1
EXHIBIT 1.2
Xxxxx Holdings plc
AND
XXXXXXX XXXXX INTERNATIONAL
-----------------------------------------------------
SPONSOR'S AND OPEN OFFER AGREEMENT
------------------------------------------------------
2
CONTENTS
CLAUSE PAGE
------ -----
1. Interpretation..................................................................................1
2. Appointment Of Xxxxxxx Xxxxx....................................................................5
3. Application For Admission And Registration And The Open Offer...................................6
4. Pricing Prospectus And Supplementary Prospectuses...............................................8
5. Fees, Commissions And Costs.....................................................................9
6. Representations And Warranties.................................................................11
7. Indemnity And Exclusion Of Liability...........................................................12
8. Termination....................................................................................15
9. Covenants......................................................................................16
10. Announcements And Information..................................................................17
11. Further Assurance..............................................................................18
12. General........................................................................................18
13. Contracts (Rights Of Third Parties) Act 1999...................................................18
14. Notices........................................................................................19
15. Governing Law And Jurisdiction.................................................................19
16. Counterparts...................................................................................19
Schedule 1 DOCUMENTS DELIVERED AND TO BE DELIVERED..........................................20
Schedule 2 WARRANTIES.......................................................................26
Schedule 3 WARRANTIES CERTIFICATE...........................................................35
3
THIS AGREEMENT is made on 2 July, 2001
BETWEEN:
(1) XXXXX HOLDINGS PLC, a company incorporated in Northern Ireland
(registered no. NI 025836), whose registered office is at Xxxxxx
Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx Xxxxxxx, XX00 0XX ("XXXXX"); and
(2) XXXXXXX XXXXX INTERNATIONAL, a company incorporated in England and Wales
(registered no. 2312079) whose registered office is at Ropemaker Place,
00 Xxxxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX ("XXXXXXX XXXXX").
WHEREAS Xxxxx and the Selling Shareholders propose to offer Ordinary Shares in
the Offers, comprising the Open Offer to Qualifying Shareholders and the
International Offer, each as described in the Offer Documents. It is proposed
that Xxxxxxx Xxxxx will act as global co-ordinator of the Offers. It is also
proposed that Xxxxxxx Xxxxx will act as agent of Xxxxx in relation to the Open
Offer on the terms and conditions of this agreement and of the Open Offer.
Application has been made for Admission and Xxxxxxx Xxxxx has agreed to act as
sponsor in connection with the application.
THE PARTIES AGREE as follows:
1. INTERPRETATION
1.1 In this Agreement:
"ACT" means the Companies (Northern Ireland) Order 1986;
"ADMISSION" means admission of the New Shares to the Official List of the
UK Listing Authority and The Irish Stock Exchange and to Trading and a
reference to Admission becoming "EFFECTIVE" is to be construed in
accordance with paragraph 7.1 of the Listing Rules;
"ADSs" means American Depository Shares, each representing an ownership
interest in four Ordinary Shares;
"APPLICATION FORM" means the application form on which Qualifying
Shareholders (other than US Shareholders) can apply for shares under the
Open Offer;
"APPLICABLE IRISH SECURITIES LAW" means the Companies Acts, 1963 to 1999,
the European Communities (Transferable Securities and Stock Exchange)
Regulations, 1992 and the European Communities (Stock Exchange)
Regulations, 1984 of Ireland;
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
clearing banks are open for business in London;
"CANADIAN PROSPECTUS" means the document pursuant to which the
International Offer will be made to investors in Canada (in preliminary
and final form);
"CLOSING DATE" means the date falling 3 Business Days after the date of
the Purchase Agreement or such other date as the parties may agree;
-1-
4
"COMMISSION" means the US Securities and Exchange Commission;
"CREST" means the relevant system, as defined in the Uncertificated
Securities Regulations 1995;
"CRESTCO" means CrestCo Limited, the operator of the "relevant system" as
defined in the Uncertificated Securities Regulations 1995;
"DEPOSITORY" means the Bank of New York;
