EXECUTION COPY
DATED 28 JUNE 2001
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(1) XXXXXX DUFFRYN HOLDINGS BV,
XXXXXX DUFFRYN (INTERNATIONAL)
LIMITED and XXXXXX DUFFRYN
INVESTMENTS LIMITED as Sellers
(2) OSHKOSH GROUP BV and OSHKOSH
EUROPEAN HOLDINGS SL as Purchasers
(3) XXXXXX DUFFRYN LIMITED
as Sellers' Guarantor
(4) OSHKOSH TRUCK CORPORATION
as Purchasers' Guarantor
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SALE AND PURCHASE AGREEMENT
for all the issued share
capitals of Geesink Group BV, Norba AB and Geesink
Norba Limited
----------------------------------------------------
XXXX & MAW
00 Xxxxx Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Tel: 000-0000 0000
Fax: 000-0000 0000
Ref: 456/422/27461.3
CONTENTS
Clause Subject Matter Page
1. Definitions and Interpretation 2
2. Agreement to Sell and Xxxxxxxx 00
0. Purchase Price 14
4. Completion 20
5. Anti-Trust Notifications 27
6. Warranties 28
7. Purchasers' and Purchasers' Guarantor's Warranties
and Undertakings 33
8. UK Pensions 34
9. Group and Sellers' Xxxxxxxxxx 00
00. Norba Acquisition Agreement 35
11. Specific Indemnities 39
12. Announcements and Confidentiality 41
13. Tax Losses and Fiscal Unity 44
14. Guarantees 47
15. Costs 49
16. Entire Agreement 49
17. Continuing Effect 50
18. Invalidity 50
19. Amendments, Variations and Waivers 50
20. Further Assurance and Assistance 51
21. Counterparts 52
22. Assignment and Third Party Rights 53
23. Notices 54
24. Currency Conversion 56
25. Governing Law and Jurisdiction 56
Schedules
1. Part 1: Details of the Companies
Part 2: Details of the Subsidiaries
Part 3: Shares to be Sold
2. Company Intellectual Property
3. Completion Arrangements
4. Warranties
5. Limitations On Claims
6. Properties
7. UK Pensions
8. Apportionment Of Purchase Price
9. Conduct Between Exchange And Completion
10. Example Calculation of Net Debt
Documents In The Agreed Terms
Disclosure Letter
Letters Of Resignation For Directors
Powers Of Attorney
Dutch Notarial Deed
Sellers' Deed Of Covenant
Purchasers' Funding Termsheet
Tax Deed
Xx Xxxxxx' Deed Of Covenant
Purchasers' Banking Schedule
SALE AND PURCHASE AGREEMENT
DATE: 28th JUNE 2001
PARTIES:
(1) XXXXXX DUFFRYN HOLDINGS BV a company incorporated in the Netherlands
(registered number 39031622) whose registered office is at Xxxxxxxx 0,
0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx, XXXXXX DUFFRYN (INTERNATIONAL)
LIMITED a company incorporated in England and Wales (registered number
1235617) whose registered office is at Xxxxxx Xxxxxxx Xxxxx, Xxxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxxx XX00 0XX and XXXXXX DUFFRYN INVESTMENTS
LIMITED a company incorporated in England and Wales (registered number
739935) whose registered office is at Xxxxxx Xxxxxxx Xxxxx, Xxxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxxx XX00 0XX (each a "Seller" and together the
"Sellers");
(2) OSHKOSH GROUP BV a private company with limited liability (besloten
vennootschap met beperkte aansprakelijkheid) incorporated under the
laws of the Netherlands with its seat in Amsterdam and its business
office at Xx Xxxxxxxxxxxxxx 000, 0000 XX, Xxxxxxxxx, Xxx Xxxxxxxxxxx
registered in the Commercial Register under number 34158044 ("Oshkosh
Group") and OSHKOSH EUROPEAN HOLDINGS S.L. ("Oshkosh European
Holdings") a company incorporated in Spain (registered number
Commercial Registry of Madrid, Volume ("Tomo") 16,400, Book ("Libro")
0, Page ("Folio") 110, Section ("Seccion") 8a, Sheet ("Hoja") M-278804)
whose registered office is at Xxxx Xxxx Xxxxx 00, 00000 Xxxxx Xxxx xx
Xxxxxxxx, Xxxxx (together the "Purchasers");
(3) XXXXXX DUFFRYN LIMITED a company incorporated in England and Wales
(registered number 298073) whose registered office is at Xxxxxx Xxxxxxx
Xxxxx, Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx XX00 0XX (the "Sellers'
Guarantor"); and
(4) OSHKOSH TRUCK CORPORATION a company incorporated in Wisconsin whose
registered office is at 0000 Xxxxxx Xxxxxx, Post Office Box 2566,
Oshkosh, Wisconsin 54902 United States of America (the "Purchasers'
Guarantor").
BACKGROUND:
(A) Geesink Group BV is a company limited by shares incorporated in the
Netherlands on 13 December 1969 with registered number 17011545; Norba
AB is a company
1
limited by shares incorporated in Sweden on 4 May 1914 with registered
number 556012-0882; and Geesink Norba Limited is a private limited
company incorporated in England and Wales on 28 October 1935 with
registered number 306452. Further details of the Companies are set out
in Schedule 1, Part 1 (Details of the Companies).
(B) The companies of which details are set out in Schedule 1, Part 2
(Details of the Subsidiaries) are subsidiaries of the Companies.
(C) The Sellers have agreed to sell all of the issued shares in the
capitals of the Companies to the Purchasers for the consideration and
upon the terms set out in this Agreement.
(D) The Sellers are subsidiaries of the Sellers' Guarantor and the Sellers'
Guarantor has agreed, in consideration of the Purchasers entering into
this Agreement and agreeing to be bound by its terms, to guarantee the
performance by the Sellers of their obligations under this Agreement.
(E) The Purchasers are subsidiaries of the Purchasers' Guarantor and the
Purchasers' Guarantor has agreed, in consideration of the Sellers'
entering into this Agreement and agreeing to be bound by its terms, to
guarantee the performance by the Purchasers of their obligations under
this Agreement.
IT IS AGREED that:
1. Definitions and Interpretation
1.1 Defined terms
In this Agreement and the Background:
"Agreed Form Documents" means the Disclosure Letter, the Dutch Notarial
Deed, the Tax Deed, the Sellers' Deed of Covenant, the Purchasers'
Funding Term Sheet, Xx Xxxxxx' Deed of Covenant, the Letter of
Resignation for Directors, the Purchasers' Banking Schedule and the
Powers of Attorney in the Agreed Terms;
"Agreed Redundancy Programme" means the programme of redundancies in
Norba Limited detailed in the Disclosure Letter;
"Agreed Terms" means, in relation to any document, that document in the
terms agreed between the parties and signed or initialled for
identification purposes only by or on behalf of each party prior to
execution of this Agreement;
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"Associate" has the meaning given in section 435 Insolvency Xxx 0000;
"Auditors" means Xxxxxx Xxxxxxxx of 0 Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX;
"Balance Sheet Date" means 31 March 2001;
"Business Day" means a day (not being a Saturday or Sunday) when banks
generally are open in the City of London, Amsterdam, Stockholm and the
United States of America for the transaction of general banking
business;
"Companies" means Geesink Group BV, Norba AB and Geesink Norba Limited,
details of each of which are given in Schedule 1, Part 1 (Details of
the Companies) and any reference to a "Company" is a reference to any
one of them;
"Companies Act" means the Companies Xxx 0000;
"Company Intellectual Property" means all Intellectual Property which
at the Completion Date is owned by any of the Companies or any of the
Subsidiaries, and which is either used in or has been developed for use
in or is required for or intended for use in the business of the Group
as currently carried on, including that listed in Schedule 2 (Company
Intellectual Property);
"Completion" means completion of the sale and purchase of the Shares
under this Agreement;
"Completion Date" means close of business on the day Completion takes
place;
"Completion Inter-Company Debt" means all monies owed by any member of
the Group to any member of the Sellers' Group as at the Completion Date
but for the avoidance of doubt not including any amounts to be paid by
any members of the Group to any members of the Sellers' Group in
respect of the settlement of corporate income tax;
"Completion Inter-Company Loans" means all monies owed by any member of
the Sellers' Group to any member of the Group as at the Completion
Date;
"Completion Net Debt" means the Debt of the Group as at the Completion
Date less any cash, Completion Inter-Company Loans and an amount equal
to the value of any marketable securities held by the Group as at the
Completion Date (but excluding any monies received by the Group in
settlement of any claims brought by the Group under
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any insurance policies in which the Group has an interest between 31
March 2001 and the Completion Date);
"Completion Transaction Costs" means such sum as is equal to all and
any Transaction Costs paid or payable by the Group as at Completion,
determined in accordance with Clause 3.8;
"Confidential Information" means all information designated as
confidential or which a recipient would reasonably consider to be
confidential which is proprietary to any of the Companies or any of the
Subsidiaries and includes all information used in or otherwise relating
to the Group or its business, affairs, customers or the marketing of
any goods or services including trade secrets, technical processes and
technical information, customer names and lists and other details of
customers, sales targets, sales statistics, market share statistics,
market research surveys and reports, sales pricing, costs of sales,
information relating to future business developments or planning,
future projects, commercial relationships or legal advice, in each
case, in whatever form held;
"Confidentiality Agreement" means the confidentiality agreement made on
25 January 2001 between Prestige Acquisitions Limited and the
Purchasers' Guarantor;
"Consolidated Accounts" means the audited financial statements of the
Group audited by the Auditors in the form of a statutory balance sheet
as at the Balance Sheet Date, and a profit and loss account and a
cashflow statement for the financial year ended on the Balance Sheet
Date (in each case of the Group and incorporating appropriate
eliminations) together in each case with all notes, reports and
statements annexed thereto;
"Danish Warranties" means the additional warranties set out in Part 8
of Schedule 4 (Warranties);
"Debt" means third party loans, overdrafts, hire purchase or finance
and other capital leasing arrangements, dividends payable or declared
but not paid, Inter-Company Debt and including interest payable to a
party which is not a member of the Group and other obligations of a
similar nature whether short or long term (but excluding any such
obligations to Xxxxxx Duffryn Holdings BV in respect of salary and
other remuneration payments of an employee of a member of the Group or
other properly incurred administrative expenses settled by such person
which are customarily
4
recharged by a member of the Group (shown in the Consolidated Accounts
at NLG 2.862 million));
"Directors" means the directors of each of the Companies and each of
the Subsidiaries named in Schedule 1, Part 1 (Details of the Companies)
and Schedule 1, Part 2 (Details of the Subsidiaries);
"Disclosed Environmental Matter" means any matter referred to in Annex
2 of the Disclosure Letter;
"Disclosure Letter" means the disclosure letter from the Sellers to the
Purchasers, together with its annexures in the Agreed Terms having the
same date as this Agreement;
"Dutch Warranties" means the additional Warranties set out in Part 2 of
Schedule 4 (Warranties);
"Dutch Subsidiaries" means those of the Subsidiaries incorporated in
the Netherlands in whose shares Geesink Group BV is directly or
indirectly interested;
"Dutch Notarial Deed" means the notarial deed in the Agreed Terms
effecting the transfer of the Shares in the capital of Geesink Group BV
from Xxxxxx Duffryn Holdings BV to Oshkosh Group;
"Encumbrance" means any mortgage, charge, pledge, hypothecation, lien
and security interests of whatsoever nature (including, without
limitation, any imposed by law) and any proprietary interest or equity
of any person including (without limitation) any title retention,
option or right of pre-emption;
"Environment" means any of the following media namely air, controlled
waters (as defined in section 104 of the Water Resources Act 1991) or
analogous legislation outside the United Kingdom or land (including
without limitation those media within buildings or other natural or man
made structures above or below ground and tanks and underground
drains);
"Environmental Laws" means any applicable statutes, statutory
instruments, regulations, directives or orders which relate to the
pollution or protection of the Environment and which are legally
binding and in full force and effect at the date hereof;
5
"Environmental Permits" means all or any authorisations, certificates,
permits, licences or consents required under any Environmental Laws for
the operation of the Company;
"Environmental Warranties" means those Warranties at Paragraph 19 of
Part 1 of Schedule 4 (Warranties);
"Estimated Net Debt" has the meaning given to it in Clause 3.7
(Estimation of Completion Net Debt and Completion Transaction Costs);
"Estimated Transaction Costs" has the meaning given to it in Clause 3.7
(Estimation of Completion Net Debt and Completion Transaction Costs);
"Exclusivity Agreement" means an agreement made between the Purchaser's
Guarantor and the Sellers' Guarantor dated 18 May 2001;
"Finance Manual" means the Xxxxxx Duffryn group finance manual in the
form annexed to the Disclosure Letter;
"GAAP" means generally accepted accounting principles in force in the
United Kingdom as promulgated by the Institute of Chartered Accountants
of England and Wales, the Accounting Standards Board and the Urgent
Issues Task Force at the date relevant thereto;
"Group" means the Companies and the Subsidiaries and "member of the
Group" shall be construed accordingly;
"Group Guarantees" means those guarantees of the obligations of any
member of the Sellers' Group entered into by the Companies and the
Subsidiaries or any of them and now subsisting;
"Intellectual Property" means all intellectual property, including
patents, utility models, trade and service marks, trade names, domain
names, right in designs, copyrights, moral rights, topography rights,
rights in databases, rights in know-how, Confidential Information and
other proprietary information, in all cases whether or not registered
or registrable and including registrations and applications for
registration of any of these and rights to apply for the same and all
rights and forms of protection of a similar nature or having equivalent
or similar effect to any of these anywhere in the world;
6
"Inter-Company Debt" means all monies owed by any member of the Group
to any member of the Sellers' Group but for the avoidance of doubt not
including any amounts to be paid by any members of the Group to any
members of the Sellers' Group in respect of the settlement of corporate
income tax;
"Inter-Company Loans" means all monies owed by any member of the
Sellers' Group to any member of the Group;
"Interest Rate" means, in relation to a day during any period during
which interest accrues, the EURIBOR percentage rate calculated on an
actual/360 day count basis as determined by the Banking Federation of
the European Union for three month periods as displayed on the EURIBOR
page of the Reuters screen at or about 11 a.m. London time on that day,
save that for any day that is not a Business Day the relevant rate for
that day will be that for the last preceding Business Day. If the
agreed page is replaced or service ceased to be available, the Sellers'
Guarantor may specify another page or service displaying the
appropriate rate after consultation with the Purchasers;
"Irrecoverable Environmental Losses" means any and all Losses arising
from any relocation of any part of the operation of the business which
is carried out in connection with the carrying out of Remedial Action
or other works or any loss of profit or Losses arising from any failure
to comply with any contractual obligation;
"London Stock Exchange" means London Stock Exchange plc;
"Losses" in respect of any matter, event or circumstance includes all
demands, claims, actions, proceedings, damages, payments, losses,
costs, expenses or other liabilities;
"Management Accounts" means the April and May 2001 management accounts
of the Group prepared by the Group;
"Xx Xxxxxx' Deed of Covenant" means the deed of that name in the Agreed
Terms to be entered into between the Purchasers, the Purchasers'
Guarantor and Mr Xxxxxxx Xxxxxx at Completion;
"NASD" means the National Association of Securities Dealers;
"Net Debt" means the Debt of the Group as at the Balance Sheet Date
less any cash, Inter-Company Loans and an amount equal to the value of
any marketable securities held by the Group as at the Balance Sheet
Date, as set out in the Consolidated
7
Accounts. Example calculations of the Net Debt by reference to the
Consolidated Accounts and the management accounts of the Group for
March 2001 for illustrative purposes only are set out in Schedule 10
(Example Calculation of Net Debt);
"Norba AB Properties" means those Properties leased to Norba AB
situated at Blomstermala, Sweden;
"Norba Acquisition Agreement" means the Share Purchase Agreement
between (1) Partek Cargotec AB and (2) Xxxxxx Duffryn (International)
Limited regarding all shares in Norba AB dated 21 August 2000;
"Norba Warranties" means the warranties and representations given by
Partek Cargotec AB to Xxxxxx Duffryn (International) Limited pursuant
to article 8 (excluding article 8.5) of the Norba Acquisition
Agreement;
"Polish Warranties" means the additional Warranties set out in Part 9
of Schedule 4 (Warranties);
"Proceedings" means any proceedings, suit or action arising out of or
in connection with this Agreement;
"Properties" means the freehold and leasehold properties described in
Schedule 6 (Properties);
"Purchase Price" means the purchase price specified in Clause 3.1
(Purchase Price);
"Purchasers' Accountants" means Xxxxxx Xxxxxxxx LLP of Milwaukee,
Wisconsin, USA;
"Purchasers' Banking Schedule" means the pro forma letter in the Agreed
Terms setting out certain requested information to be provided by
Xxxxxx Duffryn Limited to the Purchasers;
"Purchasers' Funding Termsheet" means the termsheet in the Agreed Terms
setting out the terms upon which the Purchasers will seek third party
financing to enable them to satisfy the Purchase Price;
"Purchasers' Group" means any of the following from time to time: the
Purchasers' Guarantor, its subsidiaries (including, for the avoidance
of doubt, the Purchasers) and subsidiary undertakings and any holding
company or parent undertaking of the Purchasers' Guarantor and all
other subsidiaries and subsidiary undertakings of any
8
holding company or parent undertaking of the Purchasers' Guarantor and
"member of the Purchasers' Group" shall be construed accordingly;
"Purchasers' Solicitors" means Xxxxxxxxx Xxxxxx & Xxxxx of 000 Xxxxxx
Xxxxxx, Xxxxxx XX0X 0XX;
"Reasonable and Prudent Operator" means a person exercising that degree
of skill, diligence, prudence and foresight which would reasonably be
expected from an experienced operator engaged in the same type of
undertaking as the business of the Companies carried out at Completion
and under the same or similar circumstances as at Completion;
"Recoverable Environmental Losses" means any and all Losses arising out
of any of the following: claims by neighbouring owners/occupiers of
land in respect of damage caused by off-site migration of pollution
from any Property; removal, or the making safe or secure, of any
pollution, including investigatory or other action necessary to assess
the condition of the Properties or any other environmental media and
undertaking works or carrying out any operations for the purpose of
preventing, minimising, remedying or mitigating the effects of the
pollution; the making of any subsequent inspections required from time
to time for the purposes of reviewing the condition of the Properties
or environmental media; the costs of obtaining any Environmental
Permits necessary in order to undertake any of the above-mentioned
actions, including the maintenance costs of any such Environmental
Permit; reasonable legal and consultancy fees in connection with advice
and assistance necessitated in consequence of the foregoing items;
disposal costs of removing the pollution off site; and (to the extent
legally permissible) environmental fines and penalties incurred by the
Purchaser and/or any member of the Group and which are attributable to
action or inaction of the Sellers PROVIDED THAT in each case any and
all such Losses are the minimum reasonably necessary under
Environmental Laws or Environmental Permits to remedy the particular
breach of the Environmental Warranty in question and exclude
Irrecoverable Environmental Losses;
"Securities Exchange Commission" means the Securities Exchange
Commission of the United States of America;
"Sellers' Deed of Covenant" means the deed of that name in the Agreed
Terms to be entered into between the Sellers, the Purchasers and the
Sellers' Guarantor at Completion and where appropriate references to
the Sellers' Deed of Covenant shall mean the deed of covenant as
executed by the parties to it;
9
"Sellers' Group" means any of the following from time to time, except
the Companies and the Subsidiaries: the Sellers' Guarantor, its
subsidiaries and subsidiary undertakings and any holding company or
parent undertaking of the Sellers' Guarantor and all other subsidiaries
and subsidiary undertakings of any holding company or parent
undertaking of the Sellers' Guarantor and "member of the Sellers'
Group" shall be construed accordingly;
"Sellers' Guarantees" means those guarantees of the obligations of any
member of the Group entered into by any member of the Sellers' Group
and now subsisting (including but without limitation the several
liability of Xxxxxx Duffryn Holdings BV for the debts of Geesink Group
BV as a consequence of Xxxxxx Duffryn Holdings BV having filed a
declaration with the trade register of the Chamber of Commerce in
Lelystad, The Netherlands in accordance with paragraph 2.403-1 sub b of
the Dutch Civil Code);
"Sellers' Dutch Solicitors" means Lovells of Frederiksplein 42, Xxxxxxx
000, 0000 XX, Xxxxxxxxx, xxx Xxxxxxxxxxx;
"Sellers' Swedish Solicitors" means Xxxxxxxxxx Xxxxxxxxx of XX Xxx
0000, 000 00 Xxxxxxxxx, Xxxxxx;
"Sellers' UK Solicitors" means Xxxx & Maw of 00 Xxxxx Xxxxxx Xxxx,
Xxxxxx, XX0X 0XX;
"Shares" means all the issued shares in the capitals of the Companies
details of which are given in Schedule 1, Part 1 (Details of the
Companies);
"Stock" means total stock and work in progress of the Group;
"Subsidiaries" means the companies details of which are given in
Schedule 1, Part 2 (Details of the Subsidiaries) and any reference to a
"Subsidiary" is a reference to any one of them;
"Swedish Warranties" means the additional Warranties set out in Part 3
of Schedule 4 (Warranties);
"Takeover Panel" means the Panel on Takeovers and Mergers of the United
Kingdom;
10
"Tax" or "Taxation" means and includes all forms of taxation and
impositions, duties, contributions, and levies in the nature of
taxation;
"Tax Deed" means the deed of covenant relating to Tax in the Agreed
Terms;
"Taxing Authority" means any Taxing or other authority, body or person
(whether inside or outside the United Kingdom) competent to impose any
liability to Tax;
"Termination Notice" has the meaning given to it in Clause 4.11
(Purchaser's Funding);
"Transaction Costs" means (pound)75,000, together with any costs
relating specifically to the transaction contemplated by this Agreement
in the nature of third party adviser's fees, special payments and/or
bonuses to employees or other similar payments, and accommodation and
travel costs of prospective purchasers of the Group, incurred in each
case by a member of the Group prior to Completion (except to the extent
payment of the same actually reduces the Purchase Price otherwise
payable by virtue of its inclusion in the Completion Net Debt) but
excluding those paid on or before 31 March 2001;
"UK Listing Authority" means the Financial Services Authority in its
capacity as the competent authority for the purposes of the Financial
Services Xxx 0000;
"Undisclosed Environmental Matter" means any matter the subject of a
claim under the Environmental Warranties which is not a Disclosed
Environmental Matter;
"VAT" means value added tax;
"VATA" means the Value Added Tax Xxx 0000;
"Warranties" means the warranties referred to in Clause 6 (Warranties)
and set out in Schedule 4 (Warranties) and the warranties referred to
in Clause 10.1 (Norba Warranties), given and made by the Sellers in
favour of the Purchasers. The Warranties shall also include:
(i) in relation to Norba AB, the Swedish Warranties;
(ii) in relation to Geesink Group BV and the Dutch Subsidiaries, the
Dutch Warranties;
(iii) in relation to Geesink Polska Sp.z o.o, the Polish Warranties;
11
(iv) in relation to Norba A/S, the Danish Warranties; and
(v) in relation to the branches of Geesink BV in Spain, Germany, France
and Italy, those Warranties in Parts 4, 5, 6 and 7 respectively of
Schedule 4 (Warranties); and
"Works Council" means the works council (gemeenschappelijke
ondernemingsraad) of Geesink BV and Geesink Kiggen BV.
1.2 Contents page and headings
In this Agreement, the contents page and headings are included for
convenience only and shall not affect the interpretation or
construction of this Agreement.
1.3 Meaning of references
In this Agreement, unless the context requires otherwise, any reference
to:
(a) this Agreement includes the Schedules, which form part of this
Agreement for all purposes;
(b) the Background is to the statements about the background to
this Agreement made above, a Clause or a Schedule is to a
clause of or a schedule to this Agreement and to a Part or a
Paragraph of a Schedule is to a part or a paragraph of that
Schedule;
(c) a statute or statutory provision, except as expressly provided
otherwise, includes any consolidation, re-enactment,
modification or replacement of the same, any statute or
statutory provision of which it is a consolidation,
re-enactment, modification or replacement and any subordinate
legislation in force under any of the same from time to time
except to the extent that any consolidation, re-enactment,
modification or replacement enacted after the date of this
Agreement would extend or increase the liability of any party
to any other under this Agreement;
(d) a party or the parties is to a party or the parties (as the
case may be) to this Agreement and shall include any permitted
assignees of a party;
(e) the masculine, feminine or neuter gender respectively includes
the other genders and any reference to the singular includes
the plural (and vice versa);
12
(f) a person includes any individual, firm, corporation,
unincorporated association, government, state or agency of
state, association, partnership or joint venture (whether or
not having a separate legal personality);
(g) a person includes a reference to that person's legal personal
representatives and successors;
(h) references to a company shall be construed so as to include
any company, corporation or other body corporate wherever and
however incorporated or established;
(i) a document is to that document as varied, supplemented or
replaced from time to time, in each case in writing;
(j) any English statutory provision or English legal term for any
action, remedy, method of judicial proceeding, document, legal
status, court, official or any other legal concept or thing
shall in respect of any jurisdiction other than England be
deemed to include what most nearly approximates in that
jurisdiction to the English statutory provision or English
legal term;
(k) writing shall include any modes of reproducing words in a
legible and non-transitory form;
(l) (E) or euros is to the lawful currency of the states in the
European Union which are from time to time participating in
economic and monetary union; and
(m) a time of the day is to London time and references to a day
are to a period of 24 hours running from midnight to midnight.
1.4 No restrictive interpretations
In this Agreement, general words shall not be given a restrictive
interpretation by reason of their being preceded or followed by words
indicating a particular class of acts, matters or things.
1.5 Companies Act definitions
In this Agreement, unless the context otherwise requires any word and
expression defined in section 258 or Part XXVI of the Companies Act and
not defined in this Agreement shall bear the meaning ascribed to it in
that Act.
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1.6 Several liability
Where one or more parties is expressed to have a right or an obligation
under this Agreement, such right or obligation shall be several as
between the parties expressed to have it save that:
(a) the Sellers' Guarantor shall have joint and several liability
for all obligations to which it is subject with others and it
shall have sole liability under the guarantee set out in
Clause 14.1 (Guarantee by Sellers' Guarantor); and
(b) the Purchasers' Guarantor shall have joint and several
liability for all obligations to which it is subject with
others and it shall have sole liability under the guarantee
set out in Clause 14.2 (Guarantee by Purchasers' Guarantor).
2. AGREEMENT TO SELL AND PURCHASE
2.1 Sale and purchase
Each of the Sellers shall sell with full title guarantee free from all
Encumbrances, and each Purchaser shall purchase, the entire legal and
beneficial ownership in the Shares set out against their respective
names in Schedule 1, Part 3 (Shares to be Sold), together with all
rights attached or accruing to them at Completion.
2.2 Waiver of pre-emption rights
The Sellers shall procure the waiver of all rights of pre-emption over
or other rights to restrict transfer of the Shares conferred either by
the articles of association or equivalent constitutional documentation
of the Companies or in any other way.
3. PURCHASE PRICE
3.1 Purchase Price
The amount payable for the Shares (the "Purchase Price") shall be as
follows:
(a) (E)150 million; less
(b) the greater of Net Debt or Completion Net Debt; less
(c) Completion Transaction Costs.
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3.2 Payment on Account
At Completion on account of the Purchase Price an amount equal to:
(a) (E)150 million; less
(b) the greater of Net Debt or Estimated Net Debt; less
(c) the Estimated Transaction Costs,
together with an amount equal to the interest that would have accrued
on such sum calculated on a daily basis at the rate of 2 per cent per
annum above the Interest Rate and compounded quarterly for the period
from 31 March 2001 up to and including the Completion Date or, if
neither of the conditions in Clause 4.1 (Conditions) have been
fulfilled on or before 13 July 2001, up to and including 31 July 2001
shall be paid to the Sellers' Guarantor as agent for the Sellers in
cash on Completion by way of electronic bank transfers in accordance
with Clause 4.8 (Completion Arrangements) and in the manner set out in
Schedule 3 (Completion Arrangements). For the purposes of calculating
such interest, the Interest Rate applicable for the second Business Day
prior to Completion shall apply for the days from such Business Day to
the Completion Date (if applicable). Such interest shall not be payable
if Completion does not occur.
3.3 Receipt by Sellers' Solicitors
Receipt by the Sellers' UK Solicitors, the Sellers' Dutch Solicitors or
the Sellers' Swedish Solicitors of any monies or completed
documentation to be provided by the Purchasers in satisfaction of any
of the obligations of the Purchasers under this Agreement shall be
accepted by the Sellers as a full and complete discharge of that
obligation and the Purchasers shall not be concerned to see the
application of any payments made by it under this Agreement.
3.4 Payment pursuant to claim
If any payment is made by the Sellers (or any of them) to the
Purchasers pursuant to a claim made by the Purchasers for any breach of
this Agreement or otherwise pursuant to this Agreement the payment
shall be made by way of reduction of the Purchase Price paid for the
Shares and that portion of the Purchase Price paid in relation to the
Company which is the subject matter of such claim shall accordingly be
deemed to have been reduced by the amount of that payment.
15
3.5 Interest on overdue amounts
Interest shall be payable by the Purchasers on any money which is not
paid by them to the Sellers or the Sellers' Guarantor under this
Agreement by the due date for its payment. Interest shall be payable by
the Sellers or the Sellers' Guarantor (as appropriate) or the
Purchasers or the Purchasers' Guarantor (as appropriate) on any money
which is not paid by the Sellers to the Purchasers or by the Sellers to
the Purchasers (as the case may be) in accordance with Clause 3.8
(Notification of Completion Net Debt and Completion Transaction Costs)
or Clause 3.13 (Adjustment payments for Completion Inter-Company Loans
and Completion Inter-Company Debts) or by the Sellers' Guarantor or to
Norba Limited in accordance with Clause 13.1 (Norba Limited losses).
Such interest shall accrue and be calculated on a daily basis, both
before and after any judgement, at the rate of 4 per cent per annum
above the Interest Rate for the period from the due date for its
payment until the date on which it is actually paid. It shall be
compounded quarterly and payable on demand.
3.6 Apportionment
The total price for the Shares under this Agreement shall be
apportioned between the Companies as set out in Schedule 8
(Apportionment of Purchase Price) and as so apportioned shall be
adopted by the parties for all purposes including Tax and stamp duty.
3.7 Estimation of Completion Net Debt and Completion Transaction Costs
No later than five Business Days prior to Completion, the Sellers shall
acting reasonably and in good faith provide to the Purchasers their
estimate of:
(a) the Completion Net Debt (the "Estimated Net Debt");
(b) the Completion Transaction Costs (the "Estimated Transaction
Costs");
(c) the Completion Inter-Company Debt (the "Estimated
Inter-Company Debt"); and
(d) the Completion Inter-Company Loans (the "Estimated
Inter-Company Loans").
16
3.8 Notification of Completion Net Debt and Completion Transaction Costs
Within twenty (20) Business Days after the Completion Date, the
Purchasers shall notify the Sellers of the amount of the Completion Net
Debt and the Completion Transaction Costs, together with details of all
components thereof (including but without limitation the Completion
Inter-Company Loans and the Completion Inter-Company Debt). At such
time, the calculation set out in Clause 3.2 shall be repeated replacing
Estimated Net Debt with Completion Net Debt and Estimated Transaction
Costs with Completion Transaction Costs. By reference to the final
confirmation of Completion Net Debt and Completion Transaction Costs,
the Sellers shall repay any amount overpaid by the Purchasers, or, as
the case may be, the Purchasers shall make an additional payment of any
underpayment by them on Completion, together with:
(a) the relevant interest overcharged, or, as the case may be
undercharged on said sum from 31 March 2001 to Completion or
31 July 2001 (as the case may be) pursuant to Clause 3.2; and
(b) an amount representing interest at the rate applied in Clause
3.2 (from Completion to the date of further payment or
repayment as the case may be) on the amount payable or
repayable under this Clause. For the avoidance of doubt, this
Clause 3.8(b) shall not apply in respect of any sums referred
to in Clause 3.8(a).
Payment is to be made in either case within five (5) Business Days of
the date of issue of the final confirmation of Completion Net Debt and
Completion Transaction Costs. Any payments made in accordance with this
Clause 3.8 shall be deemed to be an adjustment to the Purchase Price.
3.9 If Sellers disagree with Notification
The Sellers shall, within fifteen (15) Business Days of the
notification being submitted to them in accordance with Clause 3.8
(Notification of Completion Net Debt and Completion Transaction Costs),
notify the Purchasers in writing either that they approve of it or that
they disagree with it, in which event they shall in such notification
give details of the matters with which they disagree and the reasons
for such disagreement. If the Sellers fail to issue such notice within
fifteen (15) Business Days they shall be deemed to have approved the
notification submitted by the Purchasers. In the event of disagreement
the Sellers and the Purchasers shall use all reasonable endeavours
forthwith to resolve the matter or matters in dispute. Any such
17
resolution which enables the Completion Net Debt, the Completion
Transaction Costs, the Completion Inter-Company Loans and the
Completion Inter-Company Debt to be agreed shall be expressed in a
joint confirmation (the "Joint Resolution"), signed by the Purchasers
and the Sellers, stating the Completion Net Debt, the Completion
Transaction Costs, the Completion Inter-Company Loans and the
Completion Inter-Company Debt. If no Joint Resolution shall be issued
within thirty (30) Business Days of the notification having been
submitted to the Sellers as aforesaid, the matter shall be referred to
a firm of independent chartered accountants jointly agreed upon between
the Purchasers and the Sellers or (failing such agreement) appointed,
at the request of either the Purchasers or the Sellers at any time, by
the President from time to time of the Institute of Chartered
Accountants in England and Wales, which firm (the "Independent
Accountants") shall then determine the matter in dispute and, shall
confirm the Completion Net Debt, the Completion Transaction Costs, the
Completion Inter-Company Loans and the Completion Inter-Company Debt.
The Independent Accountants shall act as experts and not as
arbitrators. Their decision shall be communicated in writing to the
Purchasers and the Sellers and shall be final and binding upon the
Purchaser and the Sellers, save in the event of manifest error.
