11.2 The Company has not, without the prior consent of the Treasury, entered
into any of the transactions specified in section 765 ICTA 1988 (migration
etc. of companies).
11.3 No income has arisen in a territory outside the United Kingdom in respect
of which any claim under section 584 ICTA 1988 (unremittable overseas
income) has been or could be made by the Company.
11.4 The Company has not disposed of any asset or of any interest in any asset
in a territory outside the United Kingdom in respect of which any claim
under section 279 Taxation of Chargeable Gains Xxx 0000 (foreign assets:
delayed remittances) has been or could be made.
11.5 The Company does not have any interest in any controlled foreign company
or in any offshore fund as defined respectively in Chapters IV and V of
Part XVII of ICTA 1988.
11.6 The Company does not have any interest in any company which is not
resident in the United Kingdom which would be a close company if it were
resident in the United Kingdom (section 13 Taxation of Chargeable Gains
Xxx 0000 - attribution of gains to members of non-resident companies).
12. Miscellaneous
The Company has no outstanding liability to pay instalments of development
land tax.
SCHEDULE 6
Properties
Part I
Details of the Properties
Freehold Properties
1. Hill House Sand Lane
Osgodby
Xxxxxx Xxxxxx
Xxxxx XX0 0XX
2. Xxxxxxx Xxxxx Xxxxxxx Xxxx
Xxxxx Xxxxx
Xxxxx
XX0 0XX
3. Xxxx Xxxx Xxxxx Xxxxxxxx Xxxx
Xxxxxxx
Xxxxx
XX0 0XX
4. Rose Hill Outreach 30 Rougement Avenue
Cadewell
Torquay
Devon
5. Dove Clinic Xxxxxxxxx-xx-Xxxx
Xxxxxx xx Xxxxx
Xxxxxx XX00 0XX
6. Xxxxxxx Xxxxx Xxxxxx Xxxx
Xxxxxxxxxx Xxxxxx
Xxxxxxx
Xxxxx XX0 0XX
7. The Willows 0 Xxxxxx Xxxxx
Xxxxxxx
Keighley
8. Xxxxxxxxx 00/00 Xxxxxxxxxx Xxxx
Hastings
East Sussex
9. Land on South East side of A706, Springfield
10. Land at Hyvot Loan
11. Land on east side of Xxxx Xxxx, Xxxx Xx Xxxxxxx,
Xxxxxxx
Leasehold Properties
12. Xxxxxx Xxxxxxx Xxxxx
Xxxxxxxx Xxxx
Xxxxxxxxx
Xxxxxxx
00. Xxxxx Court 00 Xxxxx Xxxx
Xxxxxxxxxx
Xxxxxxx
XX00 0XX
14. The Dell (and Plot 4) Xxxx Xxxx
Xxxxxxx
Xxxxxxx XX00 0XX
15. The Firs Xxxxx Xxxx
Xxxxx Xxxxxxx
Xxxxxxx XX00 0XX
Suffolk
16. Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxxxx-xx-Xxxxxxxxxx
Xxxxxxx XX00 0XX
17. The Oaks 000 Xxxxxx Xxxx
Xxx Xxxxxx
Xxxxxx XX0 0XX
18. Xxxxxxxxx Xxxxx Xxx Xxxxx
Xxxxxxxxxxx
Xxxx Xxxxxxxxx
XX00 0XX
19. Weald Hall Weald Hall
Weald Hall Lane
North Weald
Epping Forest
20. Xxxx 0X Xxxxxxx Xxxxx
Xxxxxxx Xxxx
Xxxxxxxx
Xxxxx
Xxxxx
21. Office at Annexe Suite Xxxxx Xxxxx
00 Xxxx Xxxxxx
Xxxxxxxxxxxxx
Xxxxxxxxxxxxx
00. Office at 203/204, 205 & 206 Xxxxxxxx
House,
Temple Avenue
Victoria Embankment
Xxxxxx XX0X 0XX
23. Addison Court Addison Street
Accrington
Lancashire
24. Eden Court Ghyllroyd Drive
Xxxxxxxxxx
Xxxxxxxx
West Yorkshire
25. Xxxxxxxx Xxxxxxx Xxxxxxxxx Xxxx
Xxxxxx
Xxxxxxxxx
Xxxxx Xxxxxxxxx
26. Cumbrae Lodge Castle Road
Irvine
Ayrshire
Scotland
27. Catchpole Court Walnut Tree Lane
Sudbury
28. Houndswood Nursing Home Xxxxxx Xxxx
Radlett
Hertfordshire
29. Tall Xxxx Xxxxxxx Street
Biddulph
Stoke on Trent
30. Woodlands Sands Lane
Mirfield
West Yorkshire
Part II
Warranties relating to the Properties
1. The Properties comprise all the freehold properties owned by the Company
or occupied by it under licence or in which the Company has any other
interest.