"DIRECTOR" means a person specified in the UK Prospectus as taking
responsibility for the UK Prospectus and "DIRECTORS" means all those
persons;
"EXCHANGE ACT" means the US Securities Exchange Act of 1934, as amended;
"FSA" means the Financial Services Xxx 0000, as amended;
"GROUP" means Xxxxx and its subsidiary undertakings;
"GROUP COMPANY" means Xxxxx or any of its subsidiary undertakings;
"INDEMNIFIED PERSON" means Xxxxxxx Xxxxx and each of its subsidiaries and
holding companies and the subsidiaries of any such holding company and
its and their respective directors, officers, employees and agents, and
any person who controls Xxxxxxx Xxxxx within the meaning of section 15 of
the Securities Act or section 20 of the Exchange Act;
"INTERIM STATEMENT" means the Interim Financial Statement for Xxxxx in UK
GAAP and US GAAP for the 3 month and 6 month periods ended 31 March 2001
set out in the Registration Statement;
"INTERNATIONAL OFFER" means the proposed offering by the Underwriters on
a non-pre-emptive basis of New Shares (excluding those New Shares taken
up by Qualifying Shareholders under the Open Offer) and the Sale Shares,
in a public offering in the United States and an offering to certain
other investors outside the United States;
"INTERNATIONAL PROSPECTUS" means the document pursuant to which the
International Offer will be made to investors outside the United States
of America and Canada (in preliminary and final form);
"IRISH STOCK EXCHANGE" means The Irish Stock Exchange Limited or any
successor as the context requires;
"LISTING RULES" means, together, the rules made by the UK Listing
Authority pursuant to section 142 of the FSA and by the Board of The
Irish Stock Exchange pursuant to the European Communities (Stock
Exchange) Regulations, 1984 of Ireland as amended from time to time;
"LONDON STOCK EXCHANGE" means London Stock Exchange plc or any successor
as the context requires;
"NEW SHARES" means the new Ordinary Shares to be issued pursuant to the
Offers;
-2-
5
"OFFER PRICE" means the issue price of the New Shares and the sale price
of any Sale Shares to be determined following the closure of the
bookbuilding exercise as described in the Offer Documents;
"OFFERS" means the Open Offer and the International Offer;
"OFFER DOCUMENTS" means the US Prospectus, the Canadian Prospectus, the
International Prospectus the UK Prospectus, the UK Pricing Prospectus and
any amendments or supplements thereto;
"OPEN OFFER" means the offer on a pre-emptive basis of the Open Offer
Shares to Qualifying Shareholders pursuant to the UK Prospectus and the
US Prospectus;
"OPEN OFFER SHARES" means New Shares validly subscribed for and to be
issued pursuant to the Open Offer;
"OPEN OFFER TERMS AND CONDITIONS" means the terms and conditions of the
Open Offer as set out in Parts II and III of the UK Prospectus and the
Application Form.
"ORDINARY SHARES" means ordinary shares of 10p each in the capital of
Xxxxx;
"OVER-ALLOTMENT OPTION" means the option to be granted under the Purchase
Agreement by the Selling Shareholders to Xxxxxxx Xxxxx (on behalf of the
Underwriters) to call for the sale of Ordinary Shares with an aggregate
value at the Offer Price not exceeding 15 per cent of the total value of
the Offers, as described in the Offer Documents;
"PRESS ANNOUNCEMENT" means the announcement of the Offers issued by Xxxxx
on 2 July 2001;
"PURCHASE AGREEMENT" means the underwriting agreement in agreed form
expected to be entered into between Xxxxx, the Selling Shareholders and
the Underwriters on or about 26 July 2001;
"PWC" means PricewaterhouseCoopers of Fanum House, 000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxxxx XX0 0XX;
"QUALIFYING SHAREHOLDERS" means holders of Ordinary Shares on the
register of members of Xxxxx as at 25 June 2001 who are eligible to be
offered Open Offer Shares;
"REGISTRATION" means delivery for registration of duplicate copies of the
UK Prospectus, the UK Pricing Prospectus, or any other Supplementary
Prospectus in connection with the Open Offer to the Registrar of
Companies as required by section 149 of the FSA and also to the Registrar
of Companies in Ireland pursuant to the Companies Xxx 0000 and the
European Communities (Transferable Securities and Stock Exchange)
Regulations, 1992 of Ireland;
"REGISTRAR" means Computershare Services PLC of Xxx Xxxxxxxxx, Xxxxxxxxxx
Xxxx, Xxxxxxx XX00 0XX;
-3-
6
"REGISTRATION STATEMENT" means that part of the registration statement on
Form F-1 under the Securities Act that is appended to and forms part of
the UK Prospectus and the US Prospectus (in preliminary and final form);
"SALE SHARES" means Ordinary Shares with an aggregate value at the Offer
Price not exceeding (pound)100 million (and any Ordinary Shares, the
subject of the Over-allotment Option) to be offered in the International