3.10 Costs to be Borne jointly
The costs of the Independent Accountants shall be borne as to one half
by the Sellers and as the other half by the Purchasers in connection
with all matters specified in Clause 3.8 to 3.12 (inclusive).
3.11 Records etc. to be Made Available
The Purchasers shall use reasonable endeavours to procure that all
records, working papers and other information within its possession or
control as may be reasonably required by the Sellers and/or the
Independent Accountants for the purpose of Clauses 3.8, 3.9 and 3.10,
shall be made available as soon as practicable upon a request for them
and shall generally render all reasonable assistance reasonably
necessary in connection with the final confirmation of the Completion
Net Debt and the Completion Transaction Costs.
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3.12 Meaning of "final confirmation of Completion Net Debt and Completion
Transaction Costs"
For the purposes of the Agreement "the final confirmation of Completion
Net Debt and Completion Transaction Costs" shall mean:
(a) the notification issued by the Purchasers pursuant to Clause
3.8 (if such notification is either approved or deemed to have
been approved by the Sellers pursuant to Clause 3.9 in
accordance with the time periods specified therein (If Sellers
disagree with Notification)), in which case the final
confirmation of Completion Net Debt and Completion Transaction
Costs shall, for the purposes of the Agreement, be treated as
issued five (5) Business Days after further notification has
been given or is deemed to have been given that the
Purchasers' notification is approved; or
(b) the Joint Resolution (if a disagreement shall have been
resolved as mentioned in Clause 3.9 (If Sellers disagree with
Notification)) in which case the final confirmation of
Completion Net Debt and Completion Transaction Costs shall,
for the purposes of the Agreement, be treated as issued five
Business Days after the date upon which the Joint Resolution
has been given; or
(c) the decision of the Independent Accountants (if any matter
shall be referred to the Independent Accountants as mentioned
in Clause 3.9 (If Sellers disagree with Notification)) in
which case the final confirmation of Completion Net Debt and
Completion Transaction Costs shall, for the purposes of the
Agreement, be treated as issued five Business Days after the
date upon which the decision shall have been given.
3.13 Adjustment payments for Completion Inter-Company Loans and Completion
Inter-Company Debts
By reference to the final confirmation of Completion Net Debt and
Completion Transaction Costs:
(a) the Purchasers shall procure that any amount in respect of the
Completion Inter-Company Loans overpaid by the relevant member
of the Sellers' Group at Completion is repaid and that any
additional payment of any underpayment at Completion in
respect of the Completion Inter-Company Debt is made by the
relevant member of the Group; and
19
(b) the Sellers shall procure that any amount in respect of the
Completion Inter-Company Debt overpaid by the relevant member
of the Group at Completion is repaid and that any additional
payment(s) of any underpayment at Completion in respect of the
Completion Inter-Company Loans is made by the relevant member
of the Sellers' Group,
together with an amount representing interest at the rate applied in
Clause 3.2 (from Completion to the date of further payment or repayment
as the case may be) on the amount payable or repayable under this
Clause. Payment is to be made in either case within five (5) Business
Days of the date of issue of the final confirmation of Completion Net
Debt and Completion Transaction Costs.
4. COMPLETION
4.1 Conditions
Completion is conditional on fulfilment of either of the following
conditions:
(a) the unconditional positive advice of the Works Council to the
sale of Geesink Group BV in accordance with the provisions of
this Agreement; or
(b) the positive advice of the Works Council to the sale of
Geesink Group BV in accordance with the provisions of this
Agreement (subject to such further consultations with the
Works Council as may be agreed by the parties) subject to
conditions which are reasonably acceptable to the Sellers and
the Purchasers.
For the purposes of this Clause 4.1(b), the Sellers shall not be
entitled to object to the acceptance of a condition of such positive
advice unless such condition directly or indirectly affects adversely
to a material extent the interests of a member of the Sellers' Group
and the Purchasers shall not be entitled to object to a condition of
such positive advice unless such condition directly or indirectly
affects adversely to a material extent the interests of a member of the
Purchasers' Group (such interests including those of the Dutch
Subsidiaries).
4.2 Notification of other parties
Upon either of the conditions in Clause 4.1 (Conditions) above being
fulfilled, delayed in fulfilment or becoming incapable of fulfilment
(but without prejudice to the provisions of Clause 4.3 (Consultation
with Works Council)), the relevant party
20
shall immediately notify the other parties and shall supply to the
others written evidence (if available) of the fulfilment of that
condition or (as the case may be), an explanation for the delay or
non-fulfilment.
4.3 Consultation with Works Council
(1) The Sellers and the Purchasers undertake to use all reasonable
endeavours to obtain the positive advice of the Works Council to the
sale of Geesink Group BV in accordance with the provisions of this
Agreement as soon as reasonably practicable.
(2) If the positive advice of the Works Council is obtained subject to
conditions the Sellers and the Purchasers shall consult with each other
to seek to determine if and to what extent the conditions are
reasonably acceptable to them, whether further consultation with the
Works Council is necessary or desirable, and how they might address
such conditions (or any of them).
4.4 If conditions not fulfilled
In the event that Completion does not take place on or before 31 July
2001, or such later date as the Sellers may advise the Purchasers or as
the Purchasers may advise the Sellers (which in either case shall not
be later than 31 August 2001), all rights and obligations of the
parties under this Agreement (except under Clauses 12 (Announcements
and Confidentiality), 15 (Costs) and 25 (Governing Law and
Jurisdiction)) shall terminate and no party shall have any claim
against any other, but without prejudice to the accrued rights and
obligations of the parties in respect of any breaches of this Agreement
before that termination.
4.5 Period before Completion
(1) The Sellers undertake that they shall procure that between the date of
this Agreement and Completion:
(a) the Companies and the Subsidiaries shall not do anything
outside the ordinary course of business which has a material
adverse effect on the financial or trading position of the
Group as a whole; and
(b) the Agreed Redundancy Programme shall be completed in
accordance with its terms.
21
(2) In addition, the provisions of Schedule 9 (Conduct between exchange and
Completion) shall apply as if set out in this Clause 4.5.
(3) The Sellers shall make arrangements with their insurers that, until the
Completion Date, in relation to all material insurance policies in
which the Group has an interest:
(a) such policies remain in force;
(b) the Purchasers' interest in the Group is noted; and
(c) there is endorsed upon the policy a notice stating that the
relevant member of the Group is the loss payee thereunder.
If and to the extent any claim is made under such insurance policies in
respect of the Group and relating to the period between the date of
this Agreement and the Completion Date which gives rise to a payment to
the Sellers under such policies, the Sellers shall, as soon as
reasonably practicable following the later of Completion and receipt by
the Sellers of any settlement monies, pay an amount equal to such
monies to the Purchasers.
4.6 Compliance with Merger Code
The Sellers and the Purchasers undertake after the date of this
Agreement to consult with relevant trade unions to the extent required
pursuant to Chapter II of the Dutch Merger Code (SER Fusiegedragsregels
1975).
4.7 Completion
Completion shall take place:
(a) in respect of the sale of Geesink Norba Limited at the offices
of the Sellers' Solicitors;
(b) in respect of the sale of Norba AB at the offices of
Xxxxxxxxxx Xxxxxxxxx at Xxxxxxxxxxxxx 0, Xxx 0000, XX-000 00
Xxxxxxxxx, Xxxxxx; and
(c) in respect of the sale of Geesink Group BV at the offices of
Lovells at Xxxxxxxxxxxxxx 00, Xxxxxxx 000, 0000 XX Xxxxxxxxx,
The Netherlands
on the fifth Business Day following the date on which either of the
conditions in Clause 4.1 (Conditions) has been fulfilled unless at such
time the Purchasers have yet
22
to obtain the necessary funding to satisfy the Purchase Price, in which
event Completion shall occur on the earlier of:
(i) the second Business Day following the date on which the
Purchasers obtain the necessary funding to satisfy the
Purchase Price; and
(ii) 31 July 2001 or such later date as the Sellers or the
Purchasers (as appropriate) may have advised the Purchasers or
the Sellers (as appropriate) in accordance with Clause 4.4 (If
conditions not fulfilled), provided that at such date no
Termination Notice has been issued by the Purchasers to the
Sellers in accordance with Clause 4.11 (Purchasers' Funding).
The Purchasers undertake to the Sellers to notify the Sellers forthwith
upon them having obtained the necessary funding to satisfy the Purchase
Price.
4.8 Completion arrangements
At Completion the Sellers and the Purchasers shall do those things
listed in Schedule 3 (Completion Arrangements). If the provisions of
Schedule 3 (Completion Arrangements) are not complied with relating to
the Sellers' obligations the Purchasers may:
(a) defer Completion to a date not more than 28 days after the
date specified in Clause 4.7 (Completion) as the date for
Completion in which event the provisions of this Clause 4.8
shall apply to Completion as so deferred; or
(b) proceed to Completion as far as practicable without prejudice
to their rights under this Agreement or otherwise.
4.9 Repayment of Inter-Company Debt
The Purchasers shall procure that immediately following Completion the
Estimated Inter-Company Debt is repaid in full.
4.10 Repayment of Inter-Company Loans
The Sellers shall procure that immediately following Completion the
Estimated Inter-Company Loans are repaid in full.
23
4.11 Purchasers' Funding
If the Purchasers, having used their best endeavours, have been unable
to obtain the necessary funding to satisfy the Purchase Price
substantially (as defined below) on the terms of the Purchasers'
Funding Termsheet on or before 31 July 2001 (or, if the Sellers have
advised the Purchasers or the Purchasers have advised the Sellers (as
appropriate) of a later date in accordance with Clause 4.4 (If
Conditions not fulfilled), on or before the date so advised by the
Sellers or the Purchasers (as appropriate)) the Purchasers shall,
subject to demonstrating to the reasonable satisfaction of the Sellers
that the Purchasers have used their best endeavours to obtain such
funding, be entitled to elect by notice to the Sellers' Guarantor to
terminate this Agreement (a "Termination Notice") (provided that in no
circumstances shall the Purchasers be entitled to issue a Termination
Notice other than on the later of 31 July 2001 and such date as the
Sellers or the Purchasers (as appropriate) may have advised in
accordance with Clause 4.4 (If conditions not fulfilled)). For the
avoidance of doubt, unless the Sellers agree otherwise, the Purchasers
shall be obliged to use their best endeavours aforesaid from the date
hereof until the earlier of the date upon which the necessary funding
to satisfy the Purchase Price has been obtained or a Termination Notice
is issued, unless prior to such date, this Agreement has been
terminated in accordance with Clause 4.4 (If conditions not fulfilled).
In the event the Purchasers issue a Termination Notice, this Agreement
shall terminate in accordance with the provisions of Clause 4.12
(Effect of Termination Notice) and Clause 4.13 (Payment to Sellers'
Guarantor) shall apply. For the purposes of this Clause 4.11
"substantially" shall mean on terms:
(a) as regards interest, not exceeding the interest rate specified
in the Purchaser's Funding Termsheet by more than 50 (fifty)
basis points; and
(b) as regards repayment, no less favourable than the repayment
schedule set out in the Purchasers' Funding Termsheet.
For the avoidance of doubt, the Purchasers' use of best endeavours
shall not require them to make formal approaches to any bank other than
Bank of America Securities LLC unless and until it reasonably believes
that it will not obtain funding from it substantially in accordance
with the Purchasers' Funding Termsheet.
24
4.12 Effect of Termination Notice
In the event the Purchasers issue a Termination Notice in accordance
with Clause 4.11 (Purchasers' Funding) all rights and obligations of
the parties under this Agreement (except under Clauses 4.13 (Payment to
Sellers' Guarantor), 12 (Announcements and Confidentiality) (other than
Clause 12.7), 15 (Costs) and 25 (Governing Law and Jurisdiction)) shall
terminate and no party shall have a claim against any other in respect
of any breaches of this Agreement before that termination.
4.13 Payment to Sellers' Guarantor
In the event that the Purchasers issue a Termination Notice in
accordance with Clause 4.11 (Purchasers' Funding), the Purchasers shall
(subject to Clause 4.14) forthwith pay to the Sellers' Guarantor the
sum of (E)10,000,000 by electronic transfer for same day value.
4.14 Purchasers' Banking Schedule
(1) On or before 29 June 2001 the Sellers' Guarantor shall provide to the
Purchasers a draft of the Purchasers' Banking Schedule completed with
the information required to be included therein, which information
shall be drawn up as at 22 June 2001.
(2) The Purchasers shall review the draft of the Purchaser's Banking
Schedule provided by the Sellers' Guarantor pursuant to Clause 4.14(1)
and shall provide their reasonable comments thereon to the Sellers'
Guarantor in writing on or before 3 July 2001.
(3) The Sellers' Guarantor shall consider any reasonable comments of the
Purchasers on the draft Purchasers' Banking Schedule and deliver a
revised version of the Purchaser's Banking Schedule taking reasonable
account of such comments on or before 9 July 2001.
(4) In the event that the Sellers' Guarantor does not provide the draft
Purchasers' Banking Schedule to the Purchasers by the time specified in
Clause 4.14(1), the time by which the Purchasers shall be required to
provide their reasonable comments thereon pursuant to Clause 4.14(2)
shall be extended by one day for each day by which the Sellers'
Guarantor is late in providing such draft.
(5) In the event that the Purchasers do not provide their reasonable
comments on the draft of the Purchasers' Banking Schedule to the
Sellers' Guarantor by the time specified in
25
Clause 4.14(2) (or as extended pursuant to Clause 4.14(4)), the
Purchasers shall be deemed to have approved the draft in the form
submitted to them.
(6) Subject to Clause 4.14(7), on or before 20 July 2001 the Sellers'
Guarantor shall provide to the Purchasers a further updated version of
the Purchasers' Banking Schedule completed with the information
required to be included therein, which information shall be drawn up as
at 11 July 2001.
(7) The Purchasers shall be entitled at any time prior to 20 July 2001 to
give written notice to the Sellers' Guarantor, requesting that they
delay the provision of the updated version of the Purchasers' Banking
Schedule pursuant to Clause 4.14(6), in which event the Purchaser shall
be entitled at any time prior to 23 July 2001 (or, if the Sellers have
advised the Purchasers or the Purchasers have advised the Sellers (as
appropriate) of a later date in accordance with Clause 4.4 (If
Conditions not fulfilled), the seventh day prior to such later date) to
give written notice to the Sellers' Guarantor requesting that an
updated version of the Purchasers' Banking Schedule be provided within
seven days of such notice, completed with the information required to
be included therein drawn up as at the date prior to the date of
receipt of such notice by the Sellers' Guarantor.
(8) In the event that the Sellers' Guarantor does not deliver the revised
Purchasers' Banking Schedule by the time specified in Clause 4.14(3) or
the further updated Purchasers' Banking Schedule by the time specified
in Clauses 4.14(6) or 4.14 (7) (as the case may be) and as a direct
consequence thereof:
(a) the Purchasers are delayed in their ability to obtain funding
in respect of the Purchase Price substantially on the terms of
the Purchasers' Funding Termsheet (as defined in Clause 4.11)
(having used their best endeavours so to do in accordance with
Clause 4.11), then the interest otherwise payable by the
Purchasers pursuant to Clauses 3.2 (Payment on Account) and
3.8 (Notification of Completion Net Debt and Completion
Transaction Costs) shall not be payable in respect of each day
by which the Sellers' Guarantor is late in providing the
revised Purchasers' Banking Schedule or the further updated
Purchasers' Banking Schedule (as appropriate); or
(b) the Purchasers are unable to obtain funding in respect of the
Purchase Price substantially on the terms of the Purchasers'
Funding Termsheet (as defined in Clause 4.11) (having used
their best endeavours so to do in accordance with Clause
4.11), where the revised and/or updated Purchasers' Banking
Schedule
26
is not provided by the Sellers' Guarantor within sixteen days
after the time specified in Clauses 4.14(3) or 4.14(6) or
4.14(7) (as appropriate) respectively and the Purchasers issue
a Termination Notice, the sum specified in Clause 4.13
(Payment to Sellers' Guarantor) shall not be payable.
(9) If at any time prior to Completion, the Sellers' Guarantor becomes
aware of any matter, fact or circumstance (save in respect of the
indebtedness of the Group) which, were it to be reflected in a further
updated Purchasers' Banking Schedule as at the date the Sellers'
Guarantor becomes aware of such matter, fact or circumstance, would
give rise to material variance from the information contained in the
updated Purchasers Banking Schedule prepared in accordance with Clauses
4.14(3) or 4.14(6) or 4.14(7) (as the case may be) (which shall mean a
variance equal to or greater than one million Euros), then the Sellers'
Guarantor shall notify the Purchasers of such matter, fact or
circumstance as soon as reasonably practicable after becoming aware of
the same.
(10) The Sellers' Guarantor shall prepare the Purchasers' Banking Schedule
and any other information which it is obliged to provide pursuant to
this Clause 4.14 in good faith. Subject thereto, neither the Sellers
nor the Sellers' Guarantor shall be liable in equity, contract or tort
or under the Misrepresentation Xxx 0000 or in any other way in respect
of the contents of the Purchasers' Banking Schedule being false,
inaccurate or incomplete (save in the case of fraud).
5. ANTI-TRUST NOTIFICATIONS
5.1 Filing responsibilities
The Purchasers shall be responsible for obtaining all such anti-trust
or competition confirmations or consents as may be necessary. The
Sellers shall join in and assist in such filings in so far only as the
Sellers are required to do so by applicable laws. The Purchasers shall
be responsible for all costs and legal expenses associated therewith
and shall fully indemnify the Sellers accordingly and keep the Sellers
fully indemnified.
5.2 Furnishing information
Each party shall furnish to the other such necessary information and
provide such assistance as the other may reasonably request in
connection with the preparation of any anti-trust or competition filing
or submission which is necessary under any applicable legislation,
rules or regulations. The parties shall keep each other fully
27
informed of the status of any communication with, and any enquiries or
requests for additional information from any applicable anti-trust or
competition authority and the Purchasers shall comply promptly with any
such enquiries or requests.
5.3 Purchasers' endeavours
The Purchasers and, subject to Clause 5.1 (Filing responsibilities),
the Sellers and the Sellers' Guarantor (to the extent that the Sellers
and the Sellers' Guarantor may provide assistance) shall use all
reasonable endeavours to obtain all anti-trust or competition
confirmations or consents required under any applicable legislation,
rules or regulations for the transaction contemplated in this
Agreement.
6. WARRANTIES
6.1 Warranties
As at the date of this Agreement, the Sellers warrant to the Purchasers
in terms of the Warranties.
6.2 Certain Warranties to be repeated at Completion
The Sellers warrant to the Purchasers in the terms of the Warranties
set out in Paragraphs 2.2, 2.4, 3, 5(h), 6.1, 7.2, 7.3, 7.4, 8, 15.2,
16, 18.1, 18.2, 18.3, 18.4, 18.5, 18.11(b), 18.11(c) and 21 only of
Part 1 of Schedule 4 (Warranties) as at Completion as if repeated by
reference to the facts and circumstances then existing.
6.3 Sellers to disclose breaches prior to Completion
The Sellers shall as soon as reasonably practicable after becoming
aware of the same disclose to the Purchasers in writing any matter,
event or circumstance which shall be discovered to have occurred or to
exist, or which shall happen or occur, between the date hereof and
prior to Completion which will cause or constitute a breach of any of
the Warranties set out in those Paragraphs of Schedule 4 (Warranties)
listed in Clause 6.2 (Certain Warranties to be repeated at Completion)
as at Completion by reference to facts and circumstances then existing
and such disclosure shall not (for the avoidance of doubt) affect the
liability of the Sellers for breach of any Warranty.
28
6.4 Limitations on claims
The liability of the Sellers under the Warranties or any other
provision of this Agreement shall (except in the case of fraud) be
limited as set out in Schedule 5 (Limitation on Claims).
6.5 Status of Warranties
Subject to Clause 6.6 (Certain Warranties specific), the Sellers agree
that each of the Warranties is separate from and independent of any
other Warranty and (except as otherwise provided in this Agreement)
shall not be limited by any other provision of this Agreement.
6.6 Certain Warranties specific
(1) The only Warranties given:
(a) in respect of the Environment are those set out in Paragraph
19 (Environment) of Part 1 of Schedule 4 (Warranties) and the
other Warranties shall be deemed not to be given in relation
to the Environment;
(b) in respect of employment matters excluding pensions but
including other benefits are those set out in Paragraph 15
(Employees) of Part 1, Paragraph 2 of Part 6, Paragraph 4 of
Part 8 and Paragraph 4 of Part 9, of Schedule 4 (Warranties)
and the other Warranties shall be deemed not to be given in
relation to employment matters; and
(c) in respect of the Properties are those set out in Paragraph 18
(Properties) of Part 1 of Schedule 4 (Warranties) and the
other Warranties shall be deemed not to be given in relation
to the Properties.
(d) in respect of Intellectual Property are those set out in
Paragraph 11 (Intellectual Property) of Part 1, Paragraphs 2
and 3 of Part 3, Paragraph 2 of Part 4, Paragraph 1 of Part 5,
Paragraph 1 of Part 6, Paragraph 1 of Part 7, Paragraphs 2 and
3 of Part 8 and Paragraph 3 of Part 9, of Schedule 4
(Warranties) and the other Warranties shall be deemed not to
be given in relation to Intellectual Property;
29
(e) in respect of pensions matters are those set out in Paragraph
16 (Pensions) of Part 1 of Schedule 4 (Warranties) and the
other Warranties shall be deemed not to be given in relation
to pensions matters;
(f) in respect of Taxation are those set out in Paragraph 17
(Taxation Matters) of Part 1, Paragraph 1 of Part 2, Paragraph
3 of Part 4, Paragraph 3 of Part 6, Paragraph 2 of Part 7,
Paragraph 5 of Part 8 and Paragraph 5 of Part 9, of Schedule 4
(Warranties) and the other Warranties shall be deemed not to
be given in relation to Taxation; and
(g) in respect of competition and anti-trust law matters are those
set out in Paragraph 21 (Competition) of Part 1, Paragraph 4
of Part 6, Paragraph 3 of Part 7, Paragraph 6 of Part 8 and
Paragraph 6 of Part 9, of Schedule 4 (Warranties) and the
other Warranties shall be deemed not to be given in relation
to competition and anti-trust law matters.
(2) Nothing contained in Clause 6.6 shall operate to qualify, limit or
disapply the Warranties given in relation to the Consolidated Accounts
and the Management Accounts, being those set out in Paragraph 4 of Part
1 of Schedule 4 (Warranties) from any matter to which they may relate.
6.7 No right of Purchasers to rescind
The sole remedy of the Purchasers for breach of the Warranties shall be
damages and the Purchasers acknowledge that they shall have no right to
rescind this Agreement in any circumstances and the Purchasers
irrevocably waive any other remedies they may have in relation to a
breach of the Warranties.
6.8 Meaning of "so far as the Sellers are aware"
If any of the Warranties are expressed to be given "so far as the
Sellers are aware" or "to the best of the knowledge, information and
belief of the Seller", or words to that effect the Sellers shall be
deemed only to have knowledge of the facts, matters and circumstances:
(a) disclosed by Xxxx Xxxxxx, Xxx Nieuwenhuijzen, Johan Biskop,
Xxxxxx Xxxxxxxxx, Dion Stuifmeel, Reino Winnsater and
Per-Anders Scherlund, in response to the Sellers' due and
careful enquiries of such persons in respect of the Warranties
which the Sellers have made for these purposes; and/or
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(b) of which Xxxxxxx Xxxxxx and Xxxxx Xxx have actual knowledge
and:
(i) in the case of Paragraphs 10.7, 19.5, 19.6 and 21
only of Part 1 of Schedule 4 (Warranties), of which
Xxxx Xxxxxx has actual knowledge; and
(ii) in the case of Paragraph 18 only of Part 1 of
Schedule 4 (Warranties), of which Xxxx Xxxxxx has
actual knowledge; and
the Sellers shall be deemed not to have any other actual, imputed or
constructive knowledge.
6.9 Basis of recovery for breach of certain Warranties
(1) Subject to Schedule 5, in the event of any breach of any of the
Warranties set out in Paragraphs 17 (Taxation matters), 19
(Environment) and 12.11 (Norba Agreement) only of Part 1 of Schedule 4
(Warranties) the Sellers shall, on demand, pay to the Purchasers an
amount equal to the aggregate of all Losses incurred by any member of
the Group and/or any member of the Purchasers' Group directly in
connection with or in consequence of or in respect of the circumstances
giving rise to the breach of that Warranty.
(2) Subject to Schedule 5 (Limitations on Claims), in addition, in the
event of any breach of the Warranties set out in Paragraph 21
(Competition) of Part 1 of Schedule 4 (Warranties), the Sellers shall,
on demand, pay to the Purchasers an amount equal to the aggregate of:
(a) any fines and/or penalties imposed by any governmental or
regulatory authority on any member of the Group and/or any
member of the Purchasers' Group; or
(b) those Losses incurred by any member of the Group and/or any
member of the Purchasers' Group as a result of claims, actions
or proceedings brought against any member of the Purchasers'
Group and/or any member of the Group by a third party customer
of any member of the Group;
directly in connection with or in consequence of or in respect of the
circumstances giving rise to the breach of that Warranty. For the
avoidance of doubt, the Sellers' liability in respect of any breach of
the Warranties set out in Paragraph 21 as aforesaid shall be limited to
Purchaser's Group's rights of recovery under this Clause 6.9.
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6.10 No claim against employees
The Sellers and the Sellers' Guarantor shall not, and shall procure
that no member of the Sellers' Group shall make any claim or demand or
exercise any other right or remedy which the Sellers or the Sellers'
Guarantor may have against any of the employees of the Companies in
connection with this transaction (including the provision of
information contained or reflected in the Disclosure Letter), save in
the case of fraud committed by the relevant employee or if and insofar
as the Purchasers may in their absolute discretion otherwise agree in
writing and any recovery made by any of the Sellers or the Sellers'
Guarantor consequent on any breach of this Clause 6.10 shall (save in
the case of fraud) be held on trust with the Purchasers.
6.11 Assignment of debts
In the event that the Purchasers bring any claim against the Sellers
for breach of Paragraph 6.5 (Debts Collectable) of Part 1, Schedule 4
(Warranties), upon payment in full by the Sellers of the amount agreed
by the Sellers and the Purchasers or adjudged by a court of competent
jurisdiction to be payable in each case in satisfaction or settlement
of such claim, at the election of the Sellers the Purchasers shall
deliver a legal assignment of the debt or debts giving rise to such
claim in such form as the Sellers may reasonably require in favour of
Sellers' Guarantor or as the Sellers' Guarantor may direct.
6.12 The parties hereto hereby agree and acknowledge to each other that:
(a) the Disclosed Environmental Matters have been disclosed to the
Purchasers for the purposes of information only;
(b) notwithstanding Clause 10, paragraph 3(f) of Schedule 5 and
the provisions of the Disclosure Letter (but without prejudice
to the other provisions of Schedule 5), disclosure of the
Disclosed Environmental Matters shall not in any way
whatsoever limit the ability of the Purchasers to claim under
the Warranties in respect of the Disclosed Environmental
Matters or limit or otherwise affect the amount of damages
that the Purchasers may recover in respect of any such claims;
(c) the Purchasers, in agreeing to the Purchase Price, did not
take into account any Losses that may arise as a consequence
of the Disclosed Environmental Matters being in excess of the
amount set out in paragraph 3(c) of Schedule 5
32
and the Purchasers have agreed that in respect of a claim
under the Environmental Warranties relating to the Disclosed
Environmental Matters their rights of recovery in respect
thereof shall be limited in accordance with paragraph 3(c) of
Schedule 5.
7. PURCHASERS' AND PURCHASERS' GUARANTOR'S WARRANTIES AND UNDERTAKINGS
7.1 Purchasers' and Purchasers' Guarantor's warranties
Each of the Purchasers and the Purchasers' Guarantor warrants and
represents to the Sellers and the Sellers' Guarantor that:
(a) it has full power to enter into and perform this Agreement and
the Deed of Covenant (as appropriate) and this Agreement and
the Deed of Covenant (as appropriate) each constitute valid
and binding obligations on the Purchasers and the Purchasers'
Guarantor in accordance with their respective terms;
(b) it is entering into this Agreement on its own behalf and not
on behalf of any other person;
(c) the execution and delivery of, and the performance by it of
its obligations under, this Agreement and the Deed of Covenant
(as appropriate) will not:
(i) result in a breach of any provision of its memorandum
and articles of association or other statutes and
bye-laws; or
(ii) result in a breach of any order, judgment or decree
of any court or governmental agency to which the
Purchasers or the Purchasers' Guarantor is a party or
by which the Purchasers or the Purchasers' Guarantor
is bound;
(d) all consents, permissions, approvals and agreements of its
shareholders or any other third parties which are necessary
for the Purchasers and the Purchasers' Guarantor to obtain in
order to enter into and perform this Agreement, the Tax Deed
and the Deed of Covenant (as appropriate) in accordance with
their respective terms (subject to the provision of funding in
accordance with the terms of the Purchasers' Funding Term
Sheet) have been unconditionally obtained in writing and have
been disclosed in writing to the other parties to this
Agreement;
33
(e) neither it nor its respective, directors, officers, employees,
agents or advisors is aware of any facts or matters which
would or may prevent the Purchasers from obtaining the
necessary funding to satisfy the Purchase Price on or before
Completion on the basis of the Purchasers' Funding Term Sheet.
7.2 Purchasers' undertakings
The Purchasers undertake to the Sellers that:
(a) the terms and conditions of employment and other benefits
enjoyed by the employees of the Group (details of which are
set out in the Disclosure Letter) in the period of 12 months
after Completion will be no less favourable taken as a whole
than those enjoyed by them prior to the Completion Date (but
without prejudice to any improvement to salaries, wages or
conditions agreed in accordance with the Purchasers' normal
review procedures); and
(b) all applicable provisions of relevant collective bargaining
agreements and agreements or arrangements with any trade union
or works council relating to such employees shall be complied
with in the period of 12 months after Completion, unless all
the parties to such agreements or arrangements agree to alter
the terms of such agreements or arrangements.
8. UK PENSIONS
The provisions of Schedule 7 (UK Pensions) shall take effect as if set
out in this Clause 8 (UK Pensions).
9. Group and Sellers' Guarantees
9.1 Release of Sellers' Guarantees
Each of the Purchasers undertakes to the Sellers (for themselves and as
trustee for any member of the Sellers' Group) that it and will procure
that all members of the Purchasers' Group will use all reasonable
endeavours to procure the release on or within 14 days after Completion
of the Sellers or any member of the Sellers' Group from any obligations
or liabilities they may have in respect of the Sellers' Guarantees and
any other guarantee or indemnity given for the benefit of any member of
the Group and pending that release shall indemnify and keep the Sellers
or any member of the Sellers' Group indemnified against any liability
arising under the Sellers' Guarantees and those other guarantees and
indemnities.
34
9.2 Release of Group Guarantees
Each of the Sellers undertakes to the Purchasers (for themselves and as
trustee for any member of the Purchasers' Group) that it will use all
reasonable endeavours to procure the release on or within 14 days after
Completion of any member of the Group from any obligations or
liabilities they may have in respect of the Group Guarantees and any
other guarantee or indemnity given for the benefit of any member of the
Sellers' Group and pending that release shall indemnify and keep the
Purchasers or any member of the Purchasers' Group indemnified against
any liability arising under the Group Guarantees and those other
guarantees and indemnities.
10. NORBA ACQUISITION AGREEMENT
10.1 Norba Warranties
Without prejudice to the rights of the Purchaser to make any claim in
respect of such of the Warranties as are set out in Schedule 4 (subject
only to any time or other limits set out in Schedule 5 (Limitations on
Claims) and for the avoidance of doubt nothing in this Clause 10 shall
operate to alter such time or other limits as are set out in Schedule
5), Xxxxxx Duffryn (International) Limited warrants to the Purchasers
in the terms of the Norba Warranties such that the liability of Xxxxxx
Duffryn (International) Limited to the Purchasers in relation thereto
shall be deemed to be that which it would have been had such warranties
been given by Xxxxxx Duffryn (International) Limited on the date of the
execution of the Norba Acquisition Agreement, provided that:
(a) the Purchasers shall only be entitled to bring a claim under
this Clause 10.1 (Norba Warranties) for so long as Xxxxxx
Duffryn (International) Limited shall be entitled to enforce
recovery from Partek Cargotec AB in respect of breach of the
relevant Norba Warranty;
(b) in the event that any matter, event or circumstances
constitutes a breach of this Clause 10.1 (Norba Warranties)
and any other of the Warranties, the Purchasers shall bring
any claim first and to the fullest extent possible pursuant to
this Clause 10.1 (Norba Warranties) (and for the avoidance of
doubt it shall be permissible, in relation to any claim, for
the Purchasers to plead or rely upon a breach of the
Warranties as a further and alternative cause of action);
35
(c) the Purchasers shall render or cause to be rendered to Xxxxxx
Duffryn (International) Limited all assistance as Xxxxxx
Duffryn (International) Limited may reasonably require
(including providing access to information and to employees
(save where the Purchasers reasonably believe that there is a
conflict of interest in any relevant employee providing such
services as a consequence of the nature of the services to be
provided by that employee conflicting with the subject matter
of a notified claim for breach of any of the Warranties by the
Sellers, save where such conflict arises solely as a result of
the Purchasers having a claim against the Sellers under the
Warranties), of the Purchasers or the relevant Company or
Subsidiary or any other member of the Purchasers' Group) for
the purpose of enabling Xxxxxx Duffryn (International) Limited
to enforce recovery by Xxxxxx Duffryn (International) Limited
from Partek Cargotec AB in respect of any breach of any of the
Norba Warranties provided that the Purchasers shall be
entitled to charge a reasonable fee for the time and services
of such employees so provided;
(d) without prejudice to Clause 10.1(e) below, whether any matter,
event or circumstance constitutes a breach of this Clause 10.1
(Norba Warranties) and the amount recoverable for such breach
shall each be determined in accordance with:
(i) the second sentence of article 10.2 of the Norba
Acquisition Agreement; and
(ii) Swedish law
but otherwise subject to Clauses 25.2 and 25.3 save that the
Purchasers shall have the right to institute any proceedings
in Sweden in relation to any such determination subject to the
provisions of the Norba Acquisition Agreement; and
(e) subject to Clauses 10.1(a) and (b) above, the provisions of
Schedule 5 (Limitation on Claims) shall apply to the liability
of Xxxxxx Duffryn (International) Limited pursuant to this
Clause 10.1 (Norba Warranties).