2. The Company has vacant possession of each of the Properties subject to the
agreement rights of the residents.
3. The Company is the legal and beneficial owner of each of the Properties.
4. The information contained in Part I of this Schedule 6 as to the tenure of
each of the Properties is true and accurate in all material respects.
5. Each of the Properties and their title deeds to the Company's interest
therein are free from any mortgage, charge, rentcharge, lien, incumbrance
or other third party right whether in the nature of security or otherwise
except as specified in the Disclosure Letter.
6. There is no option or agreement for sale, mortgage, charge (whether
specific or floating), lien, lease, agreement for lease, condition,
restrictive covenant or any other incumbrance in respect of the Properties
or any part of them and the Properties are not subject to the payment of
any outgoings (except the usual rents, rates and taxes) nor are there any
persons in unlawful possession or occupation of or who have or claim any
rights or easements of any kind in respect of the Properties or any part
of them adverse to the estate, interest, right or title of the Company
save as already disclosed to the Purchaser.
7. There are not in respect of the Properties or any part of them:
7.1 any outstanding notices or orders issued by or agreement with any
local or other authority;
7.2 any proceedings in respect of any infringement of the building
bye-laws or any monetary claim or liability (contingent or
otherwise) under Town & Country Planning legislation or regulations
or otherwise;
7.3 any enforcement or stop notice under the Town and Country Planning
legislation or relevant regulations; or
7.4 any order or resolution for the compulsory acquisition of the
Properties or any part of them by any authority or any notice for
closing, demolition clearance or requisition of the Properties and
the Vendors are not aware of any proposals in relation to any of the
matters referred to in this paragraph or any other circumstances
known which might result in any such order notice or proceedings
being made or served or which may otherwise affect any of the
Properties.
8. The Properties are occupied for purposes permitted under the provisions of
the Town and Country Planning legislation orders and regulations
applicable to them and the Vendors are not aware of any breaches or
non-compliance with the requirements of the relevant local or other
interested authorities which the Vendors believe have been fully complied
with and the user or intended user of them is as of right and/or the
permitted user of them for the purposes of such legislation orders and
regulations.
9. The Vendors in whom title is vested have performed and observed all
covenants, conditions, agreements, statutory requirements, planning
consents, by-laws, orders and regulations affecting the Properties and
requiring observance or performance by them and no notice of any breach of
any such matters has been received to the Vendors' knowledge.
10. In respect of all buildings comprised in the Properties to which any
enactment, regulation or order relating to protection against or means of
escape from fire applies, all requirements of such enactment, regulation
or order and of any notice or order have been complied with to the
satisfaction of the district surveyor and/or other appropriate officer and
no order prohibiting the occupation of a building or part of it has been
made under such enactment,
regulations or order and no issue of such notices or orders has been
intimated to the Company to the Vendors' knowledge.
11. Since the Accounts Date the Company has not acquired or disposed of any
land or building or any estate, interest, right or title in any land or
building.
12. The Company has where relevant at all times complied with the Registered
Homes Xxx 0000 and no notice of any breach has been received.
13. All capital allowances, rating reliefs and other benefits received by the
Company in respect of the Properties were granted pursuant to a proper and
valid claim and there has been no demand for recovery from the Company.
SCHEDULE 7
Warranties relating to environmental matters
In this Schedule 7:
Consents means all consents, licences,
authorisations, registrations and permits
required under Environmental Laws to be
obtained in connection with the use of any
of the Properties or the conduct of the
business of the Company;
Environmental Law means all European Community, national,
regional or local statutes or regulations
concerning Environmental Matters in force at
the date hereof;
Environmental Matters means all matters relating to
pollution of the environment or harm to
human health, including but not limited to
those relating to waste, discharges,
emissions and releases to land, air and
water, nuisance, health and safety and the
manufacture, use, treatment, storage,
transport or disposal of Hazardous
Substances;
Hazardous Substances means chemicals, wastes, forms of
energy, radioactive substances, or other
polluting, dangerous, hazardous or toxic
substances; and
Relevant Date Means 31st May 1993.
1. Land Use
The Company occupies and uses the Properties solely for the purpose of
conducting its business.
2. Land Contamination
2.1 There has been no spill, leakage, emission, discharge, escape or deposit
into, on, or from the Properties of any Hazardous Substances since the
Relevant Date (nor to the best of the knowledge, information and belief of
the Vendors prior to the Relevant Date) to land, air or water (including
ground water) in such quantities which may cause material harm to health
or to the environment.