Offer on behalf of the Selling Shareholders;
"SECURITIES ACT" means the US Securities Act of 1933, as amended;
"SELLING SHAREHOLDERS" means the persons named as such in the Offer
Documents;
"SUPPLEMENTARY PROSPECTUS" means any supplementary prospectus prepared in
accordance with clause 4 for the purposes of section 147 of the FSA
and/or regulation 3 of the European Communities (Stock Exchange)
Regulations, 1984 of Ireland and the Listing Rules;
"TRADING" means the proposed admission to trading of the New Shares on
the London Stock Exchange's market for listed securities and the Irish
Stock Exchange;
"US APPLICATION FORM" means the form of conditional offer to purchase on
which US Shareholders can apply under the Open Offer;
"UK PRICING PROSPECTUS" means the Supplementary Prospectus expected to be
published on 26 July 2001 in relation to the Offers containing inter
alia, the Offer Price;
"UK PROSPECTUS" means the document dated 2 July 2001 which attaches and
incorporates an extract from the Registration Statement and comprises a
prospectus in accordance with the Listing Rules, together with the
Application Form;
"UNDERWRITERS" means, if the Purchase Agreement is signed, Xxxxxxx Xxxxx,
and such other persons as set forth in Schedule A to the Purchase
Agreement upon its execution;
"US PROSPECTUS" means the document pursuant to which the International
Offer will be made to investors in the United States of America and the
Open Offer will be made to Qualifying Shareholders who are US
Shareholders (in preliminary and final form) and the accompanying US
Application Form;
"US SHAREHOLDER" means a Qualifying Shareholder who is a US person as
defined in Regulation S under the Securities Act;
"VALID APPLICATION" means in the case of a Qualifying Shareholder who is
not a US Shareholder an application on an Application Form in respect of
Open Offer Shares which is signed, completed and delivered in accordance
with the Open Offer Terms and Conditions, is accompanied by a remittance
for the amount payable in relation thereto, complies in all other
respects with the Open Offer Terms and Conditions and is received prior
to 24 July 2001 in respect of the Open Offer, and in the case of a US
Shareholder only, an application by a US Person who has submitted a US
Application Form in respect of Open Offer Shares which is signed,
completed and delivered in accordance with the terms and conditions set
out in the US Prospectus (the "US OPEN OFFER TERMS AND CONDITIONS") and
who otherwise complies with all US Open Offer Terms and Conditions
-4-
7
including following the US Prospectus having been declared effective by
the Commission, submitting a remittance for the amount payable in
relation to the shares the subject of the US Application Form received
prior to 19 July 2001, provided that, for the purposes of this Agreement,
a Valid Application includes any application which may be rejected by
Xxxxx pursuant to the Open Offer Terms and Conditions or the US Open
Offer Terms and Conditions as the case may be;
"VERIFICATION NOTES" means the verification notes prepared by Ashurst
Xxxxxx Xxxxx in connection with the information contained in the UK
Prospectus;
"WARRANTY" means a statement contained in schedule 2 and "WARRANTIES"
means all those statements;
"WORKING CAPITAL REPORT" means the report on the consolidated cash flow
forecast and working capital projections of the Group to the period
ending on 31 December 2001 and cash flow projections for the Group to 31
December 2002;
1.2 In this Agreement, a reference to:
1.2.1 a "SUBSIDIARY UNDERTAKING" or "PARENT UNDERTAKING" is to be
construed in accordance with the Act and a "SUBSIDIARY" or
"HOLDING COMPANY" is to be construed in accordance with the Act
(other than in relation to Xxxxxxx Xxxxx, where such expressions
shall be construed in accordance with the UK Companies Act 1985);
1.2.2 a document in the "AGREED FORM" is a reference to a document in a
form approved and for the purposes of identification signed by or
on behalf of each party or in another form as may be agreed by or
on behalf of each party;
1.2.3 a statutory provision includes a reference to the statutory
provision as modified or re-enacted or both from time to time
before the date of this Agreement and any subordinate legislation
made under the statutory provision before the date of this
Agreement;
1.2.4 costs includes a reference to costs, charges and expenses of every
description;
1.2.5 a "CERTIFIED COPY" is a reference to a document certified by a
director of Xxxxx or the secretary of Xxxxx or Xxxxxxx Xxxxxx
Xxxxx as being a true copy;
1.2.6 a person includes a reference to any body corporate, association
or partnership; and
1.2.7 a clause, recital or schedule, unless the context requires
otherwise, is a reference to a clause or recital of or a schedule
to this Agreement.