10.2 Performance and enjoyment of Norba Acquisition Agreement
(1) Without prejudice to any other rights of the Purchasers under this
Agreement but subject to the provisions of Clause 10.1 (Norba
Warranties), in relation to the
36
provisions of the Norba Acquisition Agreement (other than those
relating to the Norba Warranties and the benefit of any sums payable by
Partek Cargotec AB pursuant to articles 10.4.1, 10.4.2, 10.4.3, 13.3
and 14.4.5 of the Norba Acquisition Agreement):
(a) each of the Sellers shall procure that Xxxxxx Duffryn
(International) Limited shall hold the Norba Acquisition
Agreement and any monies, goods or other benefits received
under the Norba Acquisition Agreement (other than monies,
goods or other benefits due prior to Completion or in respect
of rights accruing or claims made prior to Completion) as
trustee for the Purchasers and shall, as soon as reasonably
practicable upon receipt of the same, account for and pay or
deliver to the Purchasers all those monies, goods and other
benefits;
(b) the Purchasers shall (if and to the extent sub-contracting or
agency is permissible under the Norba Acquisition Agreement)
as the Xxxxxx Duffryn (International) Limited's sub-contractor
or agent perform on behalf of Xxxxxx Duffryn (International)
Limited (but at the Purchasers' expense) all the obligations
of Xxxxxx Duffryn (International) Limited arising after
Completion; and
(c) the Purchasers shall indemnify the Sellers against or
reimburse the Sellers for any payment required to be made or
other liability incurred by it or any other member of the
Sellers' Group in relation to the Norba Acquisition Agreement
after the Completion Date except to the extent that the
payment or liability shall arise wholly or partly as a result
of the failure by Xxxxxx Duffryn (International) Limited duly
to perform and comply with the terms of the Norba Acquisition
Agreement prior to the Completion Date.
(2) The Purchasers undertake that it shall, at the Purchasers' cost, carry
out and complete for their own account the outstanding obligations and
liabilities created by or arising under the provisions of the Norba
Acquisition Agreement (other than those relating to the Norba
Warranties) from Completion.
(3) Neither this Agreement nor any action carried out in pursuance of it
shall constitute an assignment or attempted assignment of the Norba
Acquisition Agreement without the consent of Partek Cargotec AB if that
assignment or attempted assignment would constitute a breach of the
Norba Acquisition Agreement except to the extent that the consent is
obtained.
37
(4) To the extent that performance and discharge by the Purchasers of the
obligations and liabilities arising under the provisions of the Norba
Acquisition Agreement referred to in Clause 10.2(1) (whether as agent
or subcontractor or otherwise) would constitute a breach of the express
or implied terms of the Norba Acquisition Agreement the Sellers shall
procure that Xxxxxx Duffryn (International) Limited shall continue to
perform and discharge the relevant provisions of the Norba Acquisition
Agreement to the extent necessary to avoid any such breach provided
that:
(a) the Sellers shall procure that Xxxxxx Duffryn (International)
Limited shall exercise its rights in respect of the Norba
Acquisition Agreement as the Purchasers may reasonably direct
or approve and shall account to the Purchasers for any sums
arising under it (other than sums due prior to Completion or
in respect of rights accruing or claims made prior to
Completion) and shall to the extent permitted under the terms
of it be deemed to have granted the Purchasers a licence free
of charge to exercise all rights of Xxxxxx Duffryn
(International) Limited under it; and
(b) Xxxxxx Duffryn (International) Limited shall be deemed to hold
the benefit of the Norba Acquisition Agreement (other than in
respect of any monies, goods or other benefits due prior to
Completion or in respect of rights accruing or claims made
prior to Completion) on trust for the Purchasers (or as they
may direct) and that benefit will be as soon as reasonably
practicable be paid over to the Purchasers; and
(c) the Purchasers shall reimburse to the Sellers any costs and
expenses incurred by them or any other member of the Sellers'
Group after the Completion Date and shall on behalf of Xxxxxx
Duffryn (International) Limited discharge any liabilities in
each case arising as a result of that performance and
discharge by Xxxxxx Duffryn (International) Limited and shall
provide all facilities, assistance and information to the
Sellers and any other member of the Sellers' Group free of
charge for that purpose (including providing the services of
any relevant employees (save where the Purchasers reasonably
believe that there is a conflict of interest in any relevant
employee providing such services as a consequence of the
nature of the services to be provided by that employee
conflicting with the subject matter of a notified claim for
breach of any of the Warranties by the Sellers), and the use
of any relevant assets of any member of the Purchasers' Group)
and shall indemnify the Sellers against all Losses of any
member of the Sellers' Group in connection with the same.
38
11. SPECIFIC INDEMNITIES
11.1 Xxxxxx Infringement Claim
(1) The Sellers undertake to the Purchasers to indemnify the Purchasers or
any members of the Purchasers' Group and/or any member of the Group and
keep them indemnified, against any liability arising out of the claims
of patent infringement set out in the letter dated 7 July 1999 from
Xxxxxx-Xxxxxx GmbH ("Xxxxxx") to Geesink B.V. and the letter dated 18
April 2001 from Landwell (Xxxxxx'x lawyers) to De Brauw Blackstone
Westbroek (Geesink B.V.'s lawyers) (collectively, the "Xxxxxx
Infringement Claim"), subject to the terms of this Clause 11.1.
(2) The agreement to indemnify pursuant to this Clause 11.1 shall relate
only to the following:
(a) reasonable legal costs incurred by any member of the
Purchasers' Group and/or any member of the Group in defending
and/or attempting to settle any proceedings brought against
any of them by Xxxxxx, to the extent that these relate to the
Xxxxxx Infringement Claim; and
(b) either but not both of:
(i) if a binding judicial decision is made against any
member of the Purchasers' Group and/or any member of
the Group in relation to the Xxxxxx Infringement
Claim:
(aa) any damages awarded under that decision, but
only to the extent that these are referable
to the period ending on 31 December 2001
(and in the absence of any apportionment of
such damages, they shall be deemed to be
apportioned so as to reflect the number of
products sold in the respective periods
covered by the decision before and after 31
December 2001 and which are found to be
infringing); and
(bb) any costs awarded against any member of the
Purchasers' Group and/or any member of the
Group under that decision; or
(ii) sums paid to Xxxxxx by any member of the Purchasers'
Group and/or any member of the Group in final
settlement of the Xxxxxx Infringement Claim but
39
(aa) up to an aggregate limit (including legal
costs payable under paragraph (a) above)
of (E)1 million (one million euros); and
(bb) so that, if the total amounts agreed to be
paid in settlement (including legal costs
payable under paragraph (a) above) are less
than (E)1 million (one million euros), the
Sellers shall in addition pay to the
Purchasers' Guarantor for the account of the
Purchasers 30% (thirty per cent) of the
amount of that shortfall.
(3) Only the following paragraphs of Schedule 5 (Limitations on Claims)
shall apply to the agreement to indemnify pursuant to this Clause 11.1,
namely Paragraphs 1 (Notification), 4 (Maximum Liability), 5 (No Double
Recovery) 6 (Recovery from Third Parties) 7 (Conduct of Claims) and 8
(Duty to Mitigate).
(4) Notwithstanding any other provision of this Agreement, the agreement to
indemnify pursuant to this Clause 11.1 shall be the sole remedy of the
Purchasers and all members of the Purchasers' Group and/or any member
of the Group against the Sellers in respect of the Xxxxxx Infringement
Claim.
11.2 Swedish Charges Certificates
(1) For the purposes of this Clause 11.2 "Lost Certificates" means the
floating charge certificates of Norba AB numbered 770209.1.84 (SEK 1
million), 770209.1.87 (SEK 1 million), 770209.1.88 (SEK 1 million),
780322.6.22 (SEK 1 million), 780322.6.24 (SEK 1 million), 780322.6.26
(SEK 1 million), 780322.6.28 (SEK 1 million), 780322.6.30 (SEK 1
million), 810506.10.77 (SEK 3 million) and 820630.22.93 (SEK 3
million).
(2) The Sellers undertake to the Purchasers to indemnify and keep
indemnified the Purchasers or any members of the Purchasers' Group
and/or any member of the Group against all and any actions, claims,
demands, and reasonable costs, charges and expenses which may be
incurred by any member of the Purchasers' Group and/or any member of
the Group in relation to:
(a) the cancellation of the Lost Certificates; or
(b) any third party in whose favour the Lost Certificates may have
been pledged as at the date of Completion seeking to enforce
the security constituted thereby.
40
(3) No claim for indemnification pursuant to this Clause 11.2 shall be
brought after the expiry of a period of five (5) years commencing on
the Completion Date, provided that this Clause 11.2(3) shall not apply
for so long as the Purchasers comply with their obligations under the
first sentence of Clause 11.2(5).
(4) Only the following paragraphs of Schedule 5 (Limitations on Claims)
shall apply to the agreement to indemnify pursuant to this Clause 11.2,
namely Paragraphs 1 (Notification), 4 (Maximum Liability), 5 (No Double
Recovery) 6 (Recovery from Third Parties) 7 (Conduct of Claims) and 8
(Duty to Mitigate).
(5) Without prejudice to the provisions of Clause 11.2(4), the Purchasers
shall procure that Norba AB shall take all appropriate steps to cancel
the Lost Certificates as soon as practicable pursuant to the
proceedings therefor initiated prior to the date of this Agreement
before the Malmo City Court. The Purchasers shall keep the Sellers
informed on a timely basis as to the steps which are being taken in
connection with such cancellation.
12. ANNOUNCEMENTS AND CONFIDENTIALITY
12.1 No announcements without prior approval
Subject to Clause 12.2 (Announcement exceptions), the parties mutually
agree that no press or other public announcements (whether to
shareholders, employees, customers, suppliers or otherwise) shall be
made or sent out by any of them in respect of the sale and purchase of
the Companies or the Subsidiaries or any ancillary matter without the
text of the announcement receiving the prior written approval of the
Purchasers' Guarantor (in the case of the Sellers and the Sellers'
Guarantor) or the Sellers' Guarantor (in the case of the Purchasers and
the Purchasers' Guarantor) (that approval not to be unreasonably
withheld or delayed).
12.2 Announcement exceptions
Any party may make or send out any press or public announcement to the
extent the announcement is:
(a) required by the law of any relevant jurisdiction;
(b) required by any securities exchange or regulatory or
governmental body to which any of the parties is subject or
submits, wherever situated, including (without limitation) the
London Stock Exchange, the UK Listing Authority,
41
the Takeover Panel, the Securities Exchange Commission or NASD
whether or not the requirement for information has the force
of law
in which case, the announcement shall only be made or sent out after
consultation with (and after taking into account the reasonable
requirements of) the Purchasers' Guarantor (in the case of the Sellers
and the Sellers' Guarantor) or the Sellers' Guarantor (in the case of
the Purchasers and the Purchasers' Guarantor) as to the content of the
announcement.
12.3 Confidentiality
Subject to Clause 12.1 (No announcements without prior approval), each
of the parties shall treat as strictly confidential all information
received or obtained as a result of entering into or performing this
Agreement which relates to:
(a) the provisions of this Agreement or the other documents
referred to in this Agreement;
(b) the negotiations relating to this Agreement; or
(c) any of the other parties.
12.4 Confidentiality exceptions
Any party may disclose information referred to in Clause 12.3
(Confidentiality) which would otherwise be confidential if and to the
extent the disclosure is:
(a) required by the law of any relevant jurisdiction;
(b) properly required by any securities exchange or regulatory or
governmental body to which any party is subject or reasonably
submits, wherever situated, including (without limitation) the
London Stock Exchange, the UK Listing Authority, the Takeover
Panel, the Securities Exchange Commission or NASD;
(c) required to vest in that party the full benefit of this
Agreement in any of the parties;
(d) disclosed to the professional advisers, auditors or bankers of
that party or any member of the Sellers' Group (in the case of
the Sellers and the Sellers'
42
Guarantor) or any member of the Purchasers' Group (in the case
of the Purchasers and the Purchasers' Guarantor);
(e) disclosed to the officers or employees of that party or any
member of the Sellers' Group (in the case of the Sellers and
the Sellers' Guarantor) or any member of the Purchasers' Group
(in the case of the Purchasers and the Purchasers' Guarantor)
who need to know the information for the purposes of the
transactions effected or contemplated by this Agreement and
subject to the condition that the party making the disclosure
shall procure that those persons comply with Clause 12.3
(Confidentiality) as if they were parties to this Agreement;
(f) of information that has already come into the public domain
through no fault of that party; or
(g) of information of the kind referred to in Clause 12.3(c) which
is already lawfully in the possession of that party as
evidenced by its or its professional advisers' written
records;
(h) approved by the Sellers' Guarantor or the Purchasers'
Guarantor (as the case may be) having given prior written
approval to the disclosure, (that approval not to be
unreasonably withheld or delayed)
provided that any information disclosed pursuant to paragraph (a) or
(b) of this Clause 12.4 (Confidentiality exceptions) shall be disclosed
only after notice to the Sellers' Guarantor or the Purchasers'
Guarantor (as the case may be) and the disclosing party shall
co-operate with the Sellers' Guarantor or the Purchasers' Guarantor (as
the case may be) regarding the manner of that disclosure or any action
which the Sellers' Guarantor or the Purchasers' Guarantor (as the case
may be) may elect to take to challenge legally the validity of that
requirement.
12.5 No limit in time
The restrictions contained in this Clause 12 shall continue to apply
for three years after Completion.
12.6 No prejudice to Confidentiality Agreement
This Clause 12 (Announcements and Confidentiality) shall be without
prejudice to the provisions of (including any termination dates
provided therein) the Confidentiality
43
Agreement, which shall be deemed for the purposes of this Agreement to
continue in full force and effect despite Completion.
12.7 Continuance of Exclusivity Agreement
The provisions of the Exclusivity Agreement shall be deemed to continue
to apply (notwithstanding their prior expiry) from the date of this
Agreement until the earlier of Completion and 31 July 2001 (or such
later date as the Sellers or the Purchasers (as appropriate) may have
advised the Purchasers or the Sellers (as appropriate) in accordance
with Clause 4.4 (If conditions not fulfilled)).
13. TAX LOSSES AND FISCAL UNITY
13.1 Norba Limited losses
(1) The Purchasers undertake to the Sellers that they shall take all
reasonable steps permitted by law to procure that Norba Limited shall
surrender to the Sellers' Guarantor or as the Sellers' Guarantor may
direct (but other than to Geesink Norba Limited) by way of group relief
an amount no greater than the value of all sums or losses capable of
being so surrendered by Norba Limited to the extent permitted by law
and required by the Sellers in respect of the accounting period ending
on the Balance Sheet Date (the "Norba Tax Losses"). The Sellers'
Guarantor agrees it shall pay or procure the payment to Norba Limited
of a sum equal to 30% of the amount of the Norba Tax Losses less an
amount equal to the aggregate of sums already paid to Norba Limited on
account of the Norba Tax Losses. Payment under this Clause 13.1 shall
be made on the date or, if the Corporation Tax (Instalment Payments)
Regulations 1998 apply, the dates, on which the tax liability of the
relevant company is, or but for the surrender would have been, due and
payable.
(2) No surrender shall take place under this Clause 13.1 if the surrender
would give rise to a liability to Taxation of Norba Limited for which
the Purchaser could make a claim under the Tax Deed.
13.2 Geesink Norba Limited profits
(1) The Purchasers undertake to the Sellers' Guarantor that they shall take
all reasonable steps permitted by law to procure that Geesink Norba
Limited shall accept a surrender by way of group relief of losses to
the extent permitted by law (but other than from Norba Limited) of an
amount no greater than such of its profits chargeable to corporation
tax for the period ending on the Balance Sheet Date which are capable
44
of being relieved by such losses (the "Geesink Norba Profits") and
shall procure that Geesink Norba Limited shall pay to the Sellers'
Guarantor, or as the Sellers' Guarantor may direct, when the
corporation tax on the Geesink Norba Profits would otherwise have
payable an amount equal to 30% of the sum so surrendered less an amount
equal to the aggregate of sums already paid by Geesink Norba Limited to
the Seller (or as directed by the Sellers' Guarantor) on account of the
liability to corporation tax in respect of the Geesink Norba Profits.
Payment under this Clause 13.2 shall be made on the date or, if the
Corporation Tax (Instalment Payments) Regulations 1998 apply, the dates
on which the tax liability of Geesink Norba Limited is or but for the
surrender would have been due and payable.
(2) The Purchasers shall and shall procure that each of Geesink Norba
Limited and Norba Limited (at the cost of the Sellers' Guarantor) signs
and submits to the relevant Taxing Authority all such notices of
consent to surrender and all such other documents and returns as may be
necessary to ensure that full effect is given to the provisions of this
Clause 13.2.
13.3 Disputes
If any dispute arises under this Clause 13.1 or 13.2 as to the amount
of any surrender that may be permitted by law, such dispute shall be
referred for determination to a firm of independent chartered
accountants agreed between the Sellers' Guarantor and the Purchasers
and failing such agreement a firm of independent chartered accountants
shall be nominated by the President for the time being of the Institute
of Chartered Accountants of England and Wales (the "Expert") who in
making such determination shall act as expert and not arbitrator and
whose decision shall be final and binding on the parties thereto
subject to any challenge by a Taxing Authority. The Expert may make
such enquiries as he shall think fit in order to make such
determination and shall also determine how the costs of obtaining his
opinion should be paid and borne by the parties.
13.4 Denial of Surrenders
To the extent that the surrenders of group relief pursuant to Clause
13.1 or 13.2 are subsequently denied or varied by a Tax Authority,
adjustments shall be made to the payments made for the surrender of the
group relief as appropriate and the sum by which any payment exceeds
the amount of Tax relieved shall be repaid as appropriate.
45
13.5 Fiscal Unity
(1) If requested by Xxxxxx Duffryn Holdings BV in writing, there shall be
paid to Xxxxxx Duffryn Holdings BV by Geesink Group BV and those of its
subsidiaries which were included in the Xxxxxx Duffryn Holdings BV
Dutch Fiscal Unity (the "Fiscal Unity Subsidiaries"), an amount equal
to the Dutch tax due by Geesink Group BV and the Fiscal Unity
Subsidiaries in respect of periods ending on or before the Balance
Sheet Date.
(2) The request from Xxxxxx Duffryn Holdings BV shall set out (i) the
amounts due from each of Geesink Group BV and each of the Fiscal Unity
Subsidiaries and (ii) the date on which each such amount is due to be
paid to the relevant Taxing Authority.
(3) Payment shall be made on the later of (i) 15 days following the written
request by Xxxxxx Duffryn Holdings BV and (ii) 3 days prior to the date
or dates on which Xxxxxx Duffryn Holdings BV is due to account for such
amounts of tax to the Dutch Taxing Authorities.
(4) Xxxxxx Duffryn Holdings BV warrants that all amounts received by it
pursuant to this clause will be paid immediately to the relevant Taxing
Authority on behalf of Geesink Group BV and the Fiscal Unity
Subsidiaries in payment of the relevant tax liabilities of Geesink
Group BV and the Fiscal Unity Subsidiaries for periods ending on or
before the Balance Sheet Date (and in the same proportions as payment
is made to Xxxxxx Duffryn Holdings BV under this clause).
(5) The parties acknowledge that (i) no payment is required to be made
under Clause 13.1 if and to the extent that a payment is required to be
made by the Sellers under the Tax Deed and any payment due under Clause
13.1 shall be set against any payment then due from the Sellers under
the Tax Deed and (ii) in each such case where payment is not required
to be made under Clause 13.1, Xxxxxx Duffryn Holdings BV will discharge
the relevant payments of tax on behalf of Geesink Group BV and the
Fiscal Unity Subsidiaries, as appropriate, within applicable time
limits.
(6) Xxxxxx Duffryn Holdings BV will immediately on receipt from the Dutch
Taxing Authorities pay to Oshkosh Group BV (as agent for Geesink Group
BV and the Fiscal Unity Subsidiaries) all repayments of Tax received by
Xxxxxx Duffryn Holdings BV from the Dutch Taxing Authorities in respect
of instalments of Tax paid by Xxxxxx Duffryn Holdings BV on behalf of
Geesink Group BV and the Fiscal Unity Subsidiaries in respect of the
year to March 2002, if and to the extent that such
46
instalment payments of Tax by Xxxxxx Duffryn Holdings BV on behalf of
Geesink Group BV and the Fiscal Unity Subsidiaries have been funded by
Geesink Group BV and the Fiscal Unity Subsidiaries. Xxxxxx Duffryn
Holdings BV agrees to use its reasonable endeavours to obtain such
repayment of all such instalments from the Dutch Taxing Authorities as
soon as possible following Completion.
14. GUARANTEES
14.1 Guarantee by Sellers' Guarantor
(1) The Sellers' Guarantor unconditionally and irrevocably undertakes to
the Purchasers:
(a) to procure that the Sellers shall promptly perform and
discharge all present and future obligations and liabilities
of the Sellers (referred to in this Clause 14.1 as the
"Sellers' Guaranteed Obligations") under this Agreement; and
(b) that, if the Sellers fail to do so, it will itself forthwith
(on demand) perform and discharge the Sellers' Guaranteed
Obligations and indemnify the Purchasers against all losses,
liabilities, claims, demands, costs, charges and expenses
directly suffered or incurred by or made against the
Purchasers in connection with or arising out of such failure.
(2) The liability of the Sellers' Guarantor under this Clause 14.1 shall be
that of principal obligor and not merely as surety and shall not be
limited, discharged or otherwise affected by any time, indulgence,
waiver or concession granted by the Purchasers to the Sellers, by the
invalidity, unenforceability or frustration of any of the Sellers'
Guaranteed Obligations, by any lack of capacity or lack or misuse of
authority on the part of the Sellers or its officers, by the
liquidation, administration or dissolution of the Sellers or the
disclaimer of any of the Sellers' Guaranteed Obligations by any
liquidator, by any variation or termination of any of the Sellers'
Guaranteed Obligations or by any other fact or circumstance which would
or might (but for this Clause 14.1) limit, discharge or otherwise
affect the liability of the Sellers' Guarantor.
(3) The obligations of the Sellers' Guarantor under this Clause 14.1 are
continuing obligations and shall remain in full force and effect so
long as any of the Sellers' Guaranteed Obligations has yet to be fully
performed or discharged.
(4) Until all of the Sellers' Guaranteed Obligations have been fully
performed and discharged the Sellers' Guarantor shall not, without the
prior written consent of the Purchasers:
47
(a) exercise as against the Sellers, in respect of any amount
previously paid by the Sellers' Guarantor under this
guarantee, any right of subrogation or any other right or
remedy which the Sellers' Guarantor may have in respect of the
same; or
(b) prove in any liquidation of the Sellers in competition with
the Purchasers for any sums owing to the Sellers' Guarantor by
the Sellers.
(5) The obligations of the Sellers' Guarantor under this Clause shall be in
addition to and shall not merge with or be prejudiced by any collateral
or other security now or in future held by the Purchasers.
14.2 Guarantee by Purchasers' Guarantor
(1) The Purchasers' Guarantor unconditionally and irrevocably undertakes to
the Sellers:
(a) to procure that the Purchasers shall promptly perform and
discharge all present and future obligations and liabilities
of the Purchasers (referred to in this Clause 14.2 as the
"Purchasers' Guaranteed Obligations") under this Agreement;
and
(b) that, if the Purchasers fail to do so, it will itself
forthwith (on demand) perform and discharge the Purchasers'
Guaranteed Obligations and indemnify the Sellers against all
losses, liabilities, claims, demands, costs, charges and
expenses directly suffered or incurred by or made against the
Sellers in connection with or arising out of such failure.
(2) The liability of the Purchasers' Guarantor under this Clause 14.2 shall
be that of principal obligor and not merely as surety and shall not be
limited, discharged or otherwise affected by any time, indulgence,
waiver or concession granted by the Sellers to the Purchasers, by the
invalidity, unenforceability or frustration of any of the Purchasers'
Guaranteed Obligations, by any lack of capacity or lack or misuse of
authority on the part of the Purchasers or their officers, by the
liquidation, administration or dissolution of the Purchasers or the
disclaimer of any of the Purchasers' Guaranteed Obligations by any
liquidator, by any variation or termination of any of the Purchasers'
Guaranteed Obligations or by any other fact or circumstance which would
or might (but for this Clause 14.2) limit, discharge or otherwise
affect the liability of the Purchasers' Guarantor.
48
(3) The obligations of the Purchasers' Guarantor under this Clause 14.2 are
continuing obligations and shall remain in full force and effect so
long as any of the Purchasers' Guaranteed Obligations has yet to be
fully performed or discharged.
(4) Until all of the Purchasers' Guaranteed Obligations have been fully
performed and discharged the Purchasers' Guarantor shall not, without
the prior written consent of the Sellers:
(a) exercise as against the Purchasers, in respect of any amount
previously paid by the Purchasers' Guarantor under this
guarantee, any right of subrogation or any other right or
remedy which the Purchasers' Guarantor may have in respect of
the same; or
(b) prove in any liquidation of the Purchasers in competition with
the Sellers for any sums owing to the Purchasers' Guarantor by
the Purchaser.
(5) The obligations of the Purchasers' Guarantor under this Clause shall be
in addition to and shall not merge with or be prejudiced by any
collateral or other security now or in future held by the Sellers.
15. COSTS
Each party shall be responsible for all the costs, charges and expenses
incurred by it in connection with and incidental to the preparation and
completion of this Agreement, the other documents referred to in this
Agreement and the sale and purchase under this Agreement. The
Purchasers shall be responsible for any stamp duty or stamp duty
reserve tax and any equivalent Tax under the laws of any other relevant
jurisdiction payable in respect of the transfer of the Shares.
16. ENTIRE AGREEMENT
16.1 Entire agreement
This Agreement and the Agreed Form Documents together represent the
whole and only agreement between the parties in relation to the sale
and purchase of the Shares and supersede any previous agreement whether
written or oral between the parties in relation to that subject matter.
Accordingly, all other terms, conditions, representations, warranties
and other statements which would otherwise be implied (by law or
otherwise) shall not form part of this Agreement.
49
16.2 No liability unless statement made fraudulently
The Sellers shall not be liable in equity, contract or tort or under
the Misrepresentation Xxx 0000 or in any other way in respect of any
representation, warranty or other statement (other than liability in
contract in respect of the Warranties and the other provisions of this
Agreement and the Agreed Form Documents (save for the Disclosure Letter
and the Purchasers' Banking Schedule)) being false, inaccurate or
incomplete unless it was made fraudulently.
16.3 No reliance
The Purchasers acknowledge that in entering into this Agreement and the
Agreed Form Documents they place no reliance on any representation,
warranty or other statement of fact or opinion save for the Warranties
and the other provisions of this Agreement and the Agreed Form
Documents (other than the Disclosure Letter and the Purchasers' Banking
Schedule).
17. CONTINUING EFFECT
Each provision of this Agreement shall continue in full force and
effect after Completion, except to the extent that a provision has been
fully performed on or before Completion.
18. INVALIDITY
If all or any part of any provision of this Agreement shall be or
become illegal, invalid or unenforceable in any respect, then the
remainder of such provision and/or all other provisions of this
Agreement shall remain valid and enforceable.
19. AMENDMENTS, VARIATIONS AND WAIVERS
19.1 Amendments
No amendment or variation of the terms of this Agreement, the
Disclosure Letter or the Deed of Covenant shall be effective unless it
is made or confirmed in a written document signed by all of the parties
to the relevant document.
50
19.2 Waivers
No delay in exercising or non-exercise by any party of any right, power
or remedy under or in connection with this Agreement or any other
document referred to in it shall impair that right, power or remedy or
operate as a waiver or release of it.
20. FURTHER ASSURANCE AND ASSISTANCE
20.1 Further assurance
Each of the parties shall from time to time at its own cost, on being
required to do so by any of the other parties now or at any time in the
future, do or procure the doing of all such acts and/or execute or
procure the execution of all such documents in a form reasonably
satisfactory to the party concerned as the party concerned may
reasonably consider necessary for giving full effect to this Agreement
and securing to it the full benefit of the rights, powers and remedies
conferred upon it in this Agreement.
20.2 Books and records
As from the Completion Date, each of the parties shall give to each of
the other parties such reasonable access to the books, accounts,
records and returns of that other, and provide such information,
relating to or in connection with the Companies and the Subsidiaries as
that other may require including the right to take copies and extracts
on reasonable advance notice within the period of three calendar years
from the Completion Date.
20.3 Availability of employees and information
(1) After the date of this Agreement and up to Completion the Sellers shall
make or shall procure that there are made available to the Purchasers
the reasonable assistance of such of the employees of the Group and the
Sellers' Group and such reasonable management information as the
Purchasers may reasonably require in order to:
(a) keep the Purchasers reasonably informed as to the day-to-day
operation of the Group prior to Completion (which shall
include the provision of monthly management accounts prepared
on a basis consistent in all respects with the Management
Accounts no later than 20 calendar days following the end of
the relevant month); and
51
(b) plan for the integration of the Group into the Purchasers'
Group including at least a monthly conference call with the
senior management of the Group.
(2) Following Completion, the Sellers shall make or shall procure that
there are made available to the Purchasers the reasonable assistance of
those employees of Xxxxxx Duffryn Limited who have had day to day
specific involvement in the affairs of the Group, being Xxxxxxx Xxxxxx,
Xxxxx Xxx, Xxxxxx Xxxxxxx and Xxxxxx Xxxxxxxxxx, such employees only
being made available in relation to those matters with which they have
had specific involvement and for such period as is the shorter of 12
months following Completion and such employees ceasing their employment
with Xxxxxx Duffryn Limited, provided that such employees shall not be
made available if in the reasonable opinion of the Seller this would
prejudice their ability to perform their continuing duties as employees
of Xxxxxx Duffryn Limited and provided further that the Sellers shall
be entitled to charge a reasonable fee for the time and services of
such employees as provided.
20.4 Availability of employees after Completion
Without prejudice to the rights and obligations set out in Clause
10.1(c) and 10.2(4)(c), after the Completion Date, the Purchasers shall
make available to the Sellers the assistance of such of their and the
other members of the Purchasers Group's employees from time to time as
the Sellers may reasonably require in connection with the conduct of
proceedings against the Sellers or other members of the Sellers' Group
and of which such employees have particular knowledge by virtue of
their involvement in the matter giving rise to those proceedings or
otherwise provided that in the reasonable opinion of the Purchasers
there shall be no conflict of interest between any of the Purchaser,
such Sellers or such members of the Guarantor's Group and such employee
at any time in such matter and further provided that the Purchasers
shall be entitled to charge a reasonable fee for the time and services
of such employees so provided.
21. COUNTERPARTS
21.1 Any number of counterparts
This Agreement may be executed in any number of counterparts, and by
the parties on separate counterparts, but shall not be effective until
each of the parties has executed at least one counterpart.
52
21.2 Each counterpart an original
Each counterpart shall constitute an original of this Agreement but all
the counterparts shall together constitute but one and the same
instrument.
22. ASSIGNMENT AND THIRD PARTY RIGHTS
22.1 Agreement binding on successors and permitted assignees
This Agreement shall be binding on and enure for the benefit of the
successors and permitted assignees of the parties.
22.2 Benefit of agreement not assignable
The benefit of this Agreement may not be assigned, transferred, charged
or dealt in (whether by way of security, trust or otherwise) either in
whole or in part to any person except as provided in Clause 22.3
(Permitted assignments).
22.3 Permitted assignments
Any of the Sellers or the Purchasers may assign all or any of their
respective rights under this Agreement:
(a) to any person with the prior written consent of Purchasers'
Guarantor (in the case of a Seller) or the Seller's Guarantor
(in the case of a Purchaser);
(b) without the consent in accordance with Clause 22.3(a) above to
one or more members of the Sellers' Group (in the case of a
Seller) or the Purchasers' Group (in the case of a Purchaser)
subject to the condition that the relevant Seller or Purchaser
(as appropriate) will procure that, before any assignee
subsequently ceases to be a member of the Sellers' Group (in
the case of a Seller) or the Purchasers' Group (in the case of
a Purchaser), that assignee shall assign back to the relevant
Seller or Purchaser (as appropriate), or to another member of
the Sellers' Group (in the case of a Seller) or the
Purchasers' Group (in the case of a Purchaser) (which itself
shall then be deemed to be an assignee of the relevant Seller
or Purchaser (as appropriate) for the purposes of this Clause
22.3 (Permitted assignments)), so much of the benefit of this
Agreement as has been assigned to it
53
provided that the liability of the Sellers as a result of any
assignment by a Purchaser shall not be greater than their liability had
no assignment occurred and that any purported assignment in
contravention of this clause shall be void.
22.4 No Rights of Third Parties
The parties do not intend any provision of this Agreement to be
enforceable pursuant to the Contracts (Rights of Third Parties) Xxx
0000.
23. NOTICES
23.1 Form of notices
All notices and other communications relating to this Agreement:
(a) shall be in English and in writing;
(b) shall be delivered by hand or sent by post or facsimile;
(c) subject to Clause 25.3 (Agent for service of process), shall
be delivered or sent to the party concerned at the relevant
address or number, as appropriate, and marked as shown in
Clause 23.2 (Initial details of the parties), subject to such
amendments as may be notified from time to time in accordance
with this clause by the relevant party to the other parties by
no less than 15 Business Days' notice, except that no party
may so notify an address outside England and Wales;
(d) shall take effect only upon actual receipt at the appropriate
address and for these purposes, a facsimile is received when a
complete and legible copy of the communication, whether that
sent by facsimile or a hard copy sent by post or hand, has
been received. However, if any communication would otherwise
become effective on a non-Business Day or after 5 p.m. on a
Business Day, it shall instead become effective at 10 a.m. on
the next Business Day. Section 196 Law of Property Act 1925
shall not apply to this Agreement.