2.2 Since the Relevant Date and, to the best of the Vendors' knowledge,
information and belief, prior thereto, no public authority or other
regulatory body has exercised or given written notice to the Company to
exercise any powers to carry out works to clean up contamination on the
Properties, or required the Company to carry out such works on the
Properties.
2.3 No environmental survey, inspection, report or audit has been carried out
for or on behalf of the Company or the Vendors in respect of the
Properties since the Relevant Date (or, to the best of the Vendors'
knowledge, information and belief, prior thereto).
3. Consents
3.1 The Company has all Consents, on account of any of its activities on the
Properties and any substances kept or used on the Properties.
3.2 Since the Relevant Date and, to the best of the Vendors' knowledge,
information and belief, prior thereto, the Company is and has been in full
compliance with the terms and conditions of the Consents issued to it.
3.3 All the Consents are in full force and effect and, so far as the Vendors
are aware, no circumstances exist which are likely to lead to suspension,
variation or revocation of any or all of the Consents.
3.4 Since the Relevant Date and, to the best of the knowledge, information and
belief of the Vendors, prior thereto, no written notification has been
received by the Company and, so far as the Vendors are aware, no action
has been taken
by the regulatory authorities in respect of breaches or alleged breaches
of conditions of the Consents.
4. Waste Management
4.1 Since the Relevant Date (and, to the best of the Vendors' knowledge
information and belief, prior thereto) no written notice has been received
by the Company in respect of breaches or alleged breaches of its duty of
care in relation to waste under section 34 of the Environmental Protection
Xxx 0000.
4.2 Since the Relevant Date (and, to the best of the Vendors' knowledge
information and belief, prior thereto) the Company has not deposited,
treated, kept or disposed of any waste on the Properties otherwise than in
accordance with any Environmental Law.
5. Criminal Liability
5.1 Since the Relevant Date (and, to the best of the Vendors' knowledge
information and belief, prior thereto) no written notice has been received
by the Company in respect of breaches or alleged breaches of Environmental
Laws.
5.2 Since the Relevant Date (and, to the best of the Vendors' knowledge,
information and belief, prior thereto) the Company has not been involved
in any criminal litigation or other legal proceedings relating to a breach
or alleged breach of any Environmental Laws.
5.3 No criminal litigation is pending or, so far as the Vendors are aware,
threatened against the Company or any of its directors, officers or
employees.
6. Statutory and Common Law Nuisance
6.1 Since the Relevant Date (and, to the best of the Vendors' knowledge,
information and belief, prior thereto) no public or local authority or
member of the public has given written notice complaining to the Company
alleging, and so far as the Vendors are aware, no member of the public has
complained to a local authority of, a nuisance arising on or from the
Properties. No litigation in
this respect is pending or, so far as the Vendors are aware, threatened
against the Company.
6.2 So far as the Vendors are aware, the Properties are not affected by any
actionable nuisance at law adversely affecting the Company's use and
enjoyment or other rights in respect thereof.
7. Other Tortious Liability
7.1 So far as the Vendors are aware, the Company has not received any written
complaint made by any public or regulatory authority or member of the
public alleging a claim in tort other than a claim in nuisance, as
warranted above.
8. Health and Safety
8.1 Since the Relevant Date (and, to the best of the Vendors' knowledge
information and belief, prior thereto) no written notification has been
received by the Company alleging breach of regulations made under the
Health and Safety at Work etc. Xxx 0000 or otherwise regarding health and
safety relating to the operation of the Company.
8.2 There is no outstanding claim from employees of the Company regarding the
Company's duty to ensure their health, safety and welfare at work under
the Health and Safety at Work etc. Xxx 0000.
SIGNED by )
for and on behalf of STONEYRUN )
INC in the presence of: )
SIGNED by )
for and on behalf of NEW SOUTHWOOD )
ASSOCIATES INC in the presence of: )
SIGNED by )
for and on behalf of XXXX, SELLS & )
PARTNERS LIMITED in the presence of: )
SIGNED by )
for and on behalf of XXXX, SELLS LPIA )
in the presence of: )
SIGNED by )
for and on behalf of XXXX, SELLS LPIC )
in the presence of: )
SIGNED by )
for and on behalf of TIVERTON )
HOLDINGS LIMITED in the presence of: )
SIGNED by )
for and on behalf of EAGLEVIEW III )
ASSOCIATES LP in the presence of: )
SIGNED by )
for and on behalf of LOWTON )
HOLDINGS LIMITED in the presence of: )
SIGNED by )
for and on behalf of SERGUS )
INVESTMENTS S.A. )
in the presence of: )
SIGNED by )
for and on behalf of CRAEGMOOR )
HEALTHCARE COMPANY LIMITED )
in the presence of: )