1.3 The headings in this Agreement do not affect its interpretation.
2. APPOINTMENT OF XXXXXXX XXXXX
2.1 Xxxxx irrevocably appoints Xxxxxxx Xxxxx as the sponsor for the purposes
of the application for Admission of the New Shares and as its agent for
the purpose of making
-5-
8
the Open Offer on the terms of the Open Offer Terms
and Conditions and in the manner described in the Offer Documents and
Xxxxxxx Xxxxx hereby accepts such appointment on and subject to the terms
set out in this Agreement.
2.2 Xxxxxxx Xxxxx shall not be under any obligation to procure purchasers for
or to purchase any Open Offer Shares not taken up by Qualifying
Shareholders in the Open Offer unless and to the extent that such
obligation arises in due course under the Purchase Agreement (if and when
the Purchase Agreement is entered into).
2.3 Xxxxx confirms that the appointment described in clause 2.1 confers on
Xxxxxxx Xxxxx all xxxxxx, authorities and discretions on behalf of Xxxxx
which are necessary for or incidental to the application for Admission
and the Open Offer (including the power to appoint sub-agents or to
delegate the exercise of any of its powers, authorities or discretions to
such persons as Xxxxxxx Xxxxx may think fit,) and hereby agrees to ratify
and confirm (whether before or after termination of this Agreement)
everything which Xxxxxxx Xxxxx shall lawfully and properly have done or
shall do in the exercise of such powers, authorities and discretions.
3. APPLICATION FOR ADMISSION AND REGISTRATION AND THE OPEN OFFER
3.1 Xxxxx has delivered to Xxxxxxx Xxxxx the documents referred to in part 1
of schedule 1 in the numbers and complying with the execution
requirements as set out in schedule 1.
3.2 After the execution and delivery of this Agreement and before publication
of the UK Prospectus, Xxxxx shall deliver or procure the delivery to
Xxxxxxx Xxxxx evidence in a form satisfactory to Xxxxxxx Xxxxx of formal
approval of the UK Prospectus by the UK Listing Authority and The Irish
Stock Exchange pursuant to the Listing Rules.
3.3 Xxxxx shall provide or procure the provision of all information and
execute or procure the execution of all documents required by the UK
Listing Authority and/or the Irish Stock Exchange for the purposes of the
application for Admission and shall comply fully with all relevant
provisions of the Act, the FSA, the Companies Act, 1963 of Ireland and
Applicable Irish Securities Law and the Listing Rules. Xxxxx further
undertakes with Xxxxxxx Xxxxx to use all reasonable endeavours to procure
that Admission becomes effective by not later than 31 July 2001 (or such
later date as the parties may agree).
3.4 Xxxxx undertakes to Xxxxxxx Xxxxx that on receipt of the approval or
authorisation of the UK Listing Authority and the Irish Stock Exchange
referred to in clause 3.2 it will promptly (i) procure Registration of
the UK Prospectus; and (ii) procure delivery to the Registrar of
Companies for Ireland of a copy of the UK Prospectus for registration in
compliance with the Companies Act, 1963 and the European Communities
(Transferable Securities and Stock Exchanges) Regulations 1992 of
Ireland.