23.2 Initial details of the parties
The initial details for the purposes of Clause 23.1 (Form of notices)
are:
Party : Xxxxxx Duffryn Limited, Xxxxxx Duffryn
Holdings BV, Xxxxxx Duffryn
(International)
54
Limited and/or Xxxxxx Duffryn
Investments Limited
Address : c/o Nikko Principal Investments Limited
000 Xxxx Xxxx
Xxxxxx XX0X 0XX
Facsimile No : 00 44 20 7799 7903
Marked for the Attention of : Xxxxxxx Xxxxxxx
Party : Oshkosh Group BV
Address : 0000 Xxxxxx Xxxxxx
Xxxxxxx
X X 00000
X.X.X.
Facsimile No : 00 1 920 233 9251
Marked for the Attention of : Xxx Xxxxxxx
Party : Oshkosh European Holdings SL
Address : 0000 Xxxxxx Xxxxxx
Xxxxxxx
X X 00000
X.X.X.
Facsimile No : 00 1 920 233 9251
Marked for the Attention of : Xxx Xxxxxxx
Copy to (in the case of notice Xxxxxxxxx Xxxxxx & Xxxxx
to the Purchasers):
Address : 000 Xxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Xxxxxx Xxxxxxx
Facsimile No : + 44 20 7 360 6324
Marked for the Attention of : Xxxx Xxxxxxxxx
55
Copy to (in the case of notice Xxxxx & Lardner
to the Purchasers):
Address : Firstar Centre
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx
Xxxxxxxxx 00000 - 5367
U.S.A
Facsimile No : 00 1 414 297 4900
Marked for the Attention of : Xxxxxxxx Xxxxxx
24. CURRENCY CONVERSION
For the purpose of converting amounts specified in one currency into
another currency where required, the rate of exchange to be used in
converting amounts specified in one currency into another currency
shall be the closing mid-point rate for exchanges between those
currencies quoted in the Financial Times (London edition) for the
nearest Business Day for which that rate is so quoted on or prior to
the date of the conversion.
25. GOVERNING LAW AND JURISDICTION
25.1 Governing law
This Agreement shall be governed by and construed in accordance with
English law.
25.2 Jurisdiction
The parties irrevocably submit to the non-exclusive jurisdiction of the
English Courts to settle any disputes which may arise out of or in
connection with this Agreement and agree that accordingly any
Proceedings may be brought in those courts.
25.3 Agent for service of process
(1) Each of the Purchasers and the Purchasers' Guarantor irrevocably agrees
that any process may be sufficiently and effectively served on it in
connection with Proceedings in England by service on its agent, the
Purchasers' Solicitors, in accordance with the provisions of Clause 23
(Notices). In the event of the Purchasers' Solicitors (or any
replacement agent) ceasing so to act, each of the Purchasers and the
Purchasers' Guarantor undertakes to appoint another person as its agent
for that purpose and to procure that notice of that appointment is
given to the Sellers in accordance with the provisions of Clause 23
(Notices).
56
(2) Each of the Sellers and the Sellers' Guarantor irrevocably agrees that
any process may be sufficiently and effectively served on it in
connection with Proceedings in England by service on its agent, Nikko
Principal Investments Limited of 000 Xxxx Xxxx, Xxxxxx XX00X 0XX, in
accordance with the provisions of Clause 23 (Notices). In the event of
Nikko Principal Investments Limited (or any replacement agent) ceasing
so to act, each of the Sellers and the Sellers' Guarantor undertakes to
appoint another person as its agent for that purpose and to procure
that notice of that appointment is given to the Purchasers in
accordance with the provisions of Clause 23 (Notices).
EXECUTION
The parties have shown their acceptance of the terms of this Agreement by
executing it at the end of the Schedules.
57
SCHEDULE 1
Part 1 : Details of the Companies
Name : Geesink Group BV
Date of Incorporation : 13 December 1969
Place of Incorporation : The Netherlands
Company Number : 17011545
Registered Office : Xxxxxxxx 0, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
Directors : GMJM Xxxxxx
Xxxxxx 0
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
DEJ Stuifmeel
Xxxxxxxxxx 00
0000 XX Xxxxx
Xxx Xxxxxxxxxxx
WAJ Nieuwenhuijzen
Xxxxxxx 30
7721 WV Dalfsen
The Netherlands
Authorised Share Capital : EUR 500,000 divided into 5,000 shares of
EUR 100 each
Issued Share Capital : EUR 132,400 divided into 1,324 shares of
EUR 100 each
Shareholder : Xxxxxx Duffryn Holdings BV of Xxxxxxxx 0,
0000 XX Xxxxxxxxx, Xxx
Xxxxxxxxxxx
1,324 shares of EUR 100 each
58
Name : Norba AB
Date of Incorporation : 4 May 1914
Place of Incorporation : Sweden
Company Number : 556012-0882
Registered Office : Xxx 0, 000 00 Xxxxxxxxxxxx, Xxxxxx
Directors : SC Xxxxxx
Xxxxxxxx
Xxxxxx Xxxxxx
Xxxxxxx-xx-Xxxxxx
Xxxxxxxxx XX00 0XX
Xxxxxx Xxxxxxx
GMJM Xxxxxx
Xxxxxx 1
8303 KX Emmeloord
The Netherlands
WAJ Xxxxxxxxxxxxxx
Xxxxxxx 00
0000 XX Xxxxxxx
Xxx Xxxxxxxxxxx
C Olsson
Xxxxxxxxxxxxxx 000
000 00 Xxxxxxxxxxxx
Xxxxxx
E Sturesson
Xxxxxxxxxx 0
00000 Xxxxxxxxxxxx
Xxxxxx
Authorised Share Capital : SEK 13,000,000 to SEK 52,000,000 (divided as
set out in the articles of association)
Issued Share Capital : SEK 13,000,000 divided into 72,800 Series A
shares of SEK 125 each and 31,200 series B
shares of SEK 125 each
59
Shareholder : Xxxxxx Duffryn (International) Limited of
Xxxxxx Xxxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxx XX00 0XX, United Kingdom
72,800 Series A shares of SEK 125
each and 31,200 series B shares of
SEK 125 each
60
Name : Geesink Norba Limited
Date of Incorporation : 28 October 1935
Place of Incorporation : England and Wales
Company Number : 306452
Registered Office : Xxxxxxxxxxx Xxxxxxxx Xxxx, Xxxxxxxxxxx
Xxxxxxxxx, Xxx Xxxxxxxxx XX00 0XX
Directors : XX Xxxxx
0 Xxxx Xxxx Xxxx
Xxxxxxxxx
Xxxxxxxxxx
Xxx Xxxxxxxxx XX00 0XX
Xxxxxx Xxxxxxx
XX Xxxxxx
Xxx Xxxxx
Xxxxxxxxxxxx
Xxxxxxxxx
Xxxxx Xxxxxxxxx XX0 0XX
Xxxxxx Xxxxxxx
SC Xxxxxx
Northolt
Xxxxxx Xxxxxx
Xxxxxxx-xx-Xxxxxx
Xxxxxxxxx XX00 0XX
Xxxxxx Xxxxxxx
GMJM Xxxxxx
Xxxxxx 1
8303 KX Emmeloord
The Netherlands
Secretary : XX Xxxxx
4 Coed Isaf Road
Maesycoed
Pontypridd
Xxx Xxxxxxxxx XX00 0XX
Xxxxxx Xxxxxxx
Authorised Share Capital : (pound)10,000,000 divided into ordinary
shares of(pound)1 each
61
Issued Share Capital : (pound)1,729,865 divided into 1,729,865
ordinary shares of(pound)1 each
Member : Xxxxxx Duffryn Investments Limited of Xxxxxx
Xxxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxx XX00 0XX, United Kingdom
1,729,865 ordinary shares of(pound)1 each
62
Part 2 : Details of the Subsidiaries
Name : Geesink BV
Date of Incorporation : 2 July 1953
Place of Incorporation : The Netherlands
Company Number : 39018794
Registered Office : Xxxxxxxx 0, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
Director : Geesink Group BV
Xxxxxxxx 0
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Authorised Share Capital : NLG 10,000,000 divided into 10,000 shares
of NLG 1,000 each
Issued Share Capital : NLG 2,352,000 divided into 2,352 shares
of NLG 1,000 each
Shareholder : Geesink Group BV of Xxxxxxxx 0, 0000
XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
2,352 shares of NLG 1,000 each
63
Name : Geesink Kiggen BV
Date of Incorporation : 23 July 1976
Place of Incorporation : The Netherlands
Company Number : 17038142
Registered Office : Xxx Xxxxxxxxx 0, 0000 XX Xxxxxxxxx,
Xxx Xxxxxxxxxxx
Director : Geesink Group BV
Xxxxxxxx 0
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Authorised Share Capital : NLG 100,000 divided into 1,000 shares of
NLG 100 each
Issued Share Capital : NLG 50,000 divided into 500 shares of
NLG 100 each
Shareholder : Geesink Group BV of Xxxxxxxx 0, 0000
XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
500 shares of NLG 100 each
64
Name : Geesink Vastgoed BV
Date of Incorporation : 28 February 1975
Place of Incorporation : The Netherlands
Company Number : 39026948
Registered Office : Xxxxxxxx 0, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
Director : Geesink Group BV
Xxxxxxxx 0
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Authorised Share Capital : (E)113,500 divided into 1,135 shares of
(E)100 each
Issued Share Capital : (E)22,700 divided into 227 shares of
(E)100 each
Shareholder : Geesink Group BV of Xxxxxxxx 0, 0000
XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
227 shares of EUR 100 each
65
Name : Kiggen Den Englesman BV
Date of Incorporation : 19 December 1984
Place of Incorporation : The Netherlands
Company Number : 17054035
Registered Office : Xxx Xxxxxxxxx 0, 0000 XX Xxxxxxxxx,
Xxx Xxxxxxxxxxx
Director : Geesink Group BV
Xxxxxxxx 0
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Authorised Share Capital : (E)113,500 divided into 1,135 shares of
(E)100 each
Issued Share Capital : (E)22,700 divided into 227 shares of
(E)100 each
Shareholder : Geesink Group BV of Xxxxxxxx 0, 0000
XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
227 shares of EUR 100 each
66
Name : Geesink Kiggen Leasing BV
Date of Incorporation : 8 October 1979
Place of Incorporation : The Netherlands
Company Number : 17043784
Registered Office : Xxx Xxxxxxxxx 0, 0000 XX Xxxxxxxxx,
Xxx Xxxxxxxxxxx
Director : Geesink Group BV
Xxxxxxxx 0
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Authorised Share Capital : (E)100,000 divided into 1,000 shares of
(E)100 each
Issued Share Capital : (E)22,700 divided into 227 shares of
(E)100 each
Shareholder : Geesink Group BV of Xxxxxxxx 0, 0000
XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
227 shares of EUR 100 each
67
Name : Geesink NV
Date of Incorporation : 20 September 1992
Place of Incorporation : Belgium
Company Number : 561436
Registered Office : Xxxxxxxxx 000, 0000 Xxxxx, Xxxxxxx
Directors : WHG van Hazendonk
Lucernevlinder 141
7943 TD Meppel
The Netherlands
GMJM Xxxxxx
Xxxxxx 1
8303 KX Emmeloord
The Netherlands
Authorised Share Capital : BFr 5,000 divided into 5,000 shares of BFr 1
each
Issued Share Capital : BFr 5,000 divided into 5,000 shares of BFr 1
each
Shareholders : Geesink Group BV of Xxxxxxxx 0, 0000
XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
4,999 shares of BFr 1 each
Xxxxxx Duffryn Holdings BV of
Xxxxxxxx 0, 0000 XX Xxxxxxxxx, Xxx
Xxxxxxxxxxx 1 share of Bfr 1 each
68
Name : Geesink Polska Sp.z o.o
Date of Incorporation : 26 July 1999
Place of Incorporation : Poland
State Statistical Office Number: 671953559
Company Number : RHB 7984
Registered Office : xx.Xxxxxxxxxx 00/000, 00-000 Xxxxxxxxx, Xxxxxx
Directors : GMJM Xxxxxx
Xxxxxx 1
8303 KX Emmeloord
The Netherlands
WAJ Nieuwenhuijzen
Xxxxxxx 30
7721 WV Dalfsen
The Netherlands
ABN Laarhoven
Gierwal 5
8347 JN Eesveen
The Netherlands
J Lis
u. Xxxxxxxxxxxxx 0 x 000
00-000 Xxxx
Xxxxxx
Authorised Share Capital : PLN 4,000 divided into 40 shares of PLN
100 each
Issued Share Capital : PLN 4,000 divided into 40 shares of PLN
100 each
Shareholders : Geesink Group BV of Xxxxxxxx 0, 0000
XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
39 shares of PLN 100 each
Geesink BV of Xxxxxxxx 0, 0000 XX
Xxxxxxxxx, Xxx Xxxxxxxxxxx 1 share
of PLN 100
69
Name : Norba A/S
Date of Incorporation : 16 December 1976
Place of Incorporation : Denmark
Company Number : 61359
Registered Office : Xxxxxxx 00, 0000 Xxxxxxxxxx, Xxxxxxx
Directors : GMJM Xxxxxx
Xxxxxx 1
8303 KX Emmeloord
The Netherlands
WAJ Xxxxxxxxxxxxxx
Xxxxxxx 00
0000 XX Xxxxxxx
Xxx Xxxxxxxxxxx
SC Xxxxxx
Northolt
Xxxxxx Xxxxxx
Xxxxxxx-xx-Xxxxxx
Xxxxxxxxx XX00 0XX
Xxxxxx Xxxxxxx
K R J0rgensen
Frugt parken 16
XX-0000 Xxxxxx
Xxxxxxx
Authorised Share Capital : DKK 500,000 divided into 500 shares of
DKK 1,000 each
Issued Share Capital : DKK 500,000 divided into 500 shares of
DKK 1,000 each
Shareholder : Norba AB, Xxx 0, 000 00 Xxxxxxxxxxxx, Xxxxxx
500 shares of DKK 1,000 each
70
Name : Norba Limited
Date of Incorporation : 23 July 1987
Place of Incorporation : England and Wales
Company Number : 2149768
Registered Office : Xxxxxxxx Xxxxxxxxxx Xxxx, Xx Xxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxx XX00 0XX
Directors : GMJM Xxxxxx
Xxxxxx 1
8303 KX Emmeloord
The Netherlands
WAJ Xxxxxxxxxxxxxx
Xxxxxxx 00
0000 XX Xxxxxxx
Xxx Xxxxxxxxxxx
SC Xxxxxx
Northolt
Xxxxxx Xxxxxx
Xxxxxxx-xx-Xxxxxx
Xxxxxxxxx XX00 0XX
XX Xxxxxx
Xxx Xxxxx
Xxxxxxxxxxxx
Xxxxxxxxx
Xxxxx Xxxxxxxxx XX0 0XX
Xxxxxx Xxxxxxx
Secretary : WAJ Xxxxxxxxxxxxxx
Xxxxxxx 00
Xxxxxxx 0000 XX
Xxx Xxxxxxxxxxx
Authorised Share Capital : (pound)1,000,000 divided into 1,000,000
ordinary shares of(pound)1 each
Issued Share Capital : (pound)1,000,000 divided into 1,000,000
ordinary shares of(pound)1 each
71
Member : Norba AB of Xxx 0, 000 00 Xxxxxxxxxxxx, Xxxxxx
1,000,000 ordinary shares of(pound)1 each
72
Name : Sertek Limited
Date of Incorporation : 31 January 1990
Place of Incorporation : England and Wales
Company Number : 2465661
Registered Office : Xxxxxxxx Xxxxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxx XX00 0XX
Directors : XX Xxxxxx
0 Xxx Xxxxxxx
Xxxxxxxx Xxxxx
Xxxxxxxxxx
Xxxxxxxxxx
Xxxxxx Xxxxxxx
XX Xxxxxx
The Cross
Llanblethian
Xxxxxxxxx
Xxxxx Xxxxxxxxx XX0 0XX
Xxxxxx Xxxxxxx
Secretary : XX Xxxxx
4 Coed Isaf Road
Maesycoed
Pontypridd
Xxx Xxxxxxxxx XX00 0XX
Xxxxxx Xxxxxxx
Authorised Share Capital : (pound)1,000,000 divided into(pound)1,000,000
shares of(pound)1 each
Issued Share Capital : (pound)2 divided into 2 shares of(pound)1 each
Member : Norba Limited of Xxxxxxxx Xxxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxx XX00 0XX
2 shares of(pound)1 each
73
Name : Xxxxxxxx Xxxxxxx Limited
Date of Incorporation : 28 January 1986
Place of Incorporation : England and Wales
Company Number : 1983338
Registered Office : Xxxxxxxxxxx Xxxxxxxx Xxxx, Xxxxxxxxxxx,
Xxxxxxxxx, Xxx Xxxxxxxxx XX00 0XX
Directors : XX Xxxxxx
Xxx Xxxxx
Xxxxxxxxxxxx
Xxxxxxxxx
Xxxxx Xxxxxxxxx XX0 0XX
Xxxxxx Xxxxxxx
Secretary : XX Xxxxx
4 Coed Isaf Road
Maesycoed
Pontypridd
Xxx Xxxxxxxxx XX00 0XX
Xxxxxx Xxxxxxx
Authorised Share Capital : (pound)100 divided into 100 ordinary shares
of(pound)1 each
Issued Share Capital : (pound)100 divided into 100 ordinary shares
of(pound)1 each
Members : Geesink Norba Limited of Llantrisant Business
Park, Llantrisant, Pontyclun, Mid Glamorgan
99 ordinary shares of (pound)1 each
XX Xxxxxx of The Folly, Church Road,
Llanblethian, Cowbridge, South Glamorgan
1 ordinary share of(pound)1
74
Part 3: Shares to be Sold
-------------------------------------------------------------------------------------------------
Seller Shares to be sold Purchaser
-------------------------------------------------------------------------------------------------
Xxxxxx Duffryn Holdings BV 1,324 shares of EUR 100 each in the Oshkosh Group
capital of Geesink Group B.V.
-------------------------------------------------------------------------------------------------
1 share of Bfr1 in the capital of Geesink Oshkosh European
N.V. Holdings
-------------------------------------------------------------------------------------------------
Xxxxxx Duffryn (International) 72,800 series A shares of SEK 125 each Oshkosh European
Limited and 31,200 series B shares of SEK 125 Holdings
each in the capital of Norba AB
-------------------------------------------------------------------------------------------------
Xxxxxx Duffryn Investments 1,728,865 ordinary shares of(pound)1 each Oshkosh European
Limited in the capital of Geesink Norba Limited Holdings
-------------------------------------------------------------------------------------------------
75
SCHEDULE 2
COMPANY INTELLECTUAL PROPERTY
A. TRADE MARKS
Trade marks owned by Geesink Norba Limited
--------------------------------------------------------------------------------
TM No. Xxxx Text Country Status Classes
--------------------------------------------------------------------------------
897580 ROLONOF UK Registered 06
--------------------------------------------------------------------------------
897581 ROLONOF UK Registered 12
--------------------------------------------------------------------------------
904544 WESSEX DRAGON UK Registered 12
--------------------------------------------------------------------------------
922163 ROLONOF UK Registered 07
--------------------------------------------------------------------------------
1009799 ROLONOF UK Registered 06
--------------------------------------------------------------------------------
1009800 ROLONOF UK Registered 12
--------------------------------------------------------------------------------
1015775 ROLONOF UK Registered 07
--------------------------------------------------------------------------------
1147639 WASTERIDER UK Registered 12
--------------------------------------------------------------------------------
1156705 SKIP-PAK UK Registered 06
--------------------------------------------------------------------------------
1194143 VULTURE UK Registered 12
--------------------------------------------------------------------------------
1216780 DRAGON UK Registered 07
--------------------------------------------------------------------------------
1216781 DRAGON UK Registered 12
--------------------------------------------------------------------------------
1259496 SKIPPER UK Registered 07
--------------------------------------------------------------------------------
1259497 SKIPPER UK Registered 12
--------------------------------------------------------------------------------
1383587 TORNADO UK Registered 07
--------------------------------------------------------------------------------
1437629 RETRIEVER UK Registered 07
--------------------------------------------------------------------------------
1437630 RETRIEVER UK Registered 12
--------------------------------------------------------------------------------
1437631 RETRIEVER UK Registered 37
--------------------------------------------------------------------------------
1453851 XXXXXXXX UK Registered 07
--------------------------------------------------------------------------------
1453852 XXXXXXXX UK Registered 12
--------------------------------------------------------------------------------
1453853 XXXXXXXX UK Registered 37
--------------------------------------------------------------------------------
1459626 COMBIPAL UK Registered 07
--------------------------------------------------------------------------------
1459627 COMBIPAL UK Registered 12
--------------------------------------------------------------------------------
1459628 COMBIHOIST UK Registered 07
--------------------------------------------------------------------------------
1459629 COMBIHOIST UK Registered 12
--------------------------------------------------------------------------------
76
--------------------------------------------------------------------------------
1526419 COMBIPAL UK Registered 37
--------------------------------------------------------------------------------
1526430 COMBIHOIST UK Registered 37
--------------------------------------------------------------------------------
2163596 PDE GEESINK
POWERDRIVE UK Registered 07
--------------------------------------------------------------------------------
Trade marks owned by Geesink Group BV
--------------------------------------------------------------------------------
TM No. Xxxx Text Country Status Classes
--------------------------------------------------------------------------------
1487100 DIAGON UK Registered 06
--------------------------------------------------------------------------------
980563 GEESINK Benelux Application 6, 7, 12
--------------------------------------------------------------------------------
500546 DIAGON Benelux Registered 6, 20, 39
--------------------------------------------------------------------------------
498883 LOGON Benelux Registered 12, 39, 42
--------------------------------------------------------------------------------
980562 KIGGEN Benelux Application 6, 7, 12
--------------------------------------------------------------------------------
523868 MKM KIGGEN Benelux Registered 6, 7, 12, 20,
39, 42
--------------------------------------------------------------------------------
363862 MKM Benelux Registered 6, 7
--------------------------------------------------------------------------------
2021806 GEESINK CTM Application 6, 7, 12
--------------------------------------------------------------------------------
614430 MKM KIGGEN International Registered 6, 7, 12, 20,
39, 42
--------------------------------------------------------------------------------
583613 LOGON International Registered 12, 39, 42
--------------------------------------------------------------------------------
580951 DIAGON International Registered 6, 20, 39
--------------------------------------------------------------------------------
Trade marks owned by Geesink B.V.
--------------------------------------------------------------------------------
TM No. Xxxx Text Country Status Classes
--------------------------------------------------------------------------------
96/648629 ORDUMAT PD France Registered 6, 7, 12
--------------------------------------------------------------------------------
401273 XXXXXXX XX CTM Registered 6, 7, 12
--------------------------------------------------------------------------------
Trade marks owned by Norba AB
--------------------------------------------------------------------------------
TM Xx. Xxxx Xxxx Xxxxxxx Xxxxxx Xxxxxxx
--------------------------------------------------------------------------------
000000 XXXXX XX Registered 07
--------------------------------------------------------------------------------
831932 NORBA UK Registered 12
--------------------------------------------------------------------------------
77
--------------------------------------------------------------------------------
831933 NORBA UK Registered 21
--------------------------------------------------------------------------------
738946M XXXXX Xxxxx Xxxxxxxxxx 0
--------------------------------------------------------------------------------
000000X XXXXX Xxxxx Registered 12
--------------------------------------------------------------------------------
738948M NORBA Spain Registered 00
--------------------------------------------------------------------------------
000000 XXXXX Xxxxxxxxxxx Registered 0, 00, 00
--------------------------------------------------------------------------------
000000 XXXXX Xxxxx Registered 7, 12, 21
--------------------------------------------------------------------------------
0756817 NORBA XX Xxxxxxx Xxxxxxxxxx 0
--------------------------------------------------------------------------------
0000000 XXXXX XX Federal Registered 21
--------------------------------------------------------------------------------
756740 NORBA US Federal Registered 12
--------------------------------------------------------------------------------
4093 NORBA Benelux Registered 0, 00, 00
--------------------------------------------------------------------------------
0000000 XXXXX Xxxxxx Registered 0, 00, 00
--------------------------------------------------------------------------------
000000 XXXXX Xxxxxxx Registered 7, 12
--------------------------------------------------------------------------------
52546 NORBA Austria Registered 7, 9, 12, 17,
21
--------------------------------------------------------------------------------
A173531 NORBA Australia 7
--------------------------------------------------------------------------------
A173533 NORBA Australia 12
--------------------------------------------------------------------------------
A173534 NORBA Australia 21
--------------------------------------------------------------------------------
14540 NORBA Xxxxxxx 0, 00, 00
--------------------------------------------------------------------------------
00000 XXXXX Xxxxxxx 7, 12, 21
--------------------------------------------------------------------------------
95723 XXXXX Xxxxxx 0
--------------------------------------------------------------------------------
00000 XXXXX Xxxxxx 12
--------------------------------------------------------------------------------
95725 XXXXX Xxxxxx 00
--------------------------------------------------------------------------------
X000000 XXXXX Xxxxxx 7, 12, 21
M31156
--------------------------------------------------------------------------------
ZP2732/21199 NORBA Xxxxxxxxx 0, 00, 00
--------------------------------------------------------------------------------
00000 XXXXX Xxxxxx 12
--------------------------------------------------------------------------------
26468 XXXXX Xxxxxx 0, 0
--------------------------------------------------------------------------------
000000 XXXXX Xxxxxx 7
--------------------------------------------------------------------------------
103452 NORBA Xxxxxx 0, 00, 00
--------------------------------------------------------------------------------
000000 XXXXX Xxxxxxx 7, 12, 21
--------------------------------------------------------------------------------
78
B. PATENTS
Patents owned by Geesink B.V.
---------------------------------------------------------------------------------------------------
Patent Title Patent number Country(ies) Expiry
applied for
---------------------------------------------------------------------------------------------------
Collecting container XX0000000 Great Britain 22.04.2008
---------------------------------------------------------------------------------------------------
Multiple compartment EP0314238 Austria 18.10.2008
refuse lorry NO0170070 Belgium 25.10.2008
DK0166269 Switzerland 26.10.2008
DE3860152.2 Germany
France
Great Britain
Luxembourg
Netherlands
Sweden
Norway
Denmark
---------------------------------------------------------------------------------------------------
Lifting device for refuse IE65271 Ireland 10.04.2011
containers GB2243138 Great Britain 12.04.2011
---------------------------------------------------------------------------------------------------
Container pick-up safety EP0478049 Germany 13.09.2011
system DE69110228.7 Spain
France
Great Britain
Netherlands
---------------------------------------------------------------------------------------------------
Multiple compartment EP0492699 Austria 11.12.2011
refuse lorry-glass DE69108208.1 Belgium
Switzerland
Germany
France
Great Britain
Luxembourg
Netherlands
---------------------------------------------------------------------------------------------------
Sealing device for EP0701527 Belgium 02.06.2014
interchangeable containers DE69401753.1 Switzerland
Germany
Spain
France
Great Britain
Netherlands
---------------------------------------------------------------------------------------------------
Wash and refuse lorry GWA EP0628500 Austria 10.06.2014
DE69405298.1 Belgium
Switzerland
Germany
---------------------------------------------------------------------------------------------------
79
---------------------------------------------------------------------------------------------------
Patent Title Patent number Country(ies) Expiry
applied for
---------------------------------------------------------------------------------------------------
Spain
France
Great Britain
Ireland
Italy
Luxembourg
Netherlands
Monaco
---------------------------------------------------------------------------------------------------
Vehicle with safety means EP0671346 Belgium 07.03.2015
DE69506296.4 Germany
Spain
France
Great Britain
Netherlands
---------------------------------------------------------------------------------------------------
Refuse collection vehicle EP0683115 Austria 10.05.2015
with footboard DE69503834.6 Belgium
Switzerland
Germany
Denmark
Spain
France
Great Britain
Italy
Liechtenstein
Luxembourg
Netherlands
Sweden
---------------------------------------------------------------------------------------------------
Refuse collection vehicle for EP0763487 Belgium 09.09.2016
bottom discharge containers Switzerland
Germany
Spain
France
Great Britain
Netherlands
---------------------------------------------------------------------------------------------------
Refuse Driving Safety NL1001681 Netherlands 17.11.2015
System via parking brake
---------------------------------------------------------------------------------------------------
Lid opener II NL1004252 Netherlands 11.10.2002
---------------------------------------------------------------------------------------------------
Refuse collection vehicle NL1002518 Netherlands 03.03.2002
with lid handling device
---------------------------------------------------------------------------------------------------
Refuse collecting vehicle XX0000000 Netherlands 27.03.2016
with interchangeable
container
---------------------------------------------------------------------------------------------------
80
---------------------------------------------------------------------------------------------------
Patent Title Patent number Country(ies) Expiry
applied for
---------------------------------------------------------------------------------------------------
Contactless safety system NL1003535 Netherlands 08.07.2016
---------------------------------------------------------------------------------------------------
Supporting device II NL1004165 Netherlands 01.10.2016
---------------------------------------------------------------------------------------------------
Control system for side loader NL1007486 Netherlands 07.11.2017
---------------------------------------------------------------------------------------------------
Pick up device with pulley NL1007723 Netherlands 08.12.2017
---------------------------------------------------------------------------------------------------
Side loader with camera NL1007724 Netherlands 08.12.2017
---------------------------------------------------------------------------------------------------
Comb locking device NL1007726 Netherlands 08.12.2017
---------------------------------------------------------------------------------------------------
Contactless safety system II NL1007733 Netherlands 08.12.2017
---------------------------------------------------------------------------------------------------
Tilting hook switch XX0000000 Netherlands 09.12.2017
---------------------------------------------------------------------------------------------------
Safety barrier locking device NL1009325 Netherlands 04.06.2018
---------------------------------------------------------------------------------------------------
Refuse collection vehicle with EP0798237 Austria 2017 (open to
interchangeable body DE69703405.4 Belgium opposition until
Switzerland 2.8.2001)
Germany
Spain
France
Great Britain
Italy
Netherlands
---------------------------------------------------------------------------------------------------
Protecting locking plate NL1010587 Netherlands 2004
---------------------------------------------------------------------------------------------------
Sideloader with additional NL1013504 Netherlands 2019
positioning
---------------------------------------------------------------------------------------------------
Tailgate loading packer for a EP0042191 Benelux 9.8.2001
collecting body France
Germany
Great Britain
---------------------------------------------------------------------------------------------------
NL1011031 Netherlands
---------------------------------------------------------------------------------------------------
Patents owned by Geesink Group BV
---------------------------------------------------------------------------------------------------
Patent Title Patent number Country(ies) Expiry
applied for
---------------------------------------------------------------------------------------------------
Container for refuse NL1005959 Netherlands 02.05.2017
---------------------------------------------------------------------------------------------------
Lifting device for a refuse XX0000000 Netherlands 18.12.2015
container
---------------------------------------------------------------------------------------------------
81
Patents owned by Kiggen Beheer BV (now Geesink Kiggen BV)
---------------------------------------------------------------------------------------------------
Patent Title Patent number Country(ies) Expiry
applied for
---------------------------------------------------------------------------------------------------
Container for refuse NL1001039 Netherlands 24.02.2015
---------------------------------------------------------------------------------------------------
Container NL1001038 Netherlands 24.08.2015
---------------------------------------------------------------------------------------------------
Closing mechanism for a EP0760347 Austria 16.08.2016
pivoting container door Belgium
Switzerland
Germany
Spain
France
Great Britain
Greece
Italy
Liechtenstein
Luxembourg
Netherlands
Sweden
---------------------------------------------------------------------------------------------------
Patents owned by Norba AB
---------------------------------------------------------------------------------------------------
Patent title Patent number Country(ies) Expiry
applied for
---------------------------------------------------------------------------------------------------
Apparatus for charging 308 723/US4 955 776 US 11.9.2007
solids under compression
into a receptacle
---------------------------------------------------------------------------------------------------
Tailgate - device for 500653/890 00000-0 Xxxxxx 30.3.2009
loading at least two types of 19914 543 Finland 30.3.2010
waste material EP0 473 603/9090 Europe 30.3.2010
5733.3-2308
DE6000736.1
---------------------------------------------------------------------------------------------------
Apparatus for charging EP0329629 Austria 14.01.2008
solids under compression Belgium
into a receptacle Switzerland
Germany
Spain
France
Great Britain
Greece
Italy
---------------------------------------------------------------------------------------------------
82
---------------------------------------------------------------------------------------------------
Patent title Patent number Country(ies) Expiry
applied for
---------------------------------------------------------------------------------------------------
Liechtenstein
Luxembourg
Netherlands
Sweden
---------------------------------------------------------------------------------------------------
Device for handling refuse XX0000000 Austria 6.09.2008
Belgium
Switzerland
Germany
Spain
France
Great Britain
Greece
Italy
Liechtenstein
Netherlands
Sweden
---------------------------------------------------------------------------------------------------
Patent applications owned by Geesink B.V.
---------------------------------------------------------------------------------------
Patent title Application number Date of
application/priority
application
---------------------------------------------------------------------------------------
Contactless safety system EP0818402 Priority NL1003535,
8.7.1996
---------------------------------------------------------------------------------------
Supporting device II EP97202826.0 Priority NL1004165,
1.10.1996
---------------------------------------------------------------------------------------
Location detection device CA2311917 Priority NL1007723,
with pulley EP1037826 8.12.1997
NZ504883
PL341102
US09/589867
---------------------------------------------------------------------------------------
Side loader with camera AU15125/99 Priority NL 1007724,
XX0000000 8.12.1997
XX0000000
XX000000
XX X 000000
US09/589996
---------------------------------------------------------------------------------------
83
---------------------------------------------------------------------------------------
Patent title Application number Date of
application/priority
application
---------------------------------------------------------------------------------------
Contactless safety system II EP0928756 Priority NL1007733,
8.12.1997
---------------------------------------------------------------------------------------
Locking device EP0962401 Priority NL1009325,
5.6.1998 and
NL1010587, 8.11.1998
---------------------------------------------------------------------------------------
Side loader with detecting EP1020375 Priority NL1011031,
device 14.1.1999
---------------------------------------------------------------------------------------
Manually operated chute EP1081062 Priority NL1012942,
31.8.1999
---------------------------------------------------------------------------------------
Refuse collection vehicle EP0774425 Priority NL1001681,
provided with a safety 17.11.1995
system
---------------------------------------------------------------------------------------
Patent applications owned by Geesink Group BV
---------------------------------------------------------------------------------------
Patent title Application number Date of
application/priority
application
---------------------------------------------------------------------------------------
Pit container EP0979202 Priority NL1005959,
2.5.1997
---------------------------------------------------------------------------------------
Patent applications owned by Norba A.B.