3.5 Xxxxx shall make available:
3.5.1 for inspection the documents stated in the UK Prospectus as being
available for inspection at the place and times stated in the UK
Prospectus; and
3.5.2 free of charge sufficient copies of the UK Prospectus in
accordance with the requirements of the Listing Rules.
-6-
9
3.6 Xxxxxxx Xxxxx shall give Xxxxx all assistance which it reasonably
requires in connection with the application for Admission and, in
particular, but without restricting the generality of the foregoing,
shall prepare and deliver (or procure to be prepared and delivered) to
the UK Listing Authority and The Irish Stock Exchange the documents
referred to in part 3 of schedule 1.
3.7 Immediately following execution of this Agreement, subject to clause 3.1
having been complied with, Xxxxxxx Xxxxx shall (on behalf of Xxxxx)
release the Press Announcement to the Company Announcements Office of the
London Stock Exchange, The Irish Stock Exchange and to the press.
3.8 Xxxxx agrees to procure that, subject to clause 3.4 having been complied
with, the UK Prospectus is posted to all Qualifying Shareholders (other
than those who are US Shareholders) and the US Prospectus (in preliminary
form) is posted to all US Shareholders as soon as reasonably practicable.
3.9 Xxxxx shall deliver or procure to be delivered to Xxxxxxx Xxxxx:
3.9.1 the documents set out in part 2 of schedule 1 not later than
5 days before the date set for consideration by the UK Listing
Authority and The Irish Stock Exchange of the application for
Admission;
3.9.2 the documents set out in part 4 of schedule 1 not later than the
date set for publication of the UK Pricing Prospectus; and
3.9.3 the documents set out in part 5 of schedule 1 immediately prior to
Admission;
in each case in the numbers and complying with the execution
requirements as set out in schedule 1.
3.10 Xxxxx undertakes to Xxxxxxx Xxxxx that it will:
3.10.1 promptly on or before the Closing Date procure the registration as
members of Xxxxx of those persons who have subscribed for Open
Offer Shares in the Open Offer pursuant to and on the Open Offer
Terms and Conditions or the US Open Offer Terms and Conditions;
3.10.2 (i) procure the issue to Qualifying Shareholders holding or who
held Ordinary Shares in Xxxxx in certificated form of definitive
share certificates in respect of the Open Offer Shares for which
they have subscribed in accordance with the Open Offer Terms and
Conditions or the US Open Offer Terms and Conditions; (ii) use all
reasonable endeavours to ensure that Open Offer Shares subscribed
for by Qualifying Shareholders holding or who held their Ordinary
Shares in uncertificated form, are admitted to CREST as
participating securities with effect from Admission as soon as
practicable following Admission and are enabled within CREST;
(iii) procure that the Registrar confirms to CRESTCo that it is
the registrar for such Qualifying Shareholders Open Offer Shares;
and (iv) procure the crediting of the appropriate number of Open
Offer Shares to the accounts of such Qualifying Shareholders; and
-7-
10
3.10.3 procure the timely delivery to the UK Listing Authority of an
executed declaration in the form set out in schedule 6 to the
Listing Rules and any other documents which the UK Listing
Authority may require.
4. PRICING PROSPECTUS AND SUPPLEMENTARY PROSPECTUSES
4.1 The Offer Price shall (if it is so agreed) be agreed between Xxxxx, the
Selling Shareholders and Xxxxxxx Xxxxx. Xxxxx agrees that it will consult
with Xxxxxxx Xxxxx as to the remaining contents of the UK Pricing
Prospectus and take into account all reasonable requirements of Xxxxxxx
Xxxxx in relation thereto. Subject to the approval of the UK Pricing
Prospectus by the UK Listing Authority and The Irish Stock Exchange in
accordance with the Listing Rules, Xxxxx shall procure delivery to the
Registrar of Companies for Northern Ireland and the Registrar of
Companies in Ireland of two copies of the UK Pricing Prospectus for
Registration. Xxxxx will procure to be delivered to Xxxxxxx Xxxxx, not
later than 9.00 a.m. (or such later time as Xxxxxxx Xxxxx may agree) on
the Business Day following such delivery to the Registrars of Companies,
evidence, in a form satisfactory to Xxxxxxx Xxxxx, of such Registration.
4.2 Xxxxx will procure that the UK Pricing Prospectus is published in
accordance with the Listing Rules and that:
4.2.1 sufficient copies of the UK Pricing Prospectus are made available
to those persons (other than US Shareholders) to whom the Open
Offer is being made, as described in the UK Pricing Prospectus, on
and from the date of the UK Pricing Prospectus and that sufficient
copies of the US Prospectus (in final form) are made available to
US Shareholders who have submitted Valid Applications, on and from
the date of the US Prospectus (in final form);
4.2.2 sufficient copies of the UK Pricing Prospectus are made available
at the registered office of Xxxxx and at the UK Listing Authority
in accordance with the requirements of the UK Listing Authority
from the date of the UK Pricing Prospectus; and
4.2.3 the documents (if any) stated in the UK Pricing Prospectus as
being available for inspection are made so available from the date
of the UK Pricing Prospectus.
4.3 Xxxxx agrees to comply with Section 147 of the FSA and Applicable Irish
Securities Law including Part XII Companies Act 1963 and Xxxxx agrees
that it will promptly:
4.3.1 notify Xxxxxxx Xxxxx if, at any time prior to Admission, it
becomes aware that circumstances have arisen which require or may
require the publication of any Supplementary Prospectus in
addition to the UK Pricing Prospectus;
4.3.2 consult with Xxxxxxx Xxxxx as to the contents of any Supplementary
Prospectus and take into account all reasonable requirements of
Xxxxxxx Xxxxx in relation thereto;
4.3.3 publish such Supplementary Prospectus in such manner as may be
required by the Listing Rules; and
-8-
11
4.3.4 furnish to Xxxxxxx Xxxxx copies of any Supplementary Prospectus in
such numbers as they may from time to time reasonably request.
4.4 Where a Supplementary Prospectus (including, but not limited to the UK
Pricing Prospectus) is published in connection with Admission, references
in this Agreement (including, for the avoidance of doubt, in schedule 2)
to the UK Prospectus are, as the context permits, to be read as
references to the Supplementary Prospectus or, as the context may
require, the UK Prospectus and the Supplementary Prospectus taken
together.
5. FEES, COMMISSIONS AND COSTS
5.1 Subject to the Purchase Agreement having been entered into, having become
unconditional and not having been terminated in accordance with its
terms:
5.1.1 Xxxxx agrees that it will pay to Xxxxxxx Xxxxx on the Closing Date
for each Open Offer Share for which a Valid Application has been
received, an agency commission of 4% of the Offer Price of each
such Open Offer Share (the "OPEN OFFER COMMISSION"); and
5.1.2 in addition, Xxxxx shall pay to such of the Underwriters as Xxxxx
shall determine and in such proportions as it shall determine in
its absolute discretion, on the Closing Date, an incentive fee of
up to 1% of the Offer Price of each Open Offer Share for which a
Valid Application has been received (the "OPEN OFFER INCENTIVE
FEE").
Xxxxx agrees that Xxxxxxx Xxxxx shall be entitled to deduct the Open
Offer Commission and the Open Offer Incentive Fee (if and to the extent
that Xxxxx has agreed to pay such Open Offer Incentive Fee to Xxxxxxx
Xxxxx) from the proceeds payable to Xxxxx from the International Offer on
the Closing Date under the Purchase Agreement, provided that, if the Open
Offer Commission together with any Open Offer Incentive Fee owed to
Xxxxxxx Xxxxx (or, in the case of the Open Offer Incentive Fee, to some
or all of the Underwriters) exceeds the aggregate proceeds due to Xxxxx
from the International Offer, Xxxxxxx Xxxxx as agent for the Underwriters
shall be entitled to recover such shortfall from Xxxxx in full at such
time. Any such off-setting shall satisfy the obligations of Xxxxx in full
and Xxxxx will not be responsible for the application of funds off-set by
Xxxxxxx Xxxxx in paying its agents.