---------------------------------------------------------------------------------------
Patent title Application number Date of
application/priority
application
---------------------------------------------------------------------------------------
Bin grip, side loader - 449 980/820 4995-8 2.9.1982
device for emptying (Sweden)
different types of waste
containers of square cross
section
---------------------------------------------------------------------------------------
Tailgate, Arr for waste 000 000 (Xxxxxx) 28.8.1998
handling vehicle 19994158 (Norway) 27.8.1999
99850130.8 (Europe - 25.8.1999
Germany, Denmark,
Spain, Finland,
France, Ireland, UK)
---------------------------------------------------------------------------------------
84
---------------------------------------------------------------------------------------
Patent title Application number Date of
application/priority
application
---------------------------------------------------------------------------------------
Device for sorting waste 0000000-0 (Xxxxxx) 25.9.1998
---------------------------------------------------------------------------------------
C. DESIGNS
--------------------------------------------------------------------------------
Name Registration Number Country
--------------------------------------------------------------------------------
Container 2310800 Benelux
--------------------------------------------------------------------------------
Filling aperture underground system 2827800 Benelux
--------------------------------------------------------------------------------
D. DOMAIN NAMES
Netherlands
xxxxxxx.xxx
xxxxxxxxxxxx.xxx
xxxxxxxxxxxx.xxx
xxxxxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxxxx.xxx
xxxxxxx.xx
xxxxxxxxxxxx.xx
xxxxxxxxxxxxx.xx
xxxxxxxxxxxx.xx
xxxxxxxxxxxxxxxxx.xx
Sweden
xxxxx.xx
xxxxx.xx
xxxxx.xx.xx
xxxxx.xxx
xxxxx.xxx
xxxxxxx-xxxxx.xxx
85
UK
xxxxx.xx.xx
xxxxxxxxxx.xx.xx
xxxxxxxxxx.xxxxx.xxx
xxxxxxx.xx.xx
xxxxxxxxxx.xxx
Germany
xxxxxxxxxxxx.xx
xxxxxxxxxxxxxxxxx.xx
Poland
xxxxxxx.xxx.xx
86
SCHEDULE 3
COMPLETION ARRANGEMENTS
1. SELLER'S OBLIGATIONS TO DELIVER
The Sellers shall deliver to the Purchasers at the offices of the
Sellers' Solicitors, unless otherwise stated:
(a) in the Netherlands:
(i) the Dutch Notarial Deed executed as at Completion by
Xxxxxx Duffryn Holdings BV;
(ii) evidence that the name of Oshkosh European Holdings
has been entered into the register of members of
Geeskink NV; and
(iii) to the extent appropriate, the documents specified in
Paragraphs 1(e), (f), (g) and (h) in respect of
Geesink Group BV and the Dutch Subsidiaries;
(b) in Sweden:
(i) the share certificate(s) in respect of the Shares in
the capital of Norba AB duly endorsed by Xxxxxx
Duffryn (International) Limited to effect the
transfer of such Shares in favour of Oshkosh Group,
together with pertaining dividend coupons (if any);
(ii) the share ledger of Norba AB, showing that Oshkosh
Group has been registered as the holder of all the
Shares in Norba AB; and
(iii) to the extent appropriate, the documents specified in
Paragraph 1(e), (f), (g) and (h) in respect of Norba
AB and Norba A/S;
(c) duly executed share transfers in respect of the Shares in the
capital of Geesink Norba Limited in favour of Oshkosh Group,
or as it may direct, together with related share certificates
for such Shares and any power of attorney or other authority
under which those transfers have been executed;
(d) written resignations and releases executed as a deed, in the
Agreed Terms, from Xxxxxxx Xxxxxx resigning his office as
Director and releasing each
87
relevant Company and Subsidiary (other than in the case of
Norba AB and its Subsidiaries) from all claims and rights of
action whatsoever;
(e) (other than in the case of Norba AB and its Subsidiaries), the
common seal (where applicable), certificate of incorporation
(and any certificate of incorporation on change of name) and
all statutory books, share ledgers and equivalent for each
place of incorporation, of the Companies and the Subsidiaries
written up to the day prior to the Completion Date;
(f) make available the documents of title (where applicable) to
the Properties;
(g) the Sellers' Deed of Covenant duly executed as at Completion
by the Sellers;
(h) the Tax Deed duly executed as at Completion by the Sellers;
and
(i) minutes of a meeting of the directors of the Sellers and the
Sellers' Guarantor authorising the execution by the Sellers
and the Sellers' Guarantor of this Agreement, the Tax Deed,
the Deed of Covenant and any other documentation relevant in
connection with this transaction contemplated by this
Agreement (those copy minutes being certified as correct by
the secretary of the Sellers);
(j) Xx Xxxxxx' Deed of Covenant duly executed as at Completion by
Xxxxxxx Xxxxxx; and
(k) a duly executed transfer in favour of Geesink Norba Limited in
respect of the one ordinary share of(pound)1 in Xxxxxxxx
Xxxxxxx Limited registered in the name of XX Xxxxxx.
2. BOARD MEETINGS OF THE COMPANIES AND SUBSIDIARIES
(1) The Sellers shall cause to be duly held a meeting of the shareholders
of Geesink Group BV and its Subsidiaries validly to effect or validly
to resolve to effect the acceptance of the resignations of Xxxxxxx
Xxxxxx and Xxxxxx Xxxxxxx from the supervisory board of Geesink Group
BV.
(2) The Sellers shall cause to be duly held a meeting of the Board of each
of Geesink Norba Limited and Norba Limited validly to effect or execute
or validly to resolve to effect or execute:
(a) the approval of the said transfers of the Shares in the
capital of Geesink Norba Limited to Oshkosh Group, the issue
to Oshkosh Group of share certificates in
88
respect of those shares and the registration of Oshkosh Group
as holder of those shares (subject only to those transfers
being represented duly stamped);
(b) the acceptance of the resignation of Xxxxxxx Xxxxxx as
Director of Geesink Norba Limited and Norba Limited; and
(c) the sealing of new share certificates for the Shares in the
capital of Geesink Norba Limited in favour of the Purchasers
(or their respective nominees).
3. PURCHASERS' OBLIGATIONS AT COMPLETION
Subject to the conclusion of the matters referred to in Paragraphs 1
and 2 the Purchasers shall1:
(a) procure that 84.8% of the aggregate sum payable pursuant to
Clause 3.2 (Payment on Account) shall immediately be paid by
way of electronic transfer for same day value to the client
bank account of the Sellers' Solicitors at Royal Bank of
Scotland Plc (Sort Code: 16-00-19 Account No: ROMAEUR1);
(b) procure that 7.6% of the aggregate sum payable pursuant to
Clause 3.2 (Payment on Account) shall immediately be paid by
way of electronic transfer for same day value to the client
bank account of Lovells at Rabobank (Swift Code: Rabonl2u
Account No: 3135.81.614 (Derdengelden Lovells Notariaat));
(c) procure that 7.6% of the aggregate sum payable pursuant to
Clause 3.2 (Payment on Account) shall immediately be paid by
way of electronic transfer for same day value to the client
bank account of the Xxxxxxxxxx Xxxxxxxxx at SEB (Swiftkod:
ESSE-SE-SS Account No: 5222-0000000 (Xxxxxx Duffryn));
(d) deliver to the Sellers' Solicitors a counterpart of the
Sellers' Deed of Covenant and Xx Xxxxxx' Deed of Covenant, in
each case duly executed by the Purchasers and the Purchasers'
Guarantor;
(e) deliver to the Sellers' Solicitors the Tax Deed in the
Netherlands and the Dutch Notarial Deed, in each case duly
executed by Oshkosh Group and Oshkosh European Holdings
respectively; and
89
(f) deliver to the Sellers' Solicitors a copy of the duly signed
minutes of the meeting of the board of directors of the
Purchasers and the Purchasers' Guarantor authorising the
execution of this Agreement and the Deed of Covenant.
90
SCHEDULE 4
WARRANTIES
In this Schedule 4 (Warranties), references to the "Company" are references to
the Companies and the Subsidiaries individually.
Part 1 - General Warranties
1. COMPANY RETURNS AND RECORDS
1.1 Particulars of the Company
The particulars of the Company and the Shares set out in Schedule 1 are
true and complete.
1.2 Memorandum and articles of association
The copies of the memorandum and articles of association or other
statutes and bye-laws of the Company contained in the Disclosure Letter
are complete and contain all alterations or amendments made thereto
prior to the date of this Agreement and fully set out all of the rights
and restrictions attaching to each class of shares and loan capital of
the Company.
1.3 Compliance with companies legislation
The Company has complied in all respects with the Companies Act (or
relevant equivalent legislation in the jurisdiction in which it is
incorporated as are or have been in force) and all returns,
particulars, resolutions and other documents required under any such
legislation to be delivered on behalf of the Company to any
governmental or other competent authority have been properly made and
delivered.
1.4 Statutory books
The register of shareholders and other statutory books and records of
the Company have been properly kept and are in the possession or under
the control of the Company.
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1.5 Company validly existing
The Company is duly organised and validly exists under the laws of the
country and state in which it is incorporated and has all requisite
corporate powers and authority to own its properties and to carry on
its business as presently conducted.
2. SHARES AND SHARE CAPITAL
2.1 Shares comprise all allotted and issued share capital
The Shares (or, in the case of the Subsidiaries, the shares shown in
Part 2 of Schedule 1) comprise the whole of the allotted and issued
share capital of the Company and all of them have been properly
allotted and issued and are fully paid up.
2.2 No options or conversion rights
No person has the right to call for the issue of any share or loan
capital of the Company under any option or other agreement or under any
conversion rights and there is not now, and there is no agreement,
arrangement or obligation (actual or contingent) to create, any
Encumbrance over any shares in the Company (whether or not issued). The
Company has not received written notice that any person is alleged to
be entitled to any Encumbrance in relation to any of the shares in the
Company (whether or not issued).
2.3 No repayment or redemption of share capital
The Company has not since the Balance Sheet Date repaid or redeemed or
agreed to repay or to redeem any shares of any class of its share
capital or otherwise reduced or agreed to reduce its issued share
capital or any class thereof or capitalised or agreed to capitalise in
the form of shares or debentures or other securities or in paying up
any amounts unpaid on any shares debentures or other securities any
profits or reserves of any class or description or passed or agreed to
pass any resolution to do so and the Company has not received written
notice that any person has or is entitled to claim any right (actual or
contingent) to call for repayment or redemption of any share capital or
loan capital of the Company.
2.4 Legal and Beneficial Ownership
Xxxxxx Duffryn Holdings BV is the sole legal and beneficial owner of
the Shares in Geesink Group BV, Xxxxxx Duffryn (International) Limited
is the sole legal and
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beneficial owner of the Shares in Norba AB and Xxxxxx Duffryn
Investments Limited is the sole legal and beneficial owner of the
Shares in Geesink Norba Limited.
2.5 Transactions at an undervalue
None of the shares in the Company was, or represents assets which were,
the subject of a transfer at an undervalue (within the meaning of
Section 238 or 239 of the Insolvency Act 1986) or any other transaction
capable of being set aside or varied under any insolvency laws within
the past five years. This Warranty shall not apply in relation to Norba
AB and its Subsidiaries prior to their acquisition in accordance with
the Norba Agreement.
3. SUBSIDIARIES, PARTNERSHIPS ETC.
3.1 No subsidiaries other than the Subsidiaries
The Companies have no subsidiaries other than the Subsidiaries and are
not the legal or beneficial owner of any shares or other securities or
capital of any other company or corporation other than the Subsidiaries
whether limited or unlimited and whether incorporated in the United
Kingdom or elsewhere.
3.2 No partnership
The Company is not a member of any partnership or other unincorporated
association and, save for the branches of Geesink BV in Germany, Italy,
Spain and France, has no place of business, branch or permanent
establishment other than in the country of its incorporation.
3.3 Details of Subsidiaries
The particulars of the Subsidiaries set out in Schedule 1 are true and
complete and the whole of the issued share capital of each Subsidiary
is beneficially owned by the relevant Company free from all liens,
charges, encumbrances, rights of pre-emption or other equities or third
party rights of any nature whatsoever.
4. ACCOUNTS
4.1 Consolidated Accounts
The Consolidated Accounts:
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(a) were prepared in accordance with GAAP on a consistent basis
with the financial year ending 31 March 2000; and
(b) show a true and fair view of the assets, liabilities and state
of affairs of the Group and the profits and losses and cash
flows of the Group for the financial year ended on the Balance
Sheet Date;
having regard to the fact that such Consolidated Accounts do not
constitute statutory accounts as the Group does not constitute a group
for the purposes of the Companies Act.
4.2 Exceptional Items
The results shown in the Consolidated Accounts have not (except as
disclosed therein) been affected by any extraordinary, exceptional or
non-recurring item.
4.3 Management Accounts
The Management Accounts have been honestly and carefully prepared on
bases consistent in all material respects with those employed in the
preparation of the Consolidated Accounts and are not misleading.
4.4 Amounts due to Xxxxxx Duffryn Holdings B.V.
The item shown in the Consolidated Accounts as "amounts due to Xxxxxx
Duffryn Holdings B.V. in respect of administrative expenses" includes
only obligations arising to Xxxxxx Duffryn Holdings BV in respect of
salary and other remuneration payments of an employee of a member of
the Group or other properly incurred administrative expenses settled by
such person which are customarily recharged by a member of the Group.
5. EVENTS SINCE BALANCE SHEET DATE
Since the Balance Sheet Date:
(a) the Company has carried on its business in the ordinary and
usual course with a view to maintaining the same as a going
concern and with a view to maintaining its goodwill and
business relationships;
94
(b) the Company has not entered into, modified or terminated any
contract material to the Group as a whole (other than in the
ordinary course of business);
(c) the Company has not created, allotted, issued, repaid or
redeemed any share or loan capital;
(d) no distribution of capital or income has been declared made or
paid in respect of any share capital of the Company except as
provided in the Accounts and no resolution has been passed by
the Company having similar effect;
(e) there has been no, and the Management Accounts taken in
isolation do not constitute a, material adverse change in the
financial position of the Group and, so far as the Seller is
aware, no event, fact or matter has occurred or is likely to
occur which will or is likely to give rise to any such change;
(f) the Company has not made any capital expenditure or incurred
any capital commitments which are now outstanding in excess of
(E)75,000 in respect of any one item or (E)500,000 in total;
(g) the Company has not acquired or disposed of or agreed to
acquire or dispose of any substantial part of its business or
undertaking except in the ordinary course of business;
(h) the Company has continued to pay its creditors in the ordinary
course of its business in accordance with past practice;
(i) the Company has not (conditionally or unconditionally) agreed
to do any of the things referred to in any of the foregoing
paragraphs; and
(j) the Company has not altered its methods of calculating
interest in respect of any Inter Company Debt.
6. ASSETS OF THE COMPANY
6.1 Status of assets
Except for trading stock disposed of in the ordinary course of business
or assets acquired subject to retention or reservation of title by the
supplier or manufacturer in the ordinary course of business, all the
assets included in the Consolidated Accounts
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and all assets which have been acquired by the Company since the
Balance Sheet Date are:
(a) legally and beneficially owned by the Company free from and
clear of all Encumbrances (but excluding liens, retention of
title and other similar encumbrances arising in the ordinary
course of business);
(b) not the subject of any hire purchase, leasing, lease purchase
or credit-sale agreements, agreements for conditional sale or
sale by instalments; and
(d) in the possession of or under the control of the Company.
6.2 No hire agreements
The Company is not a party to, or liable under, a lease, hire, hire
purchase, credit sale, deferred payment or conditional sale or purchase
agreement where the total amount outstanding under such agreement is in
excess of (E)75,000, except for those agreements details of which are
set out in the Disclosure Letter.
6.3 Plant
All plant, machinery, vehicles and office equipment owned or used by
the Company complies in all respects with all relevant statutes and
regulations and is in reasonable repair and has been regularly
maintained having regard to normal wear and tear and to the extent to
which it is currently being used and is capable of being used to the
extent to which and for the purposes for which it is currently being
used in the business of the Company.
6.4 Stock and Raw Materials
Save as provided in the Consolidated Accounts and the Management
Accounts, the Stock held or ordered by the Company is reasonably
adequate, but not excessive, to satisfy the current and anticipated
demands of the business of the Company (having regard to normal
seasonal demand patterns), is of satisfactory quality, includes no
obsolete, obsolescent or slow moving items and the Stock comprising
finished goods is readily realisable and saleable at normal selling
prices in the ordinary course of business.
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6.5 Debts collectable
All of the debts shown in the Consolidated Accounts or the Management
Accounts have realised (or will realise within a period of three months
from their due dates) their full value in the ordinary course of
collection less any provision for bad or doubtful debts included in the
Consolidated Accounts or the Management Accounts.
6.6 No Factoring
The Company has not factored, sold or discounted any of its debts nor
agreed to do so.
6.7 No Debts
There are no debts owing by or to the Company other than debts which
have arisen in the ordinary course of business nor has the Company lent
any money which has not been repaid.
7. LIABILITIES AND BANK ACCOUNTS
7.1 No borrowings
Except as disclosed in the Consolidated Accounts, the Management
Accounts or in the Disclosure Letter the Company did not have
outstanding any loan capital, borrowing or indebtedness in the nature
of borrowing, including any bank overdrafts or liabilities under
acceptances (other than normal trade bills) or acceptance credits as at
the close of business on the day two Business Days prior to the date of
this Agreement.
7.2 No default under borrowing agreements
No event has occurred which constitutes an event of default under any
agreement relating to borrowing or indebtedness in the nature of
borrowing or which would lead to any security constituted or created in
connection with any borrowings or indebtedness in the nature of
borrowing, guarantee, indemnity or other obligation of the Company
becoming enforceable.
7.3 Separate bank accounts
The bank accounts of the Company are operated separately from the bank
accounts of any other person (including any member of the Group) and
there is no right of set off
97
against moneys in the Company's bank accounts for the liabilities of
any other person (including any member of the Group).
7.4 Guarantees and indemnities
No guarantee or indemnity has been given by the Company in respect of
the obligations or liabilities of any other person (including any
member of the Group), or by any other person (including any member of
the Group) in respect of any obligation or liability of the Company.
7.5 Grants and allowances
Details of all investment grants and similar payments or allowances
received by the Company from any government authority are set out in
the Disclosure Letter and the Company has not done or omitted to do
anything which could result in all or any part of any such grant,
payment or allowance becoming repayable or being forfeited.
7.6 Foreign Exchange Transactions
The Disclosure Letter sets out all outstanding contracts for the sale
or purchase of foreign exchange which involve payment by any members of
the Group of a gross sum in excess of (E)5,000.
8. INSOLVENCY
8.1 No winding up petition
No order has been made or petition presented or resolution passed for
the winding up of the Company or for an administration order in respect
of the Company nor has any distress execution or other process been
levied on any of its assets nor has it stopped payment nor is it
insolvent or unable to pay its debts for the purposes of Section 123 of
the Insolvency Xxx 0000.
8.2 No receiver
No administrative receiver or receiver and manager of the business or
assets of the Company or any part thereof has been appointed by any
person and there is no unfulfilled or unsatisfied judgment or court
order outstanding against the Company.
98
8.3 No arrangements
The Company has not at any time been a party to or subject to or
applied for:
(a) the sanctioning under section 425 of the Companies Act of a
compromise or arrangement between it and any such persons as
are mentioned in that section or the making of any other
compromise with its creditors;
(b) crystallisation of any floating charge created by it or the
occurrence of any event which causes, or with the giving of
any notice or making of any demand would cause, such
crystallisation;
(c) the appointment of any receiver (including any administrative
receiver, as defined in the Insolvency Act 1986) over all or
any or any part of its property or assets;
(d) an encumbrancer taking possession of, or otherwise enforcing
his security over, all or any or any part of its property or
assets;
(e) the levying of any distress, execution, charging order,
garnishee or other process over all or any or any part of its
property or assets;
(f) the failure by it to fully satisfy any judgment (monetary or
otherwise) outstanding against it in circumstances in which
the judgment creditor has a present right to execute or
enforce such judgment;
(g) the issue, filing or service of any petition, application,
notice, advertisement, demand, proceedings, process, circular
or communication, the covering of any meeting, or the taking
of any steps, or the existence of any circumstances, which may
lead to the occurrence of any of the foregoing events; or
(h) the occurrence of any event under the laws of any
jurisdiction, other than England and Wales, which is analogous
to any of the foregoing events.
9. RECORDS, ETC.
Books and records of the activities of the Company have been maintained
at all material times in accordance with the law of the country of
incorporation of the Company.
99
10. CONDUCT OF BUSINESS
10.1 Permits
All necessary licences, consents, permits, approvals and authorities
(public and private) have been obtained by the Company to enable the
Company to carry on its business lawfully in the places and in the
manner in which such business is now carried on and all such licences,
consents, permits, approvals and authorities are valid and subsisting
and so far as the Sellers are aware the Company is not in breach of the
same and the Sellers are not aware of any reason why any of such
licences, consents, permits, approvals and authorities should be
suspended, cancelled, modified or not renewed.
10.2 No powers of attorney
There are not in force any powers of attorney given by the Company,
other than (i) powers of attorney given in the normal course of
business in relation to the prosecution and maintenance of Intellectual
Property and (ii) powers of attorney given to directors or employees of
the Group permitting them to transact business on behalf of a Company
in accordance with authority limits set out in the Finance Manual.
10.3 No litigation
Save for the collection of small debts in the ordinary course and for
minor road traffic offences, the Company is not engaged in any suits,
actions, legal or arbitration proceedings where the amount claimed is
in excess of (E)100,000 or governmental investigations and the
Sellers have not received written notice that any such suit, action,
legal or arbitration proceedings or governmental investigations are
pending or threatened against or by the Company. There is no
outstanding judgment, order, decree, award or decision of a court,
tribunal, arbitrator or other person in any jurisdiction against the
Company or a person for whose acts or defaults the Company may be
liable.
10.4 No breach of statutory requirements
So far as the Sellers are aware, the Company has not done or omitted to
do anything in breach of any relevant statutory requirement bye laws or
regulations of the United Kingdom or elsewhere applicable to it or its
business where such contravention will have an adverse effect on the
continued operation of the business of the Company.
100
10.5 No restrictions on business
Other than written distribution agreements or agency agreements or
dealership agreements or licence agreements in the ordinary course, no
part of the business of the Company is carried on under the agreement
or consent of a third party nor is there any agreement which restricts
the fields or countries in which the Company carries on business.
10.6 Substantial dependence
In the 12 months prior to the date of this Agreement no customer of the
Company (including, for this purpose, any person in any way connected
with such customer) or supplier to the Company (including, for this
purpose, any person in any way connected with such supplier) accounted
for more than 5 per cent of the aggregate amount of purchases from or
supplies to the Group as a whole.
10.7 Customers and suppliers
(1) So far as the Sellers are aware, in the 12 months prior to the date of
this Agreement, the Group has had no reason to believe that:
(a) any material customer (that is a customer who accounted for
more than 50 refuse collection vehicles (with or without
chassis) in relation to Geesink Group BV, its subsidiaries and
Geesink Norba Limited or 25 refuse collection vehicles (with
or without chassis) in relation to Norba AB and its
subsidiaries in each case during any of the seven years prior
to the date of this Agreement) has ceased, or in the case of
persons who continue to be customers of the Company has
indicated that it will cease purchasing refuse collection
vehicles (with or without chassis) from the Company; or
(b) any material supplier (that is a supplier who accounted for
more than 5 per cent of the aggregate amount of supplies to
the Group as a whole during the last 12 months or the
exclusive supplier of any supplies) has ceased or, in the case
of persons who continue to be suppliers of the Company has
indicated that it will cease supplying the Company.
(2) So far as the Sellers are aware, no such customer or supplier is
likely, by reason of completion of this Agreement, to cease purchasing
from or supplying the Company.
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This Warranty 10.7 shall not apply in respect of purchases/supplies
which occurred in relation to Norba AB and its Subsidiaries in respect
of any period prior to the Completion of the Norba Acquisition
Agreement.
10.8 Sale or return
The Company has not accepted any liability or obligation to take back
any goods, which remains outstanding at the date of this Agreement, the
value of which would exceed (E)100,000 in the aggregate.
10.9 Customer complaints
Details of all outstanding customer claims, in respect of defective
products or alleged defective products made to the Company in the 12
months preceding the date of this Agreement are set out in the
Disclosure Letter where the subject of the complaint exceeds
(E)45,000.
10.10 Trade associations
Details of all trade associations of which the Company is a member are
set out in the Disclosure Letter.
11. INTELLECTUAL PROPERTY
11.1 Company Intellectual Property
Schedule 2 (Company Intellectual Property) contains a complete and
accurate list of all registrations and all applications for
registration or grant which are comprised in the Company Intellectual
Property.
11.2 Company Intellectual Property - Registrations etc
All Company Intellectual Property:
(a) is vested in or granted to or applied for in the name of a
member of the Group;
(b) where registered, all such registrations have been maintained
by the payment of all applicable fees;
(c) is so far as the Sellers are aware valid and enforceable; and
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(d) insofar as the same consists of registered trade marks, none
has remained unused for a continuous period of 5 years as at
the date hereof; and
(e) so far as the Sellers are aware, nothing else has been done or
omitted to be done by a member of the Group which could or
might derogate from the validity and enforceability of the
Company Intellectual Property.
11.3 No notice of infringement
So far as the Sellers are aware, the Company is not now infringing nor
has it at any time in the last 6 years infringed the Intellectual
Property of any third party. The Company has not received written
notice of any infringement allegations. So far as the Sellers are
aware, no person is infringing or has infringed during the last 6 years
any of the Company Intellectual Property.
11.4 No objections
No written notice of opposition, objection or challenge as to the
proprietorship or validity of any Company Intellectual Property has
been received by the Company.
11.5 Express licences to third parties
Copies or details of all express licences granted to third parties by
the Company in relation to Company Intellectual Property are set out in
the Disclosure Letter.
11.6 Express licences from third parties
Copies or details of all express licences of Intellectual Property
granted to the Company by third parties, but excluding in any event
licences of non-bespoke software, are set out in the Disclosure Letter.
11.7 Neither the Company nor any party with which the Company has contracted
is in breach of or has breached any licence, sub-licence or assignment
granted to or by the Company in respect of any Company Intellectual
Property.
11.8 Employees/Consultants
There are no outstanding or potential claims against the Company under
any contract relating to employee compensation for inventions, or under
the provisions relating to employee compensation under the Patents Xxx
0000 and no employee is entitled to any award or compensation in
respect thereof under the Patents Xxx 0000. All
103
Intellectual Property brought into existence by employees of the
Company acting in the course of their employment which is currently
being used by the Company, is owned by the Company, whether by virtue
of express agreements to this effect or by operation of law. No
consultant of the Company is claiming to own any Intellectual Property
which is used by the Company (other than where the Company has an
express licence to use the same).
11.9 Trading name
The Company does not use any corporate, business or trading name other
than those set out in the Disclosure Letter.
11.10 Confidential Information
The Company:
(a) has not divulged and is not obliged to divulge any
Confidential Information to any person, other than to its
employees for the purpose of carrying on its business or on
written terms of confidence entered into in the ordinary
course of its business; and
(b) is not a party to any agreement or subject to any duty which
restricts the free use or disclosure by the Company of any of
the Confidential Information.
11.11 Data Protection Act
The Company has, if required to do so under the Data Protection Xxx
0000, duly notified under that Act in respect of all relevant aspects
of the business of the Company and has, so far as the Sellers are
aware, complied with the data protection principles as set out in that
Act.
11.12 IT definitions
In Warranties 11.13 to 11.18:
"Hardware" means all computer hardware, related peripherals and
equipment and apparatus, in each case, owned or used by the Company and
necessary in all material respects for the continued operation of the
business of the Group in substantially the same manner as carried on at
the date of this Agreement;
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"Owned Software" means all Software in which the Company owns
Intellectual Property;
"Software" means all computer programs, whether in object or source
code and their associated documentation and preparatory design
materials, in each case, owned or used by the Company and necessary in
all material respects for the continued operation of the business of
the Group in substantially the same manner as carried on at the date of
this Agreement; and
"System" means the Hardware and Software.
11.13 Software specifications
So far as the Sellers are aware, all Software conforms in all material
respects with its specification;
11.14 Source code
The Company has in its possession and control all source code relating
to the Owned Software, or such source code is subject to an escrow
agreement. Copies of all software source code escrow agreements to
which the Company is a party are disclosed.
11.15 Back-up copies
The Company's procedures for preventing unauthorised access to the
System, and for taking and storing on-site and off-site back-up copies
of the Software and any data owned or used by the Company are
disclosed.
11.16 Maintenance agreements
Copies of all agreements under which the System is maintained and
supported, which involve an annual expenditure of (E)5,000 or more
are disclosed.
11.17 Material breakdowns etc
During the 12 months prior to the date of this Agreement, the System
has operated without any material breakdown or material interruption.
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11.18 Viruses etc
So far as the Sellers are aware, reasonable steps have been taken by
the Company with a view to avoiding viruses and other extraneously
introduced malfunctions infecting the System.
12. CONTRACTS, COMMITMENTS, ETC.
12.1 Material contracts
All the contracts to which the Company is a party were entered into in
the ordinary course of business of the Company and were negotiated on
an arm's length basis.
12.2 No material breach of contract by Company
So far as the Sellers are aware, each contract to which the Company is
now a party is now valid and subsisting and the Sellers are not aware
of any subsisting breach of any of them which could lead to a claim for
compensation, damages, specific performance or an injunction being made
against the Company or which would entitle a third party to call in any
monies before the normal due date, which will in any such case
materially adversely affect the business of the Company. For the
purposes of this paragraph 12.2, the business of the Company shall be
deemed to be materially adversely affected if the amount that would
otherwise be recoverable arising from an individual breach as aforesaid
is (E)100,000 or more.
12.3 No grounds for termination of contract
The Sellers are not aware of the invalidity of or any grounds for
rescission, avoidance or repudiation of any agreement or other
transaction to which the Company is a party and the Company has not
received notice of any intention to terminate any such agreement or
repudiate or disclaim any such transaction.
12.4 No default by other contracting parties
So far as the Sellers are aware, no party with whom the Company has
entered into any contract or arrangement is in material default of it.
For the purposes of this Paragraph 12.4 a material default shall be
deemed to be an individual default where the amount that would
otherwise be recoverable as a result of that default is (E)100,000 or
more.
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12.5 No termination as a result of this Agreement
The Company is not a party to any contract which is material to the
financial or trading condition of the Group taken as a whole which, by
reason of the sale of Shares or any provision of this Agreement, under
its express terms thereof gives to any other contracting party the
right to terminate such contract.
12.6 No breach as a result of the acquisition
The acquisition of the Shares by the Purchaser or the entry into,
compliance with or completion of this Agreement will not:
(a) result in a breach of, or constitute a default under any
order, judgment or decree of any court or agency by which the
Company is bound or to which it is subject;
(b) result in a breach of or constitute a default under any
agreement or arrangement (other than agreements or
arrangements with customers or suppliers) to which the Company
is a party the value of which exceeds (E)100,000 or entitle
any person to terminate any such agreement or arrangement or
unilaterally amend such agreement or arrangement to the
detriment of the Group; or
(c) so far as the Sellers are aware, cause or be likely to cause
any officer or senior employee of the Company to leave his
employment.
12.7 Finder's Fee etc.
No person has received or is entitled to receive from the Company any
fee or benefit (including (without limitation) any finder's fee,
brokerage or commission) or the reimbursement of any expense in
connection with this Agreement.
12.8 Onerous contracts
So far as the Sellers are aware, the Company has not accepted any order
for the supply of any product to be delivered after 31 March 2001
which, at the date of acceptance of that order, would give rise to any
loss against the Company's standard cost after taking account of any
penalties for late delivery.
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12.9 Agency, distributorship, agreements.
Details of all subsisting material agency, distributorship and
franchise agreements are disclosed.
12.10 Partnerships and joint ventures
The Company is not currently and (so far as the Sellers are aware) has
never been a member of any partnership, joint venture, consortium or
other unincorporated association (other than the trade associations
full details of which are set out in the Disclosure Letter) nor (so far
as the Sellers are aware) has it agreed to become a member of any such
body.
12.11 Norba Agreement
Neither Norba AB nor any of its Subsidiaries have received payment from
any third party such that Xxxxxx Duffryn (International) Limited would
be obliged to make any payment to Partek Cargotec AB in accordance with
clause 12.2 of the Norba Agreement, which payment to Partek Cargotec AB
remains outstanding.
13. INSURANCE
13.1 Policies
Details of all the material insurance policies in which the Company has
an interest are set out in the Disclosure Letter.
13.2 Premiums paid
In respect of all of the Company's insurance policies:
(a) all premiums have been paid up to date;
(b) all the policies are in full force and effect and will be
maintained in full force and effect without alteration up to
Completion;
(c) so far as the Sellers are aware, there are no circumstances
which could lead to any liability under any of the policies
being avoided or any policy defence raised by the insurers or
to any of the policies being revoked or rendered void or
voidable;
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(d) there are no outstanding claims in excess of (E)42,000 under
any of the policies and, so far as the Sellers are aware,
there are no circumstances which are likely to give rise to
any such claim;
(e) no policy defences have been raised against any claim
currently outstanding under such policies notified to the
insurers (excluding, for the avoidance of doubt, specified
deductibles); and
(f) so far as the Sellers are aware, all incidents likely to give
rise to a claim under the Company's insurance policies have
been notified to the Company's insurers.