For the avoidance of doubt Xxxxx shall not be obliged to pay the Open
Offer Incentive Fee in relation to any New Share in respect of which it
has paid an Incentive Fee pursuant to paragraph 2(f) of the Purchase
Agreement.
In addition, in accordance with clause 5.2, Xxxxxxx Xxxxx shall be
entitled to off-set, against payment of the proceeds to Xxxxx from the
International Offer on the Closing Date, any amounts advanced by Xxxxxxx
Xxxxx for expenses that Xxxxx has agreed to pay under clause 5.2.
5.2 Whether or not the Offers proceed, Xxxxx shall pay or cause to be paid
all expenses incident to the performance of its obligations under this
Agreement and under the Purchase Agreement, including, without
limitation, (i) the preparation, printing and filing
-9-
12
of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of the Purchase
Agreement, any agreement among Underwriters, this Agreement and such
other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of Ordinary Shares, (iii) the
preparation, issuance and delivery of the certificates for the Ordinary
Shares to the Underwriters or initial purchasers procured by the
Underwriters, (iv) all costs incurred by Xxxxx and Xxxxxxx Xxxxx in
connection with this Agreement (other xxxx Xxxxxxx Xxxxx'x legal fees)
(v) the fees and disbursements of Galen's counsel, accountants and other
advisers, (vi) the qualification of the New Shares and the Sale Shares
under securities laws in accordance with the Purchase Agreement,
including filing fees and in connection with the preparation, printing
and delivery to the Underwriters of copies of a Blue Sky survey and any
supplement thereto, (vii) the printing and delivery to the Underwriters
and the Qualifying Shareholders of copies of the Offer Documents and any
other document published in connection with the Offers and any amendments
or supplements thereto, (viii) the fees and expenses of any transfer
agent or registrar for Ordinary Shares, (ix) the filing fees incident to
the review by the National Association of Securities Dealers, Inc.
("NASD") of the terms of the sale of any Ordinary Shares, (x) the fees
and expenses incurred in connection with the inclusion of any Ordinary
Shares in the form of ADSs, in the Nasdaq National Market, (xi) the fees
and expenses (including fees and disbursements of counsel) of the
depository or any nominee or custodian appointed in connection with the
Offers, (xii) the fees and expenses of any process agent, (xiii) the
costs of preparing and distributing ADR certificates evidencing the ADSs
and share certificates in respect of the New Shares and Sale Shares,
(xiv) all expenses and fees in connection with the listing on the
Official List, or the application for trading of the New Shares on the
London Stock Exchange or the Irish Stock Exchange, the quotation of the
ADSs on the Nasdaq National Market, and the obtaining of any approvals in
connection with the sale of any Ordinary Shares from the relevant
authorities in the UK, the Republic of Ireland or the United States; (xv)
any and all UK stamp duty, Stamp Duty Reserve Tax or similar issuance or
transfer tax relating to the New Shares, including any costs, interest
and penalties arising from or in connection with, the creation, issuance,
sale and delivery by Xxxxx to the Underwriters or the initial subscribers
procured by the Underwriters of the New Shares; the issue of any such New
Shares to and the deposit of them in the form of ADSs with any
depository; the initial sale or subscription by the Underwriters of any
New Shares, (ii) all costs and expenses of the Underwriters, other than
the fees and disbursements of counsel to the Underwriters (iii) all
roadshow expenses including expenses incurred by Xxxxxxx Xxxxx, (iv) the
costs and charges of any transfer agent, registrar or receiving bank in
connection with the Open Offer, and (xix) any value added tax properly
charged on any of the foregoing items.
5.3 If in accordance with clauses 5.1 and 5.2, Xxxxx reimburses Xxxxxxx Xxxxx
in respect of any of the items specified in those clauses, Xxxxx shall
also pay to Xxxxxxx Xxxxx in respect of value added tax:
5.3.1 if the reimbursement constitutes part of the consideration for a
supply of goods or services by Xxxxxxx Xxxxx to Xxxxx, an amount
equal to any value added tax charged to Xxxxxxx Xxxxx on the item
in respect of which Xxxxxxx Xxxxx certifies
-10-
13
that it is unable to take credit or make recovery (the certificate
to be conclusive in the absence of manifest error) and the amount
of value added tax for which Xxxxxxx Xxxxx is properly liable in
respect of the supply by it to Xxxxx; and
5.3.2 if the reimbursement is for costs incurred by Xxxxxxx Xxxxx as
agent of Xxxxx, any value added tax charged on the item.