14. CONTRACTS WITH CONNECTED PERSONS
14.1 Related Party
There is not outstanding, and there has not at any time during the last
6 years been outstanding, any contracts, arrangements or understandings
to which any member of the Group or their Associates is, or was, a
party and in which any member of the Seller's Group or their respective
Associates is, or was, interested, other than in respect of the
Inter-Company Debt and Inter-Company Loans.
14.2 No significant interest
None of the Sellers nor the directors of the Company or any of their
respective Associates has any interest, direct or indirect, in any
business which competes with that now carried on by the Company except
as registered holder or beneficial owner of less than 3 per cent of any
class of securities listed on a recognised investment exchange.
15. EMPLOYEES
15.1 Details of employees
In relation to each employee of the Company there are contained in the
Disclosure Letter particulars or copies of:
(a) any standard form of particulars of employment applicable and
issued to employees;
109
(b) any written service or employment agreement for employees with
a basic salary in excess of
(E)75,000;
(c) his name, age, sex, job title and date of commencement of
employment (including any employment with a previous employer
which counts as continuous employment for the purposes of any
relevant employment legislation in the jurisdiction in which
the Company is incorporated);
(d) his rate of remuneration, bonus and commission, any other
material benefit of any kind to which he is entitled or which
is regularly provided or made available to him and his period
of notice; and
(e) any collective agreement or official collective bargaining
agreement affecting his terms of employment, including
disciplinary or grievance procedures and any procedures to be
followed in the case of redundancy or dismissal.
15.2 No employee benefits
The Company has no profit-sharing, share option or share incentive
schemes or other employee benefit plans in relation to any employee and
no collective bargaining agreements or agreements or arrangements with
any trade unions or works council established pursuant to the EC Works
Council Directive (94/45) relating to the employees or other bodies
representing employees except for those agreements currently in place
between the Company and AEEU at Llandrisant and with the staff
representative body at Ellesmere Port copies of which agreements are
contained in the Disclosure Letter.
15.3 All obligations fulfilled
So far as the Sellers are aware, the Company has complied with,
discharged and fulfilled all requirements, liabilities and obligations
(whether statutory or contractual) in relation to its employees
including all relevant legislation and codes of practice under any
applicable laws in relation to employment or employees and has paid all
relevant social security and national insurance contributions.
15.4 Notice periods
No employee or officer of the Company is entitled to more than three
months' notice to terminate his employment or engagement nor to any
compensation (other than statutory compensation) on termination of his
employment or engagement except as
110
provided for under mandatory law and/or collective bargaining
agreements in the relevant jurisdiction.
15.5 Amounts owed
There are no amounts owing by any of the Company's employees to the
Company.
15.6 No claims
No employee or officer or former employee or officer of the Company has
notified the Company in writing of any claim (including but not limited
to any claim in respect of an industrial accident) or grounds for such
a claim against the Company nor, so far as the Sellers are aware, is
there any likelihood of or grounds for such a claim being made where
such claim or potential claim remains outstanding
15.7 No disputes
The Company is not involved in any industrial dispute nor, so far as
the Sellers are aware, is any such dispute threatened or pending.
15.8 Formal recognition
No independent trade union has served or, so far as the Sellers are
aware, has indicated any intention to serve a request for formal
recognition under the provisions of Schedule A1 of the Trade Union and
Labour Relations (Consolidation) Xxx 0000.
15.9 Termination of Employment
No current officer or employee of the Company has given or received
written notice terminating his employment or engagement or is under
notice of dismissal or on maternity leave, paternal leave or long term
sick leave.
15.10 No compromise agreements
The Company has not entered into any compromise agreement with any
current or former officer or employee under which any payment is or
will be due to such officer or employee or to any person or body on his
behalf.
15.11 No contracts for service
There are no subsisting contracts (other than service or employment
agreements) in favour of any employee, director or officer of the
Company, and no subsisting
111
contracts for the provision by any individual of any consultancy
services to the Company.
16. PENSIONS
16.1 Paragraphs 16.2 to 16.16 only apply or refer to pension arrangements
operating in respect of Employees employed in the United Kingdom.
16.2 For the purposes of paragraphs 16.2 to 16.16:
"Employee" means a director or employee or former director or employee
of Geesink Norba Limited or Norba Limited;
"Lacre Scheme" means the Lacre PDE Limited Pension Fund & Life
Assurance Scheme;
"Norba Scheme" means the Norba Limited Retirement and Death Benefit
Scheme by a declaration of trust dated 24 March 2000;
"PD Plan" means the PD Pension Plan established by a trust deed dated
30 March 1949;
"Pension Schemes" means the PD Plan and the Norba Scheme.
16.3 Other than the Pension Schemes and the Lacre Scheme there are not in
operation at the date of this Agreement and no proposal has been
announced to enter into make or establish a superannuation, pension,
life assurance, death benefit scheme or arrangement (whether approved
or not) in respect of which either Geesink Norba Limited or Norba
Limited has any legally binding liability to contribute or an
obligation to any of its Employees or their dependants.
16.4 Details of the Pension Schemes have been disclosed to the Purchasers in
the form of true and complete copies of:
(a) the trust deed and rules or declaration of trust or other such
document currently governing the Pension Schemes;
(b) the current explanatory booklets issued to an Employee who is
or may become a member of either of the Pension Schemes;
(c) the audited accounts of the Pension Schemes for the last
scheme year; and
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(d) a list of the Employees who are members of the Pension Schemes
together with sufficient data to enable the Purchaser to
ascertain their benefit entitlements under the Pension
Schemes.
16.5 No discretion or power has been exercised under either of the Pension
Schemes in respect of an Employee to augment benefits, admit to
membership a person who would not otherwise have been eligible for
admission to membership, provide a benefit which would not otherwise be
provided or pay a contribution which would not otherwise have been
paid.
16.6 No plan, proposal or intention to amend, discontinue (in whole or in
part) or exercise a discretion in relation to either of the Pension
Schemes has been communicated to an Employee who is a member of either
of the Pension Schemes.
16.7 All contributions (including fees, charges and expenses of whatever
nature) which are payable by Geesink Norba Limited or Norba Limited
under the Pension Schemes and all contributions dues from members of
the Pension Schemes have been duly made and remitted and Geesink Norba
Limited or Norba Limited has fulfilled all its obligations in respect
of the Pension Schemes. All employer and member contributions due to
the Norba Scheme have been paid to the trustees in accordance with the
payments schedule (as required by, and defined in, section 87 of the
Pensions Act 1995).
16.8 The Pension Schemes are both exempt approved schemes within the meaning
of section 592 of the ICTA and the Sellers are not aware of any matter
which might give the Inland Revenue reason to withdraw approval.
16.9 The PD Plan is a contracted-out scheme within the meaning of the
Xxxxxxx Xxxxxxx Xxx 0000 and is contracted-out on a mixed benefit
basis.
16.10 The Norba Scheme is a contracted-out scheme within the meaning of the
Xxxxxxx Xxxxxxx Xxx 0000 and is contracted-out on a money-purchase
basis. The Norba Scheme is administered in accordance with the
contracting-out requirements of the Act.
16.11 No undertaking or assurance has been given to any Employee about the
continuation of the Pension Schemes or any alteration or exception from
their terms or the increase or improvement of benefits or the exercise
of any discretion.
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16.12 No Employee or former Employee has been:
(a) excluded from membership of the Pension Schemes; or
(b) provided with different benefits under the Pension Schemes
because of their sex or because they are or were employed on a
part-time basis and no transfer payment has been received from another
pension arrangement which provided different benefits for such a
reason.
16.13 Each benefit (except a refund of contributions) payable under the Norba
Scheme on the death of a member of that Scheme or during periods of
sickness or disability of the member is, at the date of this Agreement,
fully insured under a policy of insurance with an insurance company of
good repute.
16.14 There is no civil, criminal, arbitration, administrative or other
proceeding or dispute (which includes, without limitation, contact with
OPRA or OPAS or the Pensions Ombudsman) concerning the Norba Scheme by
or against the trustees or administrator of the Norba Scheme or Norba
Limited and the Sellers are not aware that any is pending or
threatened.
16.15 The Norba Scheme complies in all material respects with the
requirements of the Pensions Xxx 0000.
16.16 The winding up of the Lacre Scheme has commenced and Geesink Norba
Limited has no liability to pay any contributions, fees, charges or
expenses of whatsoever nature (including any liability under section 75
of the Pensions Act 1995) in respect of the Lacre Scheme.
16.17 Paragraphs 16.17 to 16.20 apply to pension arrangements operating in
respect of Employees employed outside the United Kingdom. These
provisions do not derogate from any specific provisions concerning
non-UK pensions made elsewhere in this agreement.
16.18 "Non-UK Pension Arrangements" means any superannuation, pension, life
assurance, death benefit scheme or arrangement in respect of any
employee or employees of the Company employed outside the United
Kingdom (or any former employees of the Company employed outside the
United Kingdom) other than state or other mandatory arrangements.
114
"Contributions" includes any contributions payable in respect of the
Non-UK Pension Arrangements together with fees, charges and expenses of
whatever nature.
16.19 There is not in operation at the date of this Agreement and no proposal
has been announced to enter into make or establish any Non-UK Pension
Arrangement other than those arrangements which have been disclosed to
the Purchasers in writing.
16.20 All contributions which are payable by the Company to or in respect of
the Non-UK Pension Arrangements and all contributions due from
employees have been duly made and remitted.
17. TAXATION MATTERS
17.1 Taxation paid
The Company has duly and punctually paid all Taxation which it is or
has been liable to pay or account for prior to the date of this
Agreement. The Disclosure Letter sets out with specific reference to
this paragraph all payments of corporation tax payable by the Company
pursuant to the Corporation Tax (Instalment Payments) Regulations 1998
or otherwise within the period of 9 months after Completion.
17.2 The Company has duly and punctually made and filed all returns which
ought to have been filed and has given or delivered all notices and
accounts and information which on or before the date of this Agreement
ought to have been made, given or delivered for the purposes of
Taxation or which have been assumed to have been made, given or
delivered for the purposes of the Accounts, and all such returns,
notices, accounts and information were and will remain at Completion
true, complete and accurate in all material respects and none of them
is yet to be determined by or is subject to agreement with any Taxing
Authority.
17.3 No disputes
There is no material dispute or disagreement outstanding nor so far as
the Seller is aware are there any circumstances at the date of this
Agreement which may give rise to such dispute or disagreement with any
Taxing Authority in respect of the Company.
115
17.4 No substitution of consideration
The Company has not in the six years ending on the date of this
Agreement carried out or been engaged in any transaction or arrangement
in respect of which there has been or may be substituted for the
consideration given or received by it (including at nil consideration)
a different consideration for Taxation purposes.
17.5 Residence
The Company has since its incorporation been resident for the purposes
of Taxation in its country of incorporation only and (a) has not been
resident in any other jurisdiction for Taxation purposes, (b) has never
paid or become liable to pay Taxation on income, profits or gains to
any Taxing Authority outside that country of incorporation or become
liable to register for the foreign equivalent of VAT outside that
country of incorporation and (c) has never traded outside that country
of incorporation through a permanent establishment, branch or agency
(save for the branches of Geesink BV in Germany, Italy, Spain and
France).
17.6 Company registered under VATA
The Company is duly registered for value added tax purposes and has
complied with all relevant provisions of VATA and regulations made or
notices issued under any legislation relating to VAT.
17.7 Tax Provisions
The provisions or reserves for Taxation in the Consolidated Accounts
(other than deferred Taxation) are sufficient (on the basis of the
rates of Taxation current at the date thereof) to cover all Taxation
for which the Company was at the Balance Sheet Date or may after that
date become or have become liable on or in respect of or by reference
to any profits gains or income (whether deemed or actual) for any
period ended on or before the Balance Sheet Date or in respect of any
distribution or transaction made or entered into or deemed to be made
or entered into on or before the Balance Sheet Date.
17.8 All payments made by the Company to any person which ought to have been
made under deduction of Tax have been so made and the Company has (when
required to do so) provided certificates of deduction to such persons
and properly accounted to the relevant Taxing Authority in full for all
amounts so deducted.
116
17.9 The Company is not and has not within the last six years been the
subject of an investigation audit or visit by any Taxing Authority;
neither the Sellers nor the Company has at the date hereof been
notified that any such investigation audit or visit is planned in the
next twelve months.
17.10 The Company is not and will not become liable to pay or make
reimbursement or indemnity in respect of or corresponding to Taxation
in consequence of the failure by any other person to discharge that
Taxation or amount within any specified period or otherwise, where such
Taxation or amount relates to a profit, income or gain, transaction,
event, omission or circumstance arising or deemed to arise in whole or
in part prior to Completion.
17.11 The Company is not subject to any contractual liability to indemnify
any person in respect of Taxation.
17.12 The Company has not engaged in or been party to any scheme or
arrangement designed wholly or partly for the purpose of avoiding,
deferring or reducing Taxation and no scheme or transaction of any
nature has been carried out by or proposed in relation to the Company
which has given rise or which could give rise to a charge to Taxation.
17.13 The Company has not been party to any preordained series of
transactions containing one of more steps which have no commercial
purpose other than avoiding, deferring or saving tax or the obtaining
of a tax advantage.
17.14 General
The execution or completion of this Agreement or any other event since
the Balance Sheet Date will not result in any profit or gain being
deemed to accrue to the Company for Taxation purposes.
17.15 Group Payment
The Company has not been a party to any group arrangement for payment
of liability to Tax.
117
18. PROPERTIES
18.1 Title
The Properties comprise all the estate or interest of the Company in
any land or premises.
18.2 Possession of deeds
The Company has in it possession or under its control all duly stamped
deeds and documents which are necessary to prove title to, or right of
use of, the Properties.
18.3 The Company is in physical possession and actual occupation of the
whole of the Properties on an exclusive basis and no right of
occupation or enjoyment has been acquired or is in the course of being
acquired by any third party or has been granted or agreed to be granted
to any third party.
18.4 The Company has good title to each of the Properties and so far as the
Seller is aware there is nothing which renders the Properties
unmarketable.
18.5 There are no agreements to give or create any encumbrances over the
Properties and the Seller has disclosed in the Disclosure Letter all
documents and other matters relevant to ascertaining what encumbrances
affect each of the Properties.
18.6 None of the Properties nor the Company as owner or occupier thereof
enjoys precariously any right, easement or privilege the withdrawal or
cessation of which would have a detrimental effect on the use or
continued use of any of the Properties for the purpose for which it is
now used.
18.7 The Company has not received any written notice alleging failure to
comply with all applicable statutory and other requirements relating to
each of the Properties including requirements relating to planning,
development, fire safety and health and safety at work and so far as
the Sellers are aware there are no circumstances that might give rise
to such notice being given.
18.8 The Company has not received any written notice from any lessor,
government body or any other person alleging a breach of any of the
following:
(a) the covenants, conditions, restrictions or agreements or other
matters subject to which any of the Properties are held;
118
(b) the provisions or requirements of any permissions, licences,
approvals, by-laws, orders, regulations or other requirements
or obligations affecting or likely to affect each of the
Properties or its current use;
and, so far as the Sellers are aware, there are no circumstances that
might give rise to the right for such persons to give any such notice.
18.9 So far as the Sellers are aware, none of the Properties nor the Company
as owner or occupier thereof is affected by any of the following
matters:
(a) any closing order, demolition order or clearance order;
(b) any enforcement notice;
(c) any order or proposal either publicly advertised or of which
written notice has been received for the compulsory
acquisition or requisition of the whole or any part thereof or
the modification of any planning permission or the
discontinuance of any use or the removal of any building; or
(d) any agreement with any planning authority, statutory
undertaker or privatised utility or other public body or
authority restricting the use or development thereof.
18.10 All development of each of the Properties has been carried out in all
respects in accordance with the Planning Acts.
18.11 In respect of each of the Properties that are leasehold or held on
licences:
(a) each of the Properties is held under the terms of the lease or
licence brief details of which are given in Schedule 6;
(b) so far as the Sellers are aware, the Company has paid the
rent, service charge and any other payment due under the lease
or licence in full and duly observed and performed any
covenants on the part of the tenant or licensee and the
conditions contained in the lease or licence to a material
degree; where "material degree" means to a degree where any
claim available to the landlord in respect of any particular
failure to observe and perform is worth less than 100,000
Euros and the landlord is not able unilaterally to determine
the lease or licence as a result of any such failure;
119
(c) all licences, consents and approvals required from the
landlord or licensor have been obtained and the covenants on
the part of the tenant or licensee contained in the licences,
consents and approvals have been duly performed and observed;
(d) there are no rent review negotiations currently in progress;
and
(e) there are no unusual items of expenditure expected to be
charged via the service charge in any lease or licence.
18.12 The Properties are not subject to any outgoings other than business
rates and water rates and (in the case of those of the Properties that
are leasehold or held on licences) the rent, insurance rent, service
charges or licence fees payable under any lease or licence of any of
the Properties and all outgoings have been paid and none is disputed.
18.13 There are no disputes affecting any of the Properties or their use and
so far as the Sellers are aware there are no circumstances that might
give rise to any.
18.14 There are no properties (other than the Properties) in respect of which
the Company has any existing or contingent material liability, whether
or not such properties were previously owned or occupied by the Company
and including without limitation premises assigned or otherwise
disposed of or in respect of which it guaranteed the liabilities of any
third party or otherwise; where "material liability" means liability in
excess of 100,000 Euros.
18.15 The current uses of the Properties are permitted under planning
legislation.
19. ENVIRONMENT
19.1 Compliance
So far as the Sellers are aware, the Company has complied in all
material respects with all Environmental Laws at the Properties which
are applicable to the conduct of all or any part of the operations of
the Company, and the Sellers have not received any material written
formal complaint from any court or statutory body with legally
enforceable powers in relation to the Environment, alleging any
material non compliance with such Environmental Laws.
120
19.2 So far as the Sellers are aware, there are no current circumstances
that cause the Sellers to be in breach of any of the Environmental Laws
or would cause them to be in breach were they to remain the owner of
the Company.
19.3 So far as the Sellers are aware, there are no current circumstances
affecting the Company that justify the imposition of any requirement by
a competent authority in accordance with such authority's powers and
obligations under the Environmental Laws which would if the requirement
were not complied with result in there being a breach of Environmental
Laws.
19.4 There are no past nor have the Sellers received any written notice of
any pending or threatened, proceedings or claims against the Sellers
brought under the Environmental Laws before any court, arbitrator or
other competent body.
19.5 All necessary Environmental Permits required for the lawful and safe
conduct of the business of the Company as carried out at the date of
this Agreement have been obtained and maintained (including the meeting
of any obligation to make payment in respect of the grant or
subsistence of the Environmental Permits) by the Sellers. So far as the
Sellers are aware, all conditions, restrictions and obligations
contained in the Environmental Permits have been complied with and, so
far as the Sellers are aware, there is no reason why any such
Environmental Permits should be or may be revoked or amended.
19.6 No part of the Properties has been designated contaminated land within
the meaning of section 57 of the Environment Xxx 0000 (or analogous
legislation outside the United Kingdom) nor so far as the Sellers are
aware:
(a) would any part of the Properties be so designated; nor
(b) is any part of the Properties otherwise contaminated to any
material degree (whether by the deposit, spillage or disposal
or leaching of any hazardous or toxic material, or other
pollutant or otherwise) and, so far as the Sellers are aware,
as a result of any such contamination no part of the
Properties represents a hazard to health or to the Environment
assuming neither the Properties (nor any part of them) are
developed or otherwise put to use in ways differing from the
current operations carried out on the Properties.
121
19.7 So far as the Sellers are aware:
(a) there are no circumstances which will give rise or have in the
past given rise to any liability (whether under statute or at
common law) in nuisance in respect of the Properties or the
operation of the business of the Company; and
(b) the carrying on of the business of the Company has not
interfered in any way with the extraction and use of ground
water from aquifers.
19.8 So far as the Sellers are aware, no third party (including (without
limitation) any previous owners of any part of the Properties) has
committed any act which has resulted in any liability under
Environmental Laws or under common law being incurred by that third
party in respect of nuisance caused in relation to the Properties or
the business of the Company.
19.9 The condition of the soil and groundwater at any of the Properties does
not at the present time adversely affect the ability of the Company to
carry on its business.
20. HEALTH & SAFETY
20.1 So far as the Seller is aware, the Company has complied in all material
respects with all applicable laws, regulations and legally binding and
approved codes of practice made or issued by national or local
government or by any regulatory body or by any court in each case with
legally enforceable powers relating to the prevention of accidents and
of injury to employees and to lawful and unlawful visitors to the
Properties that are in existence at the date of this Agreement and are
legally enforceable ("the Health and Safety Laws") both in respect of
the activities undertaken at the date of this Agreement at the
Properties and in respect of the Properties themselves at the date of
this Agreement. For the purposes of this Paragraph 20.1 the Company
shall be deemed not to have complied in a material respect with a
particular Health and Safety Law if the amount that would otherwise be
recoverable arising from that instance of non-compliance is
(E)100,000 or more.
20.2 So far as the Sellers are aware, there are no outstanding prohibitions
and/or improvement notices under the Health and Safety Laws affecting
the Company, nor have there been in the past, and so far as the Sellers
are aware there are currently no pending, proceedings against the
Company under the Health and Safety Laws which have had or which would,
with respect to any such pending proceedings, necessarily
122
in the event of a judgement, decision or order being unfavourable to
the Company, adversely affect the financial or trading position of the
Company.
20.3 There is in force a health and safety policy and, where appropriate,
risk assessments, relating to the activities of the Company at each of
the Properties which has been communicated to the employees and which
are reviewed from time to time and which comply with the requirements
of the Health and Safety Laws.
21. COMPETITION
21.1 So far as the Sellers are aware, the Company is not and has not been
directly or indirectly concerned in or a party to any agreement,
arrangement, transaction or practice or pursued any course of conduct
or done or omitted to do any act or thing which is :
(a) capable of giving rise to an investigation by the Director
General of Fair Trading under the Competition Xxx 0000 or the
Fair Trading Act 1973 or a reference to the Competition
Commission under the Fair Trading Xxx 0000;
(b) in breach of any provision of the EC Treaty, the Fair Trading
Xxx 0000, the Competition Xxx 0000, or any other competition
or anti-trust law or legislation applicable in the United
Kingdom or any other jurisdiction in which the Company carries
on business; or
(c) required to be filed with or notified to any person, or which
is unenforceable or void or renders the Company or any of its
officers or employees liable to administrative, civil or
criminal proceedings, under any competition or anti-trust
legislation applicable in the United Kingdom or any other
jurisdiction in which the Company carries on business.
123
Part 2 - Dutch Warranties
1. TAXATION MATTERS
1.1 Geesink Group B.V. and its Dutch Subsidiaries are joint in the fiscal
unity Xxxxxx Duffryn Holdings B.V. for corporate tax purposes and no
liability for tax will arise for the period the Geesink Group B.V. and
the Dutch Subsidiaries are included in the fiscal unity Xxxxxx Duffryn
Holdings B.V., as a result of Geesink Group B.V. ceasing to form part
of that fiscal unity as a result of the sale of the Shares in Geesink
Group B.V. pursuant to this Agreement. Neither Geesink Group B.V. nor
any of the Dutch Subsidiaries will be held liable pursuant to article
39 of the Collection Act ("Invorderingswet") for any liability to tax
of Xxxxxx Duffryn Holdings B.V.
1.2 No asset, for which an investment premium or any other premium has been
claimed in The Netherlands, has been disposed of by Geesink Group B.V.
or any of the Dutch Subsidiaries.
1.3 The companies that have formed part of the fiscal unity of Xxxxxx
Duffryn Holdings B.V. for Dutch corporate income tax purposes
(Vennootschapsbelasting) have each fully duly and timely paid to
Geesink Group B.V., Geesink B.V. or Xxxxxx Duffryn Holdings B.V., the
corporate income taxes due on their share of the taxable profits up to
the Completion Date that have been or will be taxed on fiscal unity
level.
1.4 Neither Geesink Group B.V. nor any of the Dutch Subsidiaries has
received a notice under section 49 of the Collection Xxx 0000.
1.5 Neither Geesink Group B.V. nor any of the Dutch Subsidiaries have
contracted or for Dutch corporate income tax purposes will be deemed to
have contracted one or more loans of which the interest charges have
not been or will not be deductible for Dutch corporate income tax
purposes.
1.6 The corporate income tax returns for the financial years 1999/2000 and
2000/2001 of the fiscal unity, to which Geesink Group B.V. and the
Dutch Subsidiaries belonged, will be prepared on a basis which is
consistent ("volgens een bestendige gedragslijn") with the corporate
income tax returns filed for the years prior to 1999/2000.
1.7 No Dutch real estate transfer tax or Dutch capital tax is liable or may
become liable to be paid by Geesink Group B.V. or any of the Dutch
Subsidiaries as a direct result of any reorganisation imposed by the
Guarantor or any member of the Guarantor's Group or as a direct result
of Completion.
124
Part 3 - Swedish Warranties
1. SUBSIDIARIES, PARTNERSHIPS ETC.
Norba AB's ownership of shares in the Swedish company Industriellt
Utvecklingscentrum i Monsteras AB (registration number 556562-5018)
does not imply any undertakings, financial or otherwise, of Norba AB.
Furthermore, Industriellt Utvecklingscentrum i Monsteras AB is not a
subsidiary (nor deemed to be a subsidiary in any respect) to Norba AB
under Swedish law.
2. INTELLECTUAL PROPERTY
There are no outstanding or potential claims against the Company under
any contract relating to employee compensation for inventions, or under
the provisions relating to employee compensation under the Swedish
Employee's Inventions Act of 1949 (lag 1949:345 on ratten till
arbetstagares uppfinningar), the Swedish Copyright in Literary and
Artistic Works Act of 1960 (lag 1960:729 om upphovsratt till litterara
och konstnarliga verk) or the Swedish Design Protection Act of 1970
(monsterskyddslagen 1970:485) and no employee is entitled to any award
or compensation in respect thereof under such legislation. All
Intellectual Property brought into existence by employees of Norba AB
acting in the course of their employment which is currently being used
by Norba AB, is owned by Norba AB, whether by virtue of express
agreements to this effect or by operation of law. No consultant of
Norba AB is claiming to own any Intellectual Property which is used by
Norba AB (other than where Norba AB has an express licence to use the
same).
3. PERSONAL DATA ACT
So far as the Sellers are aware, Norba AB has to the extent required by
the nature of its business complied with all regulations of the Swedish
Personal Data Act (personuppgiftslagen 1998:204) and/or the Swedish
Data Act (datalagen 1973:289).
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Part 4 - Spanish Warranties
1. CORPORATE MATTERS
Compliance with corporate legislation
Geesink BV in respect of its branch in Spain has complied in all
respects with the Spanish Commerce Code ("Codigo de Comercio"),
Commercial Registry Regulations ("Reglamento del Registro Mercantil")
and all returns, particulars, resolutions and other documents required
under any such legislation to be delivered on behalf of Geesink BV in
respect of its branch in Spain.
2. INTELLECTUAL PROPERTY
2.1 Employees/Consultants
There are no outstanding or potential claims against Geesink BV in
respect of its branch in Spain under any contract relating to employee
compensation for inventions, or under the provisions relating to
employee compensation under the Spanish Patents Xxx 0000 and no
employee is entitled to any award or compensation in respect thereof
under the Spanish Patents Xxx 0000. All Intellectual Property brought
into existence by employees of Geesink BV in respect of its branch in
Spain acting in the course of their employment which is currently being
used by Geesink BV, is owned by Geesink BV, whether by virtue of
express agreements to this effect or by operation of law. No consultant
of Geesink BV in respect of its branch in Spain is claiming to own any
Intellectual Property which is used by Geesink BV (other than where
Geesink BV has an express licence to use the same).
2.2 Data Protection Act
Geesink B.V. in respect of its branch in Spain has, if required to do
so under the Spanish Data Protection Xxx 0000, duly notified under that
Act in respect of all relevant aspects of the business of such branch
and has, so far as the Sellers are aware, complied with the data
protection principles as set out in that Act.
3. TAXATION MATTERS
Geesink B.V. in respect of its branch in Spain is duly registered for
value added tax purposes and has complied with all relevant provisions
of the Spanish VAT Act and regulations made or notices issued under any
legislation relating to VAT.
126
4. ASSEMBLY OF PRODUCTS
The assembly of products in Spain has not been contracted to any
company other than Revol X.X. Xxxxxxx BV has not received written
notice that Revol S.A. is not up to date with the payment of salaries
to its employees, the payment of contributions to the Spanish Social
Security System or is not compliant with all relevant health and safety
matters.
127
Part 5 - German Warranties
1. INTELLECTUAL PROPERTY
1.1 Employees/Consultants
There are no outstanding or potential claims against Geesink BV in
respect of its branch in Germany under any contract relating to
employee compensation for inventions, or under the provisions relating
to employee compensation under the German Copyright Act
(Urhebergesetz), the German Employee's Invention Act
(Arbeitnehmererfindungsgesetz), the German Registered Designs Act
(Geschmacksmustergesetz) or the German Semiconductor Protection Act
(Halbleiterschutgestez) and no employee is entitled to any award or
compensation in respect thereof under such legislation. All
Intellectual Property brought into existence by employees of Geesink BV
in respect of its branch in Germany acting in the course of their
employment which is currently being used by Geesink BV, is owned by
Geesink BV, whether by virtue of express agreements to this effect or
by operation of law. No consultant of Geesink BV in respect of its
branch in Germany is claiming to own any Intellectual Property which is
used by Geesink BV (other than where Geesink BV has an express licence
to use the same).
1.2 Data Protection Act
The Company has, so far as the Sellers are aware, complied with the
German Data Protection Act (Bundesdatenschutzgesetz).
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Part 6 - French Warranties
1. INTELLECTUAL PROPERTY
1.1 Employees/Consultants
There are no outstanding or potential claims against Geesink BV in
respect of its branch in France under any contract relating to employee
compensation for inventions, or under the provisions relating to
employee compensation under L677-7 et seq of the French Intellectual
Property Code and no employee is entitled to any award or compensation
in respect thereof under L677-7 et seq of the French Intellectual
Property Code. All Intellectual Property brought into existence by
employees of Geesink BV in respect of its branch in France acting in
the course of their employment which is currently being used by Geesink
BV, is owned by Geesink BV, whether by virtue of express agreements to
this effect or by operation of law. No consultant of Geesink BV in
respect of its branch in France is claiming to own any Intellectual
Property which is used by Geesink BV (other than where Geesink BV has
an express licence to use the same).
1.2 Data Protection Act
Geesink B.V. in respect of its branch in France has, if required to do
so under French Law number 78-17 of 6 January 1978, duly notified under
that Law in respect of all relevant aspects of the business of Geesink
B.V. in respect of its branch in France and has, so far as the Sellers
are aware, complied with the data protection principles as set out in
that Law.
2. EMPLOYEES
In respect of the branch of Geesink B.V. in France, no independent
trade union has served or, so far as the Sellers are aware, has
indicated any intention to serve a request for formal recognition under
the provisions of Art L 412 et seq of the French Labour Code.
3. TAXATION MATTERS
Geesink B.V. in respect of its branch in France is duly registered for
value added tax purposes and has complied with all relevant provisions
of the Xxxxxx Xxxxxxx Tax Code and regulations made or notices issued
under any legislation relating to VAT.
129
4. COMPETITION
So far as the Sellers are aware, the Company is not and has not been
directly or indirectly concerned in or a party to any agreement,
arrangement, transaction or practice or pursued any course of conduct
or done or omitted to do any act or thing which is registrable under or
capable of giving rise to an investigation by the French equivalent of
the Director General of Fair Trading under Book IV of the French
Commercial Code.
130
Part 7 - Italian Warranties
1. INTELLECTUAL PROPERTY
1.1 Employees/Consultants
There are no outstanding or potential claims against Geesink BV in
respect of its branch in Italy under any contract relating to employee
compensation for inventions, or under the provisions relating to
employee compensation under article 23 of Italian Law no 1127 of 29
June 1939, as subsequently amended (the "Italian Patent Law") and no
employee is entitled to any award or compensation in respect thereof
under article 23 of the Italian Patent Law. All Intellectual Property
brought into existence by employees of Geesink BV in respect of its
branch in Italy acting in the course of their employment which is
currently being used by Geesink BV, is owned by Geesink BV, whether by
virtue of express agreements to this effect or by operation of law. No
consultant of Geesink BV in respect of its branch in Italy is claiming
to own any Intellectual Property which is used by Geesink BV (other
than where Geesink BV has an express licence to use the same).
1.2 Data Protection Act
Geesink B.V. in respect of its branch in Italy has, if required to do
so under Italian Law no 675 of 31 December 1996, duly notified under
that Law in respect of all relevant aspects of the business of Geesink
B.V. in respect of its branch in Italy and has, so far as the Sellers
are aware, complied with the data protection principles as set out in
that Law.
2. TAXATION MATTERS
Geesink B.V. in respect of its branch in Italy is duly registered for
value added tax purposes and has complied with all relevant provisions
of the Italian Legislative Decree no 633 of 26 October 1972, as
subsequently amended.
3. COMPETITION
So far as the Sellers are aware, the Company is not and has not been
directly or indirectly concerned in or a party to any agreement,
arrangement, transaction or practice or pursued any course of conduct
or done or omitted to do any act or thing which is registrable under or
capable of giving rise to an investigation by the Autorita
131
Garante della Concorrenza e del Mercato pursuant to Law no 287 of 10
October 1990, as subsequently amended.
4. INSOLVENCY
Geesink BV, in respect of its branch in Italy, is not insolvent or
unable to pay its debts in accordance with article 5 of Law no. 267 of
March 16, 1942 as subsequently amended (the "Bankruptcy Law"), no
petition for bankruptcy or other bankruptcy related procedure has been
filed under the Bankruptcy Law and the branch has not been admitted to
bankruptcy or other related procedure under the Bankruptcy Law.
132
Part 8 - Danish Warranties
1. INSOLVENCY
1.1 No winding-up petition
No order has been made or petition presented or resolution passed for
the winding up of Norba A/S or for an administration order in respect
of Norba A/S not has any distress execution or other process been
levied on any of its assets nor has it stopped payment nor is it
insolvent or unable to pay its debts for the purposes of Section 17,
paragraph 2 of the Danish Bankruptcy Act (Konkurslov, as amended).
2. INTELLECTUAL PROPERTY
There are no outstanding or potential claims against Norba A/S under
any contract or under any of the Danish provisions of law or
regulations, relating to the employee compensation for inventions made
in work, and no employee is entitled to any award or compensation in
respect thereof.
3. PERSONAL DATA PROTECTION ACT
So far as the Sellers are aware, Norba A/S has in its line of business
complied with all provisions of the Danish Personal Data Protection Act
of 2000 (Personoplysningslov 2000 249).
4. FORMAL RECOGNITION
In respect of Norba A/S, no independent trade union has served or, so
far as the Sellers are aware, has indicated any intention to serve a
request for formal recognition under the provisions of Collective
Bargaining Agreement (Hovedaftale).
5. TAXATION MATTERS
Norba A/S is duly registered for value added tax purposes and has
complied with all relevant provisions of the Danish Value Added Tax Act
(Momsloven, as amended) and regulations made or notices issued under
any legislation relating to VAT.
133
6. COMPETITION
So far as the Sellers are aware, Norba A/S is not and has not been
directly or indirectly concerned in or a party to any agreement,
arrangement, transaction or practice or pursued any course of conduct
or done or omitted to do any act or thing which is registrable or
capable of giving rise to an investigation by the Danish Competition
Authority under the Danish Competition Act (Konkurrencelov).
134
Part 9 - Polish Warranties
1. SHARES AND SHARE CAPITAL
1.1 Transactions at an undervalue
None of the shares in Geesink sp.zo.o was, or represents assets which
were, the subject of a transfer at an undervalue (within the meaning of
the Polish Act of 15 September 2000 on the Code of Commercial
Partnerships and Companies, the Regulation by the President of the
Republic of Poland of 24 October 1934 on the bankruptcy law, and the
Regulation of the President of the Republic of Poland of 24 October
1934 on the Arrangement Proceedings Law (as amended, as well as any
relevant decrees, ordinances and regulations)) or any other transaction
capable of being set aside or varied under any insolvency laws within
the past five years.
2. INSOLVENCY
2.1 No winding up petition
No order has been made or petition presented or resolution passed for
the winding up of Geesink sp.zo.o or for an administration order in
respect of Geesink sp.zo.o nor has any distress execution or other
process been levied on any of its assets nor has it stopped payment nor
is it insolvent or unable to pay its debts for the purposes of the Act
of 15 September 2000 on the Code of Commercial Partnerships and
Companies, or the regulation by the President of the Republic of Poland
on 24 October 1934 on the bankruptcy law (as amended, or any other
relevant decrees, ordinances or regulations).
2.2 No arrangements
Geesink sp.zo.o has not at any time been a party to or subject to or
applied for:
(a) the sanctioning under the Act of 15 September 2000 on the Code
of Commercial Partnerships and companies, the Regulation by
the President of the Republic of Poland of 24 October 1934 on
the bankruptcy law, the Regulation of the President of the
Republic of Poland of 24 October 1934 on Arrangement
Proceedings Law (all as amended, as well as any relevant
decrees, ordinances and regulations) of a compromise or
arrangement between it and any such persons as are mentioned
in these laws or the making of any other compromise with its
creditors; or
135
(b) the appointment of any receiver (including an administrative
receiver as defined in the Act of 15 September 2000 on the
Code of Commercial Partnerships and Companies, the Regulation
by the Republic of Poland of 24 October 1934 on the bankruptcy
law, the Regulation by the Republic of Poland of 24 October
1934 on Arrangement proceedings Law (all as amended, as well
as any relevant decrees, ordinances and regulations)) over all
or any or any part of its property or assets.
3. INTELLECTUAL PROPERTY
3.1 Employees/Consultants
There are no outstanding or potential claims against Geesink sp.zo.o
under any contract relating to employee compensation for inventions, or
under the provisions relating to employee compensation under the Polish
Act of 4 February 1994 on Copyright and Neighbouring Rights and the
copyright and patents provisions of the Polish Act of 23 April 1964
(the Civil Code) (as amended, as well as any relevant decrees,
ordinances and regulations) and no employee is entitled to any award or
compensation in respect thereof under such legislation. All
Intellectual Property brought into existence by employees of Geesink
sp.zo.o acting in the course of their employment which is currently
being used by Geesink sp.zo.o, is owned by Geesink sp.zo.o, whether by
virtue of express agreements to this effect or by operation of law. No
consultant of Geesink sp.zo.o is claiming to own any Intellectual
Property which is used by Geesink sp.zo.o (other than where Geesink
sp.zo.o has an express licence to use the same).
3.2 Data Protection Act
Geesink sp.zo.o has, if required to do so under the Polish Act of 29
August 1997 on the Protection of Personal Data (as amended, or any
other relevant decrees, ordinances and regulations), duly notified
under that Act in respect of all relevant aspects of the business of
the Company and has, so far as the Sellers are aware, complied with the
data protection principles as set out in that Act.
4. EMPLOYEES
In respect of Geesink sp.zo.o, no independent trade union has served
or, so far as the Sellers are aware, has indicated any intention to
serve a request for formal recognition under the provisions of the
Polish Act of 26 June 1974: the Polish Labour Code and the Polish Law
of 23 May 1991 on Trade Unions (as amended, as well as any relevant
decrees, ordinances and regulations).
136
5. TAXATION MATTERS
Geesink sp.zo.o is duly registered for value added tax purposes and has
complied with all relevant provisions of the Polish Act of 8 January
1993 on Goods and Services Tax and Excise Duty (as amended, as well as
any relevant decrees, ordinances and regulations) and regulations made
or notices issued under any legislation relating to VAT.
6. COMPETITION
So far as the Sellers are aware, Geesink Sp.z o.o is not and has not
been directly or indirectly concerned in or a party to any agreement,
arrangement, transaction or practice or pursued any course of conduct
or done or omitted to do any act or thing which is registrable under or
capable of giving rise to an investigation under the Polish Act of 15
December 2000 on the Protection of Competition and Consumers, the
anti-competitive provisions of the Polish Act of 23 April 1964 (the
Civil Code) and the Polish Act of 16 April 1993 on Suppression of
Unfair Competition (as amended, as well as any relevant decrees,
ordinances and regulations).
137
SCHEDULE 5
LIMITATIONS ON CLAIMS
1. PURCHASERS TO NOTIFY POTENTIAL CLAIMS
1.1 If the Purchasers, the Companies, the Subsidiaries or any of them
becomes aware of any fact, matter, event or circumstance by virtue of
which the Sellers are or are reasonably likely to become liable to make
any payment under any of the Warranties or any other provision of this
Agreement the Purchasers shall as soon as practicable after becoming
aware (and in any event in relation to claims under Paragraph 17
(Taxation) of Part 1 of Schedule 4 (Warranties) and the Environmental
Warranties within 10 Business Days and in respect of all other claims
within 30 Business Days) notify the Sellers in writing specifying in
reasonable detail the fact, matter, event or circumstance giving rise
(or which is reasonably likely to give rise) to that liability and
giving an estimate (if reasonably practicable) of the amount which may
be claimed against the Sellers in respect of that liability.
Notification pursuant to the terms of this Clause shall not be a
condition of the Sellers' liability.
1.2 For the purposes of Paragraph 1.1 above, the Purchasers, the Companies,
the Subsidiaries or any of them shall be deemed to have become aware of
any fact, matter, event or circumstance when:
(a) in the case of a fact, matter, event or circumstance relating
to the Environmental Warranties, any of the general counsel,
the chief financial officer or the director of environmental
affairs (or relevant equivalent) from time to time of the
Purchasers' Guarantor (being for the time being Xxxxxxx
Xxxxxxx, Xxxxxxx Xxxxx and Xxx Xxxxxxx respectively) or the
managing director (or relevant equivalent) of the Group from
time to time (being for the time being Xxxx Xxxxxx) or any
manager at any Property from time to time with day to day
responsibility for environmental affairs; and
(b) in all other cases, any of the general counsel, the chief
financial officer or the chief executive officer (or relevant
equivalent) of the Purchasers' Guarantor from time to time
(being for the time being Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxx and
Xxxxxx Xxxx respectively) or the managing director (or
relevant equivalent) of the Group from time to time (being for
the time being Xxxx Xxxxxx), become actually aware of the
same.
138
2. TIME LIMIT ON CLAIMS
2.1 No claim shall be brought by the Purchasers under the Warranties or the
Tax Deed unless they shall have given notice in writing of that claim
specifying (in reasonably sufficient detail) the matter giving rise to
the claim, the nature of the claim and so far as practicable the amount
claimed (with a breakdown of the aggregate loss alleged to have been
suffered if possible) to the Sellers not later than:
(a) in the case of a claim relating to Taxation in respect of a
Company or Subsidiary, the expiry of a period commencing on
the Completion Date and ending one year after the expiry of
the relevant statutory limitation period relating to Taxation
in the jurisdiction in which the relevant Company or
Subsidiary (which is the subject of the claim under this
Agreement or the Tax Deed) is resident for Tax Purposes;
(b) in the case of a claim relating to the Environmental
Warranties the expiry of a period of:
(i) in respect of any Disclosed Environmental Matter
dealing with contamination of the soil and/or
groundwater at the Norba AB Properties, the expiry of
a period of seven (7) years, commencing on the
Completion Date;
(ii) in respect of all other claims, the expiry of a
period of three (3) years, commencing on the
Completion Date;
(c) in the case of a claim under Paragraph 21 (Competition) of
Part 1 of Schedule 4 (Warranties), the expiry of a period of
three years commencing on the Completion Date; and
(d) in any other case, 31 March 2003.
2.2 The liability of the Sellers in respect of a claim notified in
accordance with Paragraph 2.1 (Time Limit on Claims) (other than under
the Tax Deed) shall absolutely terminate (if that claim has not been
previously satisfied, settled or withdrawn) if legal proceedings in
respect of that claim containing full particulars of it shall not have
been properly issued and validly served on the Sellers within nine (9)
months after the date of service of that notice.
3. SPECIFIC LIMITATIONS
The Purchasers shall not be entitled to claim against the Sellers:
139
(a) with respect to a claim under the Warranties, save in relation
to any of the Warranties set out in Paragraphs 2 (Shares and
Share Capital), 17 (Taxation Matters), 19 (Environment) and 21
(Competition) and 12.11 (Norba Agreement) only of Part 1 of
Schedule 4 (Warranties), unless the amount (excluding interest
and costs) that would be recoverable from the Sellers in
respect of the claim exceeds (E)100,000 (one hundred thousand
euros). For this purpose, if a claim relates to more than one
event or circumstance which would separately constitute a
breach of any of the Warranties or any other provision of this
Agreement that claim shall be treated as a separate claim in
respect of each event or circumstance;
(b) with respect to a claim under the Warranties, save in relation
to any of the Warranties set out in Paragraphs 2 (Shares and
Share Capital), 17 (Taxation Matters), 19 (Environment) and 21
(Competition) and 12.11 (Norba Agreement) only of Part 1 of
Schedule 4 (Warranties), until the amount (excluding interest
and costs) that would be recoverable from the Sellers in
respect of the claim, when aggregated with the amount
(excluding interest and costs) recoverable in respect of any
other claims against the Sellers under the Warranties or any
other provision of this Agreement (and for those purposes
ignoring any claims which the Purchasers are not entitled to
bring because of paragraph 3(a) (Specific Limitations) above)
exceeds a threshold of (E)5,000,000 (five million euros) in
which event, the Sellers' liability shall be for the whole of
such amount and not just the amount by which that threshold is
exceeded;
(c) with respect to a claim under the Environmental Warranties
relating to all Disclosed Environmental Matters unless and
until the aggregated amount (excluding interest and costs)
that would be recoverable from the Sellers in respect of any
claim or claims exceeds a threshold of (E)2,200,000 (two
million two hundred thousand euros) in which event the
Sellers' liability shall be limited to the amount by which the
threshold is exceeded. (For this purpose it shall be assumed
that the Disclosed Environmental Matters have not been
disclosed to the Purchaser and that the Purchaser had not
taken into account any Losses they may incur as a consequence
thereof in agreeing the Purchase Price ;
(d) with respect to a claim under the Environmental Warranties
relating to any Undisclosed Environmental Matter unless the
amount (excluding interest and costs) that would be
recoverable from the Sellers in respect of the claim
140
exceeds (E)10,000 (ten thousand euros). For this purpose if
a claim relates to more than one event or circumstance which
would separately constitute a breach of any of the
Environmental Warranties or any other provision of this
Agreement that claim shall be treated as a separate claim in
respect of each event or circumstance;
(e) with respect to any claim under the Environmental Warranties
relating to Undisclosed Environmental Matters unless and until
the amount (excluding interest and costs) that would be
recoverable from the Sellers in respect of the claim, when
aggregated with the amount (excluding interest and costs)
recoverable in respect of any other such claims against the
Sellers (and for this purpose ignoring any claims which the
Purchasers are not entitled to bring because of paragraph 3(d)
(Specific Limitations) above) exceeds a threshold
of (E)100,000 (one hundred thousand euros) in which event the
Sellers' liability shall be for the whole of such amount and
not just the amount by which that threshold is exceeded;
(f) with respect to a claim under the Warranties, in respect of
any matters disclosed or referred to in this Agreement (or
arising from implementation of the same) or fairly disclosed
in the Disclosure Letter or otherwise actually known to Xxxxxx
Xxxx, Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxx, Xxxxx Xxxxxxxx or Xxx
Xxxxx before the date of this Agreement. The contents of the
Norba Acquisition Agreement, the schedules to the Norba
Acquisition Agreement for the purposes of this Agreement, be
deemed to be fairly disclosed in the Disclosure Letter;
(g) with respect to a claim under the Warranties or any other
provision of this Agreement, in respect of any matter or thing
after the date of this Agreement done or omitted to be done at
the written request of or with the written consent of the
Purchasers, the Companies, the Subsidiaries or any of them or
any other member of the Purchasers' Group and the Purchasers
knew that the effect of such action or omission would be to
give rise to a breach of the Warranties or any other provision
of this Agreement;
(h) if and to the extent that:
(i) with respect to a claim under the Warranties, the
claim would not have arisen but for any act,
omission, transaction or arrangement (or any
combination of any of the same) after Completion of
the Purchasers, the Companies the Subsidiaries or any
of them or any member of the
141
Purchasers' Group or any successor in title to the
Shares or their respective directors, employees or
agents other than acts, omissions, transactions or
arrangements in the ordinary course of business, or
pursuant to any legal or regulatory requirement;
(ii) with respect to a claim under the Warranties, the
claim would not have arisen but for any change in the
accounting policy or practice of the Companies, the
Subsidiaries or any of them having effect after
Completion except where such change is reasonably
necessary to enable the Company, the Subsidiaries or
any of them to comply with generally accepted
accounting principles at the date of Completion in
the place of incorporation of that Company or
Subsidiary;
(iii) with respect to a claim under the Warranties, the
claim arises or is increased as a result of the
passing of, or any change in or any change in the
interpretation of, any law, rule, regulation or
administrative practice of any government, government
department, local or state agency, authority
regulatory or fiscal body after the date the relevant
Warranties are given;
(iv) with respect to a claim under the Warranties or any
other provision of this Agreement, the claim arises
or is increased as a result of the Purchasers, the
Companies, the Subsidiaries or any of them not
complying with its obligations under this Agreement
(including, without limitation, the provision of
paragraph 1 of this Schedule 5);
(v) with respect to a claim under the Warranties or any
other provision of this Agreement to the extent the
damage, liability or loss suffered or incurred by the
Purchasers, the Companies, the Subsidiaries or any of
them has been made good or has been otherwise
compensated for without cost to the Purchasers, the
Companies, the Subsidiaries or any of them;
(vi) with respect to a claim under the Warranties,
specific provision is made in the Consolidated
Accounts or the Management Accounts for the matter,
fact, event or the circumstance which would otherwise
give rise to a claim. For the avoidance of doubt,
specific provisions for the purposes of this
Paragraph 3(h)(vi) shall not be limited to provisions
designated as "Specific Provisions" in the
Consolidated Accounts or the Management Accounts;
142
(vii) with respect to a claim relating to Taxation under
the Warranties or any other provision of this
Agreement, there are losses, reliefs or allowances
arising on or before the Balance Sheet Date (other
than any loss, relief or allowance which is treated
as an asset in the Consolidated Accounts or which has
been taken into account in computing Taxation or
deferred Taxation in the Consolidated Accounts) in
the Companies, the Subsidiaries or any of them which
are available (whether by surrender or otherwise) at
the date of claim to be set off against the loss
giving rise to the claim;
(viii) with respect to a claim under the Warranties (other
than in relation to any of the Warranties set out in
Paragraph 17 of Part 1 of the Warranties relating to
Taxation) or any other provision of this Agreement,
any amount by which any Taxation for which the
Companies, the Subsidiaries or any of them is liable
is actually reduced or extinguished as a consequence
of a payment in respect of the matter giving rise to
a claim under the Warranties. For this purpose the
Taxation shall be treated as having been actually
reduced or extinguished when either:
(aa) payment of Taxation is made by the
Companies, the Subsidiaries or any of them
of a lesser amount than would otherwise have
been the case; or
(bb) no payment is made which would otherwise
have been payable,
in either case as a result of the Companies, the
Subsidiaries or any of them obtaining a deduction in
respect of that payment in computing its profits or
gains for Tax purposes or in computing the amount of
any loss incurred in a trade or the amount of any
capital loss where such loss is set against other
taxable profits or gains of the Companies, the
Subsidiaries or any of them in respect of which Tax
would otherwise have been payable.
As and when the actual reduction or extinction occurs
this paragraph 3(h)(viii) (Specific Limitations)
shall operate first so as to require the Purchasers
to account to the Sellers for any payment previously
so made by it to the extent that the payment would
not have been made had that actual reduction or
extinction then occurred and after that to
143
reduce pro tanto any further liability of the Sellers
under the Warranties or any other provision of this
Agreement;
(ix) with respect to a claim under the Environmental
Warranties the claim arises as a result of the
Purchasers or, following Completion, any member of
the Group, their employees (other than manual and
clerical workers) or agents:
(aa) making or causing or permitting any person
to make any admission or providing or
causing or permitting to be provided by any
person any information, in each case
voluntarily, to any competent authority in
the absence of any legal obligation to that
competent authority to make such admission
or provide such information; or
(bb) otherwise exacerbating, increasing or
aggravating any environmental condition in
existence at or prior to Completion except
to the extent that a Reasonable and Prudent
Operator would exacerbate, increase or
aggravate any such environmental condition
and provided that in relation to any
Undisclosed Environmental Matters, no such
limitation shall apply until any member of
the management team of the Purchasers, the
Companies, the Subsidiaries or any of them
or any of those persons specified in
Paragraph 1.2(a) of this Schedule 5,
including in relation to the United Kingdom,
Xxxx Xxxxxx or, in relation to Sweden, Johan
Biskop, become aware after Completion of the
environmental condition in question (of
which he was unaware prior to Completion);
or
(cc) taking any steps which crystallise or
increase any loss or liability, except to
the extent that a Reasonable and Prudent
Operator would take any such steps which
shall include, without limitation, intrusive
investigations in relation to the sale or
leasing of any Property or any requirements
of any lenders or other participants in any
financing secured on any Property or the
carrying out of any intrusive investigations
required in connection with any development
of the type referred to in the exclusion in
Paragraph 3(h)(xii) below) and having due
regard to the interests of the Sellers;
144
(x) with respect to any claim under the Environmental
Warranties, to the extent any claim relates to Losses
which are other than Recoverable Environmental
Losses;
(xi) with respect to any claim under the Environmental
Warranties, to the extent that any claim relates to
Irrecoverable Environmental Losses;
(xii) with respect to any claim under the Environmental
Warranties, to the extent such claim relates to any
change of use at or development of any Property
(excluding any reasonable development in the ordinary
course of the business of the Companies at the
Property carried on as at Completion) or the carrying
out of any change of process except where connected
with such reasonable development as aforesaid, in
each case after Completion; and
(i) with respect to a claim under the Warranties set out in
Paragraph 17 (Taxation) of Part 1 of the Warranties, to the
extent that the provisions of Clause 4 of the Tax Deed apply.
4. MAXIMUM LIABILITY
The aggregate liability of the Sellers in respect of claims under the
Warranties or any other provision of this Agreement and the Tax Deed
(save where expressly provided otherwise in the Tax Deed) shall not
exceed the Purchase Price (including all legal, accountancy,
professional and any other costs, fees and expenses incurred by the
Purchasers, the Companies and the Subsidiaries or any of them in
seeking to enforce their respective rights in respect of the matters
giving rise to those claims) provided that this cap shall not apply in
respect of claims brought under Clause 2 (Agreement to Sell and
Purchase).
5. NO DOUBLE RECOVERY
The Purchasers shall not be entitled to recover more than once for the
same loss in respect of any fact, matter, event or circumstance giving
rise to a claim under Clause 11 (Specific Indemnities), the Warranties,
the Tax Deed or any other provision of this Agreement.
6. RECOVERY FROM THIRD PARTIES
6.1 If the Purchasers, the Companies, the Subsidiaries or any of them is or
may be entitled to recover from some other person (including insurers
but excluding any member of
145
the Group) any loss or damage which gives rise to any claim under the
Warranties or any other provision of this Agreement, the Purchasers
shall or shall procure that the Company or the relevant Subsidiary
shall take all appropriate steps to enforce that recovery (keeping the
Sellers informed on a timely basis of any action so taken) before
taking any action (other than notifying the Sellers of the claim)
against the Sellers, provided that such steps will not, or are not
likely, (in each case, in the reasonable opinion of the Purchasers) to
materially adversely affect the goodwill of any member of the Group
save that this proviso shall not apply in relation to the recovery by
the Companies and the Subsidiaries of debts owed to them by customers,
in respect of which the Purchasers shall procure that the Companies and
the Subsidiaries shall seek to recover the same in the normal and
proper course of business and in accordance with the relevant periods
for payment.
If the Purchasers, the Companies, the Subsidiaries or any of them do
not take the appropriate steps to enforce any such recovery, the
Sellers may refer the matter to a Queens' Counsel of at least 20 years
call jointly agreed upon between the Purchasers and the Sellers or
(failing such agreement) appointed, at the request of either the
Purchaser or the Seller at any time, by the President from time to time
of the Law Society in England and Wales (the "Queens' Counsel"), who
shall then determine whether the goodwill of any member of the Group
would be materially adversely affected if the Purchasers, the
Companies, the Subsidiaries took the appropriate steps to enforce such
recovery. His decision shall be communicated in writing to the
Purchasers and the Sellers shall be final and binding upon the
Purchaser and the Sellers, save in the event of manifest error. The
costs of the Queens Counsel shall be borne as to half by the Sellers
and half by the Purchasers in connection with all matters specified in
this Paragraph.
6.2 If, notwithstanding any other provision of this Schedule, any payment
is made by the Sellers in or towards the settlement of any claim made
under the Warranties and the Purchasers, the Companies, the
Subsidiaries or any of them subsequently recovers or procures the
recovery from a third party (including insurers) of an amount which is
directly referable to that claim (and, in the event that the
Purchasers, the Companies, the Subsidiaries or any of them becomes
entitled after payment by the Sellers to make recovery provided that
such steps will not, or are not likely to (in both cases, in the
reasonable opinion of the Purchaser) adversely affect the goodwill of
any member of the Group, the Purchasers undertake to procure that all
necessary steps are taken to enforce that recovery at the cost and
expense of the Sellers) the Purchasers shall or shall procure that the
relevant Company or Subsidiary shall forthwith repay upon such
146
recovery to the Sellers an amount equal to the amount (including
interest (if any)) recovered from the third party.
7. CONDUCT OF CLAIMS
If the Purchasers, the Companies, the Subsidiaries or any of them or
any other member of the Purchasers' Group becomes aware of any actual
or threatened assessment, claim, action or demand by a third party
against any of them (including without limitation any competent
authority in relation to the Environment) (a "third party claim") which
causes or is reasonably likely to cause the Sellers to be liable under
the Warranties:
(a) the Purchasers shall at the written request of the Seller take
or procure that the relevant Company or Subsidiary shall take
such action as the Sellers may reasonably require to avoid,
contest, dispute, resist, appeal, compromise or defend the
third party claim (including, but without limitation, making
counter claims and exercising all rights of set off against
third parties) provided that the Sellers shall indemnify the
Purchasers, and each Company and Subsidiary and all other
members of the Purchasers' Group against all costs reasonably
incurred by them in complying with their respective
obligations under this Paragraph and provided further that
such action will not or is not likely to, in both cases, in
the reasonable opinion of the Purchasers adversely affect the
goodwill of any member of the Group.
(b) the Purchasers will not (and will procure that each Company
and Subsidiary and all other members of the Purchasers' Group
will not) make or attempt to make any admission of liability,
agreement, settlement or compromise in relation to a third
party claim without the consent of the Sellers (that consent
not to be unreasonably withheld or delayed); and
(c) the Purchasers shall in any event keep the Sellers informed as
to the steps which are being taken in connection with the
third party claim.
8. DUTY TO MITIGATE
The Purchasers shall and shall procure that the Companies and the
Subsidiaries and any other relevant member of the Purchasers' Group
shall in relation to any loss or liability which might give rise to a
claim under the Warranties against the Sellers (were none of the
limitations save this Paragraph 8 to apply) take all reasonable steps
to avoid or mitigate that loss or liability.
147
9. BOOKS AND RECORDS
The Purchasers will (and will procure that each Company and Subsidiary
and all other members of the Purchasers' Group will) for such period of
time as is commensurate with the time periods set out in paragraph 2.1
of this Schedule 5 retain and preserve all books, records, documents
and information (including information recorded or retained in any
electronic form) of or relating to each Company and Subsidiary and
their business which are or may be relevant in connection with any
claim brought by the Purchasers against the Sellers under the
Warranties or any other provision of this Agreement for so long as any
actual or prospective claims remain outstanding.
10. REMEDIAL ACTION
10.1 For the purposes of this Paragraph 10:
"Environmental Authority" means any governmental agency, court,
regulatory or administrative body with jurisdiction in relation to
Remedial Action;
"Hazardous Substances" means any poisonous, noxious, dangerous,
hazardous, radioactive, toxic, flammable, carcinogenic, corrosive,
infectious, mutagenic, teratogenic, irritant or explosive materials or
substances or any constituent or any mixture of any of them (including
without limitation any petroleum or petroleum-derived substance) and/or
any other materials or substances that are regulated under
Environmental Laws;
"Remedial Action" means, removing, treating, containing, remedying,
encapsulating, cleaning up, abating or ameliorating the presence in or
effect on the Environment of any Hazardous Substances but excludes any
works to investigate, inspect, assess or audit the presence or effect
on the Environment of any Hazardous Substances.
10.2 The Purchasers shall have the conduct of the performance of any
Remedial Action.
10.3 In connection with any Remedial Action, the Purchasers shall and shall
procure that the Companies and the Subsidiaries and any relevant member
of the Purchasers' Group shall co-operate with the Sellers, their
employees, contractors and agents and without limiting the generality
of the foregoing, the Purchasers shall and shall procure that the
Companies and the Subsidiaries and any relevant member of the
Purchasers' Group shall:
148
(a) provide the Sellers promptly upon issuance or receipt with the
following items and information in the possession, custody or
control of the Purchasers and/or the Company and/or the
Subsidiaries and/or any relevant member of the Purchasers'
Group or in the possession, custody or control of their
contractors or agents to the extent that such items and
information are relevant to the Remedial Action:
(i) all written communications to or from any
Environmental Authority or third party;
(ii) all reports arising out of any actual or potential
Remedial Action including, but not limited to, any
reports assessing the nature or scope of the presence
of Hazardous Substances in the Environment to which
the actual or potential Remedial Action relates and
any results of any sampling;
(iii) any records, documents, data or other information
that may assist the Sellers, their employees,
contractors and agents in connection with the
Remedial Action;
(b) make its employees available to the Sellers, their employees,
contractors and agents to provide information relating to the
Remedial Action;
(c) upon reasonable advance notice and during normal business
hours, provide the Sellers, their employees, contractors and
agents with access to, and permit the Sellers, their
employees, contractors and agents and any Environmental
Authority, to enter the Properties and any other property
owned, leased or controlled by the Purchasers, their
Subsidiaries or any member of the Purchasers' Group to view
any Remedial Action being undertaken subject to the Sellers,
their employees, contractors and agents complying with the
reasonable requirements of the Purchasers in terms of
discharging their obligations under health and safety
legislation;
10.4 In connection with the performance of Remedial Action, the Purchaser
shall:
(a) perform, and cause all consultants and contractors, to
perform, such Remedial Action in a workmanlike manner and
consistent with all applicable Environmental Laws;
149
(b) provide the Sellers with reasonable advance notice of any
material negotiations, discussions or meetings with any
Environmental Authority concerning the relevant Remedial
Action; and
(c) provide the Sellers with draft copies of work plans or reports
(if any) pertaining in any material way to Remedial Action
within a reasonable period prior to the implementation of the
same.
10.5 In relation to any Remedial Action carried out by or on behalf of the
Purchasers, the Purchasers shall not make any claim for breach of any
of the Environmental Warranties except to the extent that any claim is
made only in respect of Recoverable Environmental Losses.
11. ENVIRONMENTAL DISCLOSURES BY THE SELLERS
11.1 Except as provided for in Paragraph 11.2 below, the Sellers shall not,
in relation to any Environmental matter in respect of the Properties,
make any contact with, or disclose any information concerning the
subject matter (whether orally or in writing) to any competent
authority.
11.2 The obligation on the Sellers, in Paragraph 11.1 above, not to disclose
information shall not apply:
(a) where the Sellers have obtained the prior written approval of
the Purchasers to such disclosure (such approval not to be
unreasonably withheld or delayed); or
(b) where the Sellers (or any of them) are subject to a legally
enforceable obligation to make any such disclosure; or
(c) in the event of an emergency.
150
SCHEDULE 6
PROPERTIES
Freehold
-----------------------------------------------------------------------------------------------------------------------------------
(1) (2) (3) (4) (5)
Legal Owner Description Description Registration No. Occupant
land register Ownership title
-----------------------------------------------------------------------------------------------------------------------------------
Geesink Vastgoed B.V. Parcel of land, Xxxxxxxx 0, Xxxxxxx XX, Register 4, section
58305 AG Emmeloord, The number 1649 274, number 41
Netherlands
-----------------------------------------------------------------------------------------------------------------------------------
Geesink Vastgoed B.V. Industrial site with shed, Section AZ Register 4, section
subsoil and other number 3476 818, number 20
appurtenances, Xxxxxxxx 0, 0000
XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
Geesink Vastgoed B.V. Parcel of land, Xxxxxxxxx 0, Xxxxxxx XX, Register 4, section
8305 AD Emmeloord, The number 5983 2015, number 37
Netherlands
-----------------------------------------------------------------------------------------------------------------------------------
Geesink Vastgoed B.V. Parcel of building land, corner Section AZ Xxxxxxxx 0, xxxxxxx
Xxxxxxxxxx / Xxxxxxxxx, number 5984 1908, number 36
Emmeloord, The Netherlands,
-----------------------------------------------------------------------------------------------------------------------------------
Geesink Vastgoed B.V. Factory, office, sheds, Section AZ, Register 4, section
industrial site, Xxxxxxxx 0, number 7007 274, number 41
8305 AG Emmeloord, The
Netherlands
-----------------------------------------------------------------------------------------------------------------------------------
Geesink Vastgoed B.V. Shed and industrial site, Section AZ, Register 4, section 57,
Xxxxxxxx 0, 0000 XX Xxxxxxxxx, number 7009 number 39
The Netherlands
-----------------------------------------------------------------------------------------------------------------------------------
Geesink Vastgoed B.V. Road (part of industrial site), Section AZ, Register 4, section
Machineweg in Emmeloord, The number 7010 4883, number 70
Netherlands
-----------------------------------------------------------------------------------------------------------------------------------
Geesink Vastgoed B.V. Shed with subsoil and other Section AZ, Register 4, section
appurtenances, Constructieweg number 7019 124, number 19
10, 8305 AA Emmeloord, The
Netherlands
-----------------------------------------------------------------------------------------------------------------------------------
Geesink Vastgoed B.V. Factory warehouse with subsoil Section AZ, Register 4, section
and other appurtenances, number 7020 1601, number 13
Xxxxxxxxx 00, 0000 XX
Xxxxxxxxx, Xxx Xxxxxxxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
Geesink Vastgoed B.V. Factory warehouse with subsoil Section AZ Register 4, section
and other appurtenances, number 7021 102, number 39
Xxxxxxxxxx 0, 0000 XX
Xxxxxxxxx, Xxx Xxxxxxxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
151
-----------------------------------------------------------------------------------------------------------------------------------
Geesink Vastgoed B.V. Parking space, Xxxxxxxx 0 Section AZ, Register 0, xxxxxxx
Xxxxxxxxx, Xxx Xxxxxxxxxxx number 9403 697, number 8
-----------------------------------------------------------------------------------------------------------------------------------
Geesink Vastgoed B.V. Parcel of industrial ground, Section AZ, Register 4, section
Constructieweg, Emmeloord, The number 9485 1306, number 26;
Netherlands rectified deed:
register 4, section
1548, number 6
-----------------------------------------------------------------------------------------------------------------------------------
Geesink Vastgoed B.V. Parcel of industrial ground, Section AZ Register 4, section
Constructieweg, Emmeloord, The number 9487 1306, number 26;
Netherlands rectified deed:
register 4, section
1548, number 6
-----------------------------------------------------------------------------------------------------------------------------------
Kiggen Den Xxxxxxxxx B.V. Factory and other Section B, Register 4, section
appurtenances, Den Xxxxxxxxx 2, number 861 7266, number 64
6026 RB Maarheeze, The
Netherlands
-----------------------------------------------------------------------------------------------------------------------------------
Kiggen Den Xxxxxxxxx B.V. Parcel of land, Den Xxxxxxxxx, Section B, Register 4, section
Maarheeze, The Netherlands number 1029 7266, number 64
-----------------------------------------------------------------------------------------------------------------------------------
Kiggen Den Xxxxxxxxx B.V. Sheds and land, Den Xxxxxxxxx, Section B, Register 4, section
Maarheeze, The Netherlands number 1321 9009, number 26
-----------------------------------------------------------------------------------------------------------------------------------
Geesink Norba Limited Llantrisant Business Park, WA 773911 Geesink Norba
Llantrisant, Pontyclun, Mid Limited
Glamorgan, UK
-----------------------------------------------------------------------------------------------------------------------------------
Geesink Norba Limited Acrewood Way, Xxxxxxxx Road, St HD 389127 Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx, XX Limited
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxx X/X Xxxxxxx 00, 0000 Xxxxxxxxxx, Title No. 4-s, Norba A/S
Denmark Karlstrup by, Karkstrup
-----------------------------------------------------------------------------------------------------------------------------------
Norba AB Land for industrial building at Arhult 3:51, Unoccupied
Blomstermala, Sweden Municipality of
Monsteras
-----------------------------------------------------------------------------------------------------------------------------------
152
Leasehold
-----------------------------------------------------------------------------------------------------------------------------------
(1) (2) (3) (4) (5)
-----------------------------------------------------------------------------------------------------------------------------------
Legal Owner Description Land Register Title No. or Occupant
Description Term/Annual Rent
-----------------------------------------------------------------------------------------------------------------------------------
Geesink Vastgoed B.V. Office building, Xxxxxxxx 0, Xxxxxxx XX, Leasehold until 2064 Geesink Vastgoed
8305 AG Emmeloord, The number 1705 BV
Netherlands NLG 198 p.a.
-----------------------------------------------------------------------------------------------------------------------------------
Geesink Vastgoed B.V. Two sheds and land, Xxxxxxxx 0, Xxxxxxx XX, Leasehold until 2064 Geesink Vastgoed
8305 AG Emmeloord, The number 7008 BV
Netherlands NLG 9.351 p.a.
-----------------------------------------------------------------------------------------------------------------------------------
Geesink Vastgoed B.V. Parking place chassis, Betonweg Section AZ, 30 September 2000 - 30 Geesink Vastgoed
10, 8305 AG Emmeloord, The number 1011 September 0000,
Xxxxxxxxxxx extension 5 years, NLG BV
70.000 p.a.
-----------------------------------------------------------------------------------------------------------------------------------
Geesink B.V. Bolstoen 5a, 1046 AS, Sloten, Section 1 June 2001 - 31 May Geesink B.V.
Amsterdam, The Netherlands A, number 2006, extenson every 5
1489-A-1 years. NLG 72.500
p.a.
-----------------------------------------------------------------------------------------------------------------------------------
Norba AB Land and buildings at Arhult 13:114, Term until 31 December Norba AB
Blomstermala, Sweden Municipality of 2007
Monsteras
-----------------------------------------------------------------------------------------------------------------------------------
Norba AB Land and buildings at Arhult 35:1, Original lease term Norba AB
Blomstermala, Sweden Municipality of until 31 December
Monsteras 2007. New lease term
until 31 August 2004
-----------------------------------------------------------------------------------------------------------------------------------
Norba AB Land and buildings at Arhult 35:2, 50% of total lease Norba AB (50%) and
Blomstermala, Sweden Municipality of terminated Stans & Press i
Monsteras 1 June 2001. 50% of Xxxxxxxx Xxxx AB
total lease to be (50%)
terminated 1 September
2001.
-----------------------------------------------------------------------------------------------------------------------------------
Geesink Norba Limited Xxxx 00, Xxxx Xxxx Xxxxxxxxxx X/X 00 years from Xxxxxxx Xxxxx
Xxxxxx, Xxxx Xxxx, Xxxxxx, 00 December 1998 Limited
Oldham, UK
(pound)27,000 p.a.
-----------------------------------------------------------------------------------------------------------------------------------
Geesink Norba Limited Xxxx 00, Xxxxxxxx Xxxx, X/X 0 years from 1 Xxxxx Xxxxxxx Norba
Ipswich, England 2001 Limited
-----------------------------------------------------------------------------------------------------------------------------------
Geesink Norba Limited Part of Land, Bagleys Lane N/A 5 years from 0 Xxxxxx Xxxxxxx Xxxxx
Xxxxx, Xxxxxx XX0 0000 Limited
-----------------------------------------------------------------------------------------------------------------------------------
Geesink X.X. 00, Xxx des Albatros, X.X. Xxx Xxxxxxx XX xx. 00 0 years from 1 Xxxxx Xxxxxxx X.X.
Xxxxxxxxx, 00000 Mions, France 1994, renewed 1 June
1998
FRF 336,000 per annum -
EUR 51,223
-----------------------------------------------------------------------------------------------------------------------------------
153
-----------------------------------------------------------------------------------------------------------------------------------
Geesink B.V. Warehouse at X.X. Xxx Xxxxxxx XX xx. 00 0 years from 1 June 1998 Geesink X.X.
Xxxxxxxxx, 00000 Xxxxx, Xxxxxx
FF 288,000 p.a.
EUR 43,905
-----------------------------------------------------------------------------------------------------------------------------------
Geesink B.V. In der Beckuhl 18, 46569 Hunxe, 12 years from 0000 Xxxxxxx X.X.
Xxxxxxx
DM 284,000 p.a.
-----------------------------------------------------------------------------------------------------------------------------------
Geesink X.X. Xxxxxxxxx 000, 0000 Zemst, Notice given to Geesink N.V.
Belgium terminate lease on 31
October 2001
BEF 504.000 p.a.
-----------------------------------------------------------------------------------------------------------------------------------
Geesink Polska Sp.zo.o. Xx. Xxxxxxxxxxx 00/000, 00-000 Xxxxxxxxxx term, with 6 Geesink Polska
Pabianice, Poland month notice period Sp.zo.o.
PLN 32.400 p.a.
-----------------------------------------------------------------------------------------------------------------------------------
Geesink B.V. Centor dir. Colleoni, Palazzo 1 November 2000 to 31 Geesink B.V.
Cassiopea, Xxx Xxxxxxxxx, 00, Xxxxxxxx 0000
00000 Xxxxxx Xxxxxxx (XX), Xxxxx
Lira 33,000,000 p.a.
-----------------------------------------------------------------------------------------------------------------------------------
Geesink B.V. C/Las Estaciones, 11 Parque Registro de la 5 years from 8 February Geesink B.V.
Industrial Las Monjas, 28850 Xxxxxxxxx xx 0000
Xxxxxxxx xx Xxxxx, Xxxxxx, Xxxxx Torrejon de Ardoz
ESP 5,913,024 p.a.
X/ Xxxxxxxxxxxx,
00
00000 Xxxxxxxx
xx Xxxxx
-----------------------------------------------------------------------------------------------------------------------------------
Geesink B.V. X/Xxx Xxxxx, xxxx 000 Xxxxxxxx Xxxxxxxx xx xx 00 years from 28 Xxxx Xxxxxxx B.V.
Industrial Can Roses, 08191 Xxxxxxxxx xx 0000
Xxxx, Xxxxxxxxx, Xxxxx Tarrasa no. 2
ESP 1,350,864 p.a.
X/Xxx Xxxxxxx, 0
00000 Xxxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
154
SCHEDULE 7
UK PENSIONS
1. INTERPRETATION
1.1 For the purposes of this Schedule the following terms have the
following meanings:
"Actuary's Letter" means the letter from the Sellers' Actuary to the
Purchasers' Actuary, a copy of which is annexed to this Schedule.
"Future Period" means the period of ten years from the date of
Completion (if the Supplementary Transfer Amount is paid in full) or
such shorter period as may be determined by the Purchasers' Actuary and
verified by the Sellers' Actuary reflecting the value of any payment in
excess of the Transfer Amount made under paragraph 5.1 having regard to
the assumptions set out in the Actuary's Letter.
"Interest" means interest at the rate set out in Clause 3.4 of this
Agreement.
"Interim Period" means the period from Completion to the day before the
Pension Transfer Date (both dates included).
"Participating Company" means Geesink Norba Limited.
"Payment Date" means the date which is seven days after the Transfer
Amount and the Supplementary Transfer Amount are determined in
accordance with paragraph 4.3 or 4.4.
"Pension Transfer Date" means the date which is six months after
Completion or such other date as may be agreed in writing between the
Sellers and the Purchasers.
"Purchasers' Actuary" means Xxxxxx Xxxxxx of Xxxxxx Associates or such
other actuary nominated by the Purchasers for the purpose of this
Schedule.
"Purchasers' Scheme" means a retirement benefits scheme established or
nominated by the Purchasers pursuant to paragraph 3.
"Relevant Employees" means those of the employees of the Participating
Company who are active members of the Sellers' Scheme at Completion.
"Sellers' Actuary" means Xxx Xxxxxxx of Messrs Bacon & Xxxxxxx or such
other actuary nominated by the Sellers for the purpose of this
Schedule.
155
"Sellers' Scheme" means the PD Pension Plan established by a trust deed
dated 30 March 1949.
"Supplementary Transfer Amount" has the meaning set out in the
Actuary's Letter.
"Timing Adjustment" is the rate determined as set out in the Actuary's
Letter.
"Transfer Amount" has the meaning set out in the Actuary's Letter.
However, where the Sellers' Scheme is in receipt of a pension sharing
order or other provision in section 28(1) of the Welfare Reform and
Pensions Xxx 0000 in respect of a Transferring Employee, the Transfer
Amount shall be reduced by the value of the pension debit applied to
that person's benefits in accordance with the applicable legislation
and by the amount of the charges that are to be deducted from that
person's entitlement insofar as the calculation of the Transfer Amount
has not already taken such pension debit and charges into account.
"Transferring Employees" means those Relevant Employees:-
(a) who become members of the Purchasers' Scheme on the Pension
Transfer Date; and
(b) who no later than four weeks after the Pension Transfer Date
(or such later date as may be agreed in writing between the
Sellers and the Purchasers) consent in a form acceptable to
the trustees of the Sellers' Scheme to the transfer of an
appropriate sum from the Sellers' Scheme to the Purchasers'
Scheme in place of all of the benefits payable in respect of
their membership of the Sellers' Scheme.
1.2 The following provisions have the same meanings given to them under the
provisions of the Sellers' Scheme:
"Pensionable Earnings"
1.3 References in this Schedule to paragraphs are to paragraphs of this
Schedule.
1.4 For the avoidance of doubt the provisions of clause 14 of the Agreement
shall apply to this Schedule.
2. INTERIM PERIOD
2.1 The Sellers hereby undertake with the Purchasers that during the
Interim Period, subject to the approval of the Inland Revenue it will
procure that the Participating
156
Company may continue to participate in the Sellers' Scheme as an
employer in respect of the Relevant Employees until the Pension
Transfer Date as if it were an associated company of the Sellers.
2.2 The Purchasers hereby undertake with the Sellers that they will procure
that the Participating Company will, during the Interim Period:
(a) participate in the Sellers' Scheme for the benefit of Relevant
Employees who are from time to time members of the Sellers'
Scheme;
(b) pay in respect of the Relevant Employees in its employment the
following contributions to the Sellers' Scheme in respect of
each calendar month (or part thereof) during the Interim
Period:
(i) employer contributions at a rate equal to the
employer's contracting-out rebate on a contracted-out
money purchase basis at source; and
(ii) members' contributions at the rate of 5% of
Pensionable Earnings (earned during and in respect of
the calendar month or part thereof);
payment to be in arrears within 7 days of the end of the
calendar month to which they relate;
(c) comply with the provisions of the Sellers' Scheme;
(d) not do or omit to do any act or thing whereby the approval
under ICTA of the Sellers' Scheme or its status as a
contracted-out scheme would or might be prejudiced;
(e) (if the Interim Period extends beyond 5 April 2002) not
increase the Pensionable Earnings of any Relevant Employee to
or above an amount which exceeds such Relevant Employees'
Pensionable Earnings at Completion by more than the rate
assumed in the Actuary's Letter except with the prior approval
of the Sellers and on such terms as to payment of additional
contributions to the Sellers' Scheme as the trustees of the
Sellers' Scheme or the Sellers may require.
(f) not exercise any power or discretion under the Sellers' Scheme
which would affect the benefit entitlements of the Relevant
Employees without the consent of the Sellers (such consent not
to be unreasonably withheld);
157
(g) notify the trustees of the Sellers' Scheme of the names of
those Relevant Employees (if any) who cease to be employed by
the Purchasers during the Interim Period; and
(h) complete such documents as the trustee of the Sellers' Scheme
reasonably requires.
2.3 In the event that any contribution due to the Sellers' Scheme in
accordance with paragraph 2.2 is not paid by the due date the
Purchasers shall procure that the Participating Company shall pay
Interest on the over due amount.
2.4 The Purchasers will promptly deliver to the Sellers drafts before they
are issued and copies once they are issued of all notices and
announcements relating to the Sellers' Scheme or the Purchasers' Scheme
supplied to the Relevant Employees before the Pension Transfer Date.
2.5 The Purchasers undertake that during the Interim Period the
Participating Company shall if so required by the Sellers in writing,
nominate the Seller (or such other person as the Seller may direct) as:
(a) the appropriate person under section 21(9) of the Pensions Xxx
0000;
(b) its representative for the purposes of section 58(4) of the
Pensions Xxx 0000, as modified by the Occupational Pension
Schemes (Minimum Funding Requirement and Actuarial Valuation)
Regulations 1996; and
(c) its agent for the purposes of consultation under section 35(5)
of the Pensions Xxx 0000.
2.6 The Sellers undertake to procure that the Sellers' Scheme will not be
terminated or amended if any amendment would have the effect of
reducing the Transfer Amount prior to the payment of the Transfer
Amount and the Supplementary Transfer Amount in accordance with
paragraph 5 or, if sooner, 12 months after the Pension Transfer Date.
2.7 The Sellers and the Purchasers shall use their best endeavours to
procure that while the Relevant Employees are members of the Sellers'
Scheme their employment shall be contracted-out employment (within the
meaning of section 8 of the Pension Schemes Act 1993) by reference to
the Sellers' Scheme.
2.8 The Sellers undertake with the Purchasers that they will not take any
actions (other than those required by law or in accordance with the
provisions of this Schedule) to
158
persuade Relevant Employees not to consent to become Transferring
Members. For the avoidance of doubt, the Sellers and the Purchasers
agree that this paragraph 2.8 will not prevent the Sellers from
providing information to any Relevant Employee in connection with, and
in particular regarding his or her benefits under, the Sellers' Scheme.
3. THE PURCHASERS' SCHEME
3.1 The Purchasers will establish or nominate the Purchasers' Scheme before
the Pension Transfer Date and will procure that the Participating
Company will participate in the Purchasers' Scheme. All Relevant
Employees then employed by the Participating Company who have not
attained normal pension date will be invited to become members of the
Purchasers' Scheme with effect from the Pension Transfer Date. The
Purchasers' Scheme shall remain in full force and effect for at least
the remainder of the Future Period.
3.2 The Purchasers' Scheme shall provide benefits in accordance with
paragraphs 3.3 and 3.4 and shall:-
(a) be a final salary scheme, designed to be approved under
Chapter I of Part XIV of ICTA or capable of such approval;
and/or
(b) be a money purchase scheme, designed to be approved under
Chapter I or Chapter IV of Part XIV of ICTA and be either (i)
a contracted-out scheme for the purposes of Section 9(3) of
the Xxxxxxx Xxxxxxx Xxx 0000 or (ii) an appropriate scheme for
the purposes of Part III of the Xxxxxxx Xxxxxxx Xxx 0000;
and the Purchasers will use their reasonable endeavours to procure that
the Purchasers' Scheme accepts the transfer to the Purchasers' Scheme
of the accrued rights of the Transferring Employees including the
liabilities of the Sellers' Scheme under the Xxxxxxx Xxxxxxx Xxx 0000
in respect of the contracted-out service of each Transferring Employee.
For the avoidance of doubt, if the Purchasers' Scheme is a final salary
scheme which is not a contracted-out scheme for the purposes of Section
9(2B) of the Xxxxxxx Xxxxxxx Xxx 0000 the Purchasers will also
establish or nominate a money purchase scheme as set out in (b) above.
3.3 Subject to receipt of the Transfer Amount, the Purchasers will procure
that
(a) where the Purchasers' Scheme is of a type described in
paragraph 3.2(a), the Purchasers' Scheme will provide for and
in respect of each Transferring
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Employee benefits in respect of Pensionable Service in the Sellers'
Scheme before the Pension Transfer Date which, in the opinion of the
Purchasers' Actuary, are broadly equivalent in value calculated on the
assumptions in the Actuary's Letter (such calculations to be verified
by the Sellers' Actuary) to the benefits that would have been provided
for and in respect of the member under the Sellers' Scheme in respect
of Pensionable Service before the Pension Transfer Date if the member
had remained in service as a member of the Sellers' Scheme up to the
date of retirement, death or leaving service; or
(b) where the Purchasers' Scheme is of a type described in
paragraph 3.2(b), the proportion of the Transfer Amount
applicable to each Transferring Employee is credited to that
Transferring Employee's account in the Purchasers' Scheme
without any deduction for expenses (other than reasonable
ongoing investment management expenses).
(2) On the agreement of the calculations in paragraph 4.1 below, the
Purchasers will within one month prepare individual communications for
each Relevant Employee (such communications to be agreed by the
Sellers) which shall set out the transfer terms to be offered to them.
3.4 Subject to receipt of the Supplementary Transfer Amount or any other
amount greater than the Transfer Amount (as adjusted in accordance with
paragraph 5.1), the Purchasers will use all reasonable endeavours in
conjunction with the Sellers to ensure that those of the Transferring
Employees with continued rights to pre-1989 Inland Revenue Limits will
retain the same rights in the Purchasers' Scheme and,
(a) where the Purchasers' Scheme is of a type described in
paragraph 3.2(a) the Purchasers will procure that for each
Transferring Employee the Purchasers' Scheme will provide for
the remainder of the Future Period defined benefits in respect
of service after the Pension Transfer Date with the
Participating Company which, in the opinion of the Purchasers'
Actuary, are broadly equivalent in value (taking account of
any improvements in the method of remuneration of such
Transferring Employee) calculated on the assumptions in the
Actuary's Letter (such calculations to be verified by the
Sellers' Actuary) to the benefits that would have been
provided under the Sellers' Scheme for and in respect of the
employee based on such service had the employee remained a
contributing member of the Sellers' Scheme and that the
contributions payable by each Transferring Member (if any)
during the remainder of the Future Period will not be higher
than the contributions payable by the employee to the Sellers'
Scheme immediately prior to the
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Pension Transfer Date, unless such a change in the
contribution rate can be justified following an improvement in
benefit provision under the Purchasers' Scheme; and/or
(b) where the Purchasers' Scheme is of a type described in
paragraph 3.2(b) the Purchasers will procure that in respect
of Transferring Employees employer contributions will be
credited to the accounts of Transferring Employees during the
remainder of the Future Period under a contribution structure
which, in the opinion of the Purchasers' Actuary, is broadly
equivalent in value (taking account of any improvements in the
method of remuneration of such Transferring Employee)
calculated on the assumptions in the Actuary's Letter (such
calculations to be verified by the Sellers' Actuary) to the
defined benefits that would have been provided under the
Sellers' Scheme for and in respect of the employee had the
employee remained a contributing member of the Sellers'
Scheme.
3.5 The Purchasers will procure that the Transferring Employees will
receive fair and equal treatment as members of the Purchasers' Scheme.
4. THE TRANSFER PAYMENT
4.1 The Sellers shall procure that the Sellers' Actuary makes a provisional
calculation of the Transfer Amount and the Supplementary Transfer
Amount as soon as reasonably practicable and in any event not later
than two months before the Pension Transfer Date (assuming for these
purposes that the Pension Transfer Date ends on a date which is six
months after Completion and further assuming that all Relevant
Employees are to be Transferring Employees) and notifies the
Purchasers' Actuary of the amount for verification by the Purchasers'
Actuary. If the Purchasers' Actuary is unable to agree the Sellers'
Actuary's calculations within one month of his receipt of the
calculations either party may refer the matter to an independent
actuary pursuant to paragraph 4.4 below.
4.2 The Sellers and the Purchasers shall as soon as reasonably practicable
and in any event not later than two months after the Pension Transfer
Date provide the Sellers' Actuary and the Purchasers' Actuary with
documents and information in their respective possession or control as
the Sellers' Actuary and the Purchasers' Actuary may reasonably require
in order to calculate and verify the Transfer Amount and the
Supplementary Transfer Amount.
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4.3 The Sellers shall procure that the Sellers' Actuary calculates as soon
as reasonably practicable and in any event not later than four months
after the Pension Transfer Date the Transfer Amount and the
Supplementary Transfer Amount and notifies the Purchasers' Actuary of
the amount for verification by the Purchasers' Actuary. If the
Purchasers' Actuary is unable to agree the Sellers' Actuary's
calculations within one month of his receipt of the calculations either
party may refer the matter to an independent actuary pursuant to
paragraph 4.4 below.
4.4 Any dispute between the Sellers' Actuary and the Purchasers' Actuary
concerning the mathematics of calculating the Transfer Amount, the
Supplementary Transfer Amount or the Future Period and any disagreement
between them arising under paragraphs 3.3(a), 3.4(a) and 3.4(b) shall,
in the absence of agreement between them, be referred to an independent
Actuary agreed by the Sellers and the Purchasers or (failing agreement
within 7 days of a written request from one party to the other to agree
to the appointment of such an actuary) appointed at the request of the
Sellers or the Purchasers by or on behalf of the President for the time
being of the Institute of Actuaries. The decision of any such
independent actuary shall be final and his expenses shall be borne
equally by the Sellers and the Purchasers or otherwise in his absolute
discretion as he may determine. The independent actuary shall act as an
expert not as an arbitrator.
5. PAYMENT OF THE TRANSFER AMOUNT AND THE SUPPLEMENTARY TRANSFER AMOUNT
5.1 Subject to them being satisfied that the Purchasers have met or will
meet its obligations under paragraphs 2 and 3 above and to the consent
of the Inland Revenue having been obtained to such a payment, the
Sellers will use all reasonable endeavours to procure that the trustees
of the Sellers' Scheme transfer to the trustees of the Purchasers'
Scheme assets mutually agreed between the trustees of the Sellers'
Scheme and the trustees of the Purchasers' Scheme equal in value on the
basis set out in the Actuary's letter to the Transfer Amount and the
Supplementary Transfer Amount (adjusted by the Timing Adjustment during
the period from the Pension Transfer Date to the Payment Date) or
otherwise in cash (subject to deduction for reasonable expenses
incurred in realising assets).
5.2 If and to the extent that the sum (if any) paid by the trustees of the
Sellers' Scheme under paragraph 5.1 above is less than the Transfer
Amount (as adjusted and subject to the deduction referred to in
paragraph 5.1), the Sellers (as principal and not as guarantor) will
itself pay the difference between the Transfer Amount (as adjusted and
subject to the deduction referred to in paragraph 5.1) and the amount
actually paid (if
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any) to the Purchasers (as an adjustment to the Purchase Price), which
amount shall be called "the Shortfall".
5.3 If a payment is made under paragraph 5.2 the Purchasers will procure
that the Participating Company shall make a payment equal to the
Shortfall to the Purchasers' Scheme within five Business Days of
receipt. If the Participating Company's liability to corporation tax
applicable to its profits is reduced as a result of the payment of this
amount together with Interest thereon into the Purchasers' Scheme the
Purchasers shall repay in cash to the Sellers an amount equal to such
deduction (as an adjustment to the Purchase Price) within seven days of
the date on which the Shortfall is paid to the Purchasers' Scheme.
6. ADDITIONAL VOLUNTARY CONTRIBUTIONS
Any additional voluntary contributions made to the Sellers' Scheme by
any Relevant Employee (and the moneys, interest and benefits derived
from those contributions) which are used to provide money purchase
benefits (as defined in the Pension Schemes Act 1993) shall be
disregarded for the purposes of calculating the Transfer Amount, but
the Sellers shall use reasonable endeavours to procure that the
trustees of the Sellers' Scheme will as soon as practicable after the
Pension Transfer Date transfer to the Purchasers' Scheme (without
penalty or deduction) the assets and/or the amount standing to the
credit of each Transferring Employee in respect of additional voluntary
contributions paid to the Sellers' Scheme.
7. MISCELLANEOUS
7.1 Neither the Purchasers the Participating Company nor any company
directly or indirectly controlled by or connected with it will
encourage or initiate any action or provide financial assistance for
the purpose of requiring the trustees of the Sellers' Scheme to pay a
larger amount than the Transfer Amount and the Supplementary Transfer
Amount (adjusted by the Timing Adjustment).
7.2 If after Completion any Relevant Employee ceases to be employed by the
Participating Company and becomes employed by an employer associated
with the Participating Company (within the meaning of section 590A of
the ICTA), that Relevant Employee will be deemed to be an employee of
the Participating Company for the purposes of this Schedule, and the
Purchasers will comply and will procure that such other employer
complies with the obligations imposed upon the Purchasers and the
Participating Company by this Schedule in relation to that employee.
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SCHEDULE 8
APPORTIONMENT OF PURCHASE PRICE
euros(E) Proportion(%)
Geesink Group BV 117,148,000 84.8
Norba AB 10,500,000 7.6
Geesink Norba Limited 10,500,000 7.6
In the event that the Purchase Price is greater or less than the sum of the
amounts shown above, the Purchase Price (together with any relevant interest in
respect thereof payable pursuant to Clause 3 (Purchase Price)) shall be
allocated as between each of Geesink Group BV, Norba AB and Geesink Norba
Limited in the same proportion as detailed above.
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SCHEDULE 9
CONDUCT BETWEEN EXCHANGE AND COMPLETION
1. The Sellers undertake that they shall procure that between the date of
this Agreement and Completion, except with the prior written consent of
the Purchasers (such consent not to be unreasonably withheld or
delayed), each of the Companies and the Subsidiaries shall:
(a) not enter into, modify or terminate any contract other than in the
ordinary course of business;
(b) not create, allot, issue, repay or redeem any share or loan capital;
(c) not declare, make or pay any distribution of capital or income in
respect of any share capital of the Company;
(d) not allow any rights relating to Company Intellectual Property to
lapse;
(e) not undertake any action for which consent of Xxxxxxx Xxxxxx would be
required in accordance with the Finance Manual;
(f) not acquire or dispose of or agree to acquire or dispose of any part of
its business or undertaking or, except in the ordinary course of
business, of any asset;
(g) not allow any unusual increase or decrease in the level of Stock other
than in the ordinary course of business;
(h) not write off or write down (in each case other than in the ordinary
course of business) or assign to a third party at less than full value
any obligations owed to it;
(i) not amend the terms of any agreement or arrangement concerning
Inter-Company Loans or where monies are advanced to any other person
(not being a member of the Group);
(j) not (except in the ordinary course of business) release, discharge or
compound any liability, claim, action, demand or dispute and shall not
(except in the ordinary course of business) initiate or compromise or
settle any litigation or arbitration proceedings or waive any right in
relation to or the subject of litigation or arbitration proceedings;
(k) not enter into or modify any agreement or arrangement (legally
enforceable or not) in which any of its directors or former directors
or any of the Sellers or any of their respective Associates is
interested (directly or indirectly);
165
(l) except pursuant to the Agreed Redundancy Programme, not employ or
engage or terminate the employment or engagement of any director,
employee or consultant except an employee engaged at a basic salary not
exceeding (E)65,000 or increase the salary of any director, employee
or consultant by more than 5% or in excess of (E)100,000 in
aggregate;
(m) not make capital expenditure or incur any capital commitments in excess
of (E)75,000 in respect of any one item or (E)500,000 in total, save
as set out in the current budget for the Group;
(n) not do or omit to do anything which would or might derogate from the
validity and enforceability of the Company Intellectual Property;
(o) Pay all relevant social security and national insurance contributions
in relation to its employees;
(o) not (conditionally or unconditionally) offer or agree to do any of the
things referred to in any of the foregoing paragraphs.
2. The Sellers undertake that they shall use their reasonable endeavours
to procure that between the date of this Agreement and Completion none
of the Companies and/or the Subsidiaries shall, whether by any act or
omission:
(a) breach any of the licences, consents, permits, approvals and
authorities (public and private) which have been obtained by the
Company to enable the Company to carry on its business lawfully in the
place and in the manner in which its business is now carried on;
(b) breach any relevant statutory requirement, by-laws or regulations of
the United Kingdom or elsewhere applicable to it or its business where
such contravention will have an adverse effect on the continued
operation of the Company and/or the Subsidiaries;
(c) breach any contracts which any Company and/or Subsidiary is a party
which could lead to a claim for compensation, damages, specific
performance or an injunction being made against any Company and/or
Subsidiary or which would entitle a third party to call in any monies
before the normal due date, which will in any event materially
adversely affect the business of the Company (which for the purposes
hereof shall mean if the amount that would otherwise be recoverable
from the Sellers arising from an individual breach is (E)100,000 or
more);
166
(d) give grounds for rescission, avoidance or repudiation of any agreement
or other transaction which any Company and/or Subsidiary is a party;
(e) permit any premiums payable in respect of the Company's insurance
policies not to be paid or permit any incidents likely to give rise to
a claim under the Company's insurance policies not to be notified to
the Company's insurers in accordance with the terms thereof;
(f) give grounds for any claim (including but not limited to any claim in
respect of an industrial accident) by any employee or former employee
of the Company;
(g) breach any of the covenants, conditions, restrictions or agreements or
other matters subject to which any of the Properties are held or the
provisions or requirements, permissions, licenses, approvals, by-laws,
orders, regulations or other requirements or obligations affecting or
likely to affect each of the Properties or its current use;
(h) permit any circumstances to arise which would lead to any closing,
demolition order, clearance order or enforcement notice being issued in
respect of the Properties or any of the Companies and/or Subsidiaries
as owner or occupier thereof;
(i) breach any Environmental Laws;
(j) permit any breach of applicable laws, regulations and legally binding
and approved codes of practice made or issued by national or local
government or by any regulatory body or by any court in each case with
legally enforceable powers relating to the prevention of accidents and
of injury to employees and to lawful and unlawful visitors to the
Properties that are in existence at the date of this Agreement and
legally enforceable both in respect of the activities undertaken at the
date of this Agreement at the Properties and in respect of the
Properties themselves at the date of this Agreement (and for the
purpose hereof the Companies and/or the Subsidiaries shall be deemed
not to have complied in a material respect if the amount that would
otherwise be recoverable from the Sellers arising from that instance of
non-compliance is (E)100,000 or more);
(k) fail to comply with, discharge or fulfill any requirement, liability or
obligation (whether statutory or contractual) in relation to its
employees, including relevant legislation or codes of practice and any
applicable laws in relation to employment or employees;
(l) permit any breach of any applicable statutory or other requirements
relating to each of the Properties including requirements relating to
planning, development, fire safety and health and safety at work.
167
SCHEDULE 10
EXAMPLE CALCULATION OF NET DEBT
Example Calculation of Net Debt - Consolidated Accounts Format
(NLG `000s)
Loans and Overdrafts (Due within one year) 4,267
Plus: Loans (Due after one year) 392
Plus: Other amounts due to Xxxxxx Duffryn
subsidiary undertakings (Other Creditors)
30,422
---------------
Total Debt 35,081
Less: Amounts due from Xxxxxx Duffryn subsidiary
undertakings (1) 242
Less: Cash at bank and in hand (Current Assets) 8,726
---------------
Net Debt 26,113
Source: Consolidated Accounts for period ending 31 March 2001
(1) Represents an amount to be classified as Inter-Company Loans.
168
Example Calculation of Net Debt - Management Accounts Format
(NLG `000s)
Overdraft 1,175
Plus: Group Funding (1) 30,186
Plus: HP/ Finance Leases 169
Plus: External Loans 384
----------------
Total Debt 31,914
Less: Cash at Bank 5,795
----------------
Net Debt 26,119
Source: March 31, 2001 management accounts
(1) Includes the Amounts due from Xxxxxx Duffryn, which, in the management
accounts, are deducted from the amount of group funding.
169
EXECUTION:
SIGNED by [Xxxxxxx X. Xxxxxx ] ) /s/ Xxxxxxx X. Xxxxxx
duly authorised for and on behalf )
of XXXXXX DUFFRYN HOLDINGS BV )
SIGNED by [Xxxxx Xxxxxx Xxx ] ) /s/ Xxxxx Xxxxxx Xxx
duly authorised for and on behalf )
of XXXXXX DUFFRYN (INTERNATIONAL) LIMITED )
SIGNED by [Xxxxx Xxxxxx Xxx ] ) /s/ Xxxxx Xxxxxx Xxx
duly authorised for and on behalf )
of XXXXXX DUFFRYN INVESTMENTS LIMITED )
SIGNED by [Xxxxxxx X. Xxxxxxx ] ) /s/ Xxxxxxx X. Xxxxxxx
duly authorised for and on behalf ) Executive Vice President,
of OSHKOSH GROUP BV ) General Counsel and Secretary
SIGNED by [Xxxxxxx X. Xxxxxxx ] ) /s/ Xxxxxxx X. Xxxxxxx
duly authorised for and on behalf ) Executive Vice President,
of OSHKOSH EUROPEAN HOLDINGS SL ) General Counsel and Secretary
SIGNED by [Xxxxxxx X. Xxxxxx ] ) /s/ Xxxxxxx X. Xxxxxx
duly authorised for and on behalf )
of XXXXXX DUFFRYN LIMITED )
SIGNED by [Xxxxxxx X. Xxxxx ] ) /s/ Xxxxxxx X. Xxxxx
duly authorised for and on behalf ) Executive Vice President and
of OSHKOSH TRUCK CORPORATION ) Chief Financial Officer
170