6. REPRESENTATIONS AND WARRANTIES
6.1 Xxxxx warrants to Xxxxxxx Xxxxx that each Warranty is true and accurate
and not misleading at the date of this Agreement.
6.2 Xxxxx acknowledges that Xxxxxxx Xxxxx is entering into this Agreement in
reliance on each Warranty which has also been given as a representation
and with the intention of inducing Xxxxxxx Xxxxx to enter into this
Agreement.
6.3 Each Warranty is to be construed independently and (except where this
Agreement provides otherwise) is not limited by a provision of this
Agreement or another Warranty.
6.4 Except to the extent necessary to implement this Agreement, Xxxxx shall
not do, or omit to do, anything which would or might cause a Warranty to
become untrue, inaccurate or misleading at any time before Admission
becomes effective.
6.5 Xxxxx shall promptly notify Xxxxxxx Xxxxx if it becomes aware of a fact
or circumstance which constituted a breach of clause 6.1 or has caused or
would or might cause a Warranty to become untrue, inaccurate or
misleading at any time before Admission becomes effective by reference to
the facts or circumstances existing at that time.
6.6 If Xxxxxxx Xxxxx is notified under clause 6.5 or otherwise becomes aware
of a fact or circumstance which constituted a breach of clause 6.1 or has
caused a Warranty to become in any respect untrue, inaccurate or
misleading at any time before Admission becomes effective, Xxxxxxx Xxxxx
may require Xxxxx (at the expense of Xxxxx) to make or cause to be made
such announcement and/or despatch such communication as Xxxxxxx Xxxxx
shall, after consultation with Xxxxx, consider necessary acting
reasonably and having regard to the FSA, Applicable Irish Securities Law
referred to in this Agreement, the Listing Rules and the Admission and
Disclosure Standards of the London Stock Exchange and The Irish Stock
Exchange and all applicable laws and regulations.
6.7 A reference in schedule 2 to the knowledge, information, belief or
awareness of Xxxxx includes knowledge, information, belief or awareness
which Xxxxx would have if the executive Directors of Xxxxx had made all
due and careful enquiries.
6.8 The Warranties given pursuant to schedule 2 shall remain in full force
and effect notwithstanding the completion of the Open Offer and all other
matters and arrangements referred to in or contemplated by this
Agreement.
6.9 The Warranties relating to the Offer Documents (or any of them) given
pursuant to this clause 6 shall be deemed to be repeated on the date of
publication of the UK Pricing Prospectus and of each and every other
Supplementary Prospectus.
-11-
14
6.10 Any certificate signed by any officer of Xxxxx and delivered to Xxxxxxx
Xxxxx or its legal advisers pursuant to this Agreement shall be deemed a
representation and a Warranty as at the date thereof by Xxxxx to Xxxxxxx
Xxxxx as to the matters covered thereby.
7. INDEMNITY AND EXCLUSION OF LIABILITY
7.1 Xxxxx agrees with Xxxxxxx Xxxxx, to indemnify and hold harmless each
Indemnified Person as follows:
(a) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any of
the Offer Documents (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements
therein in the light of the circumstances under which they were
made, not misleading;
(b) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission provided that (subject to clause 7.5 below) any such
settlement is effected with the written consent of Xxxxx;
(c) against any and all expense whatsoever, as incurred (including the
fees and disbursements of counsel chosen by Xxxxxxx Xxxxx),
reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission to the extent that
any such expense is not paid under (a) or (b) above; and
(d) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of or based upon any act or
failure to act, or alleged act or failure to act by an Indemnified
Person including, for the avoidance of doubt:
(i) in connection with the issue or approval of the contents of
any investment advertisement issued on or after the date of
this Agreement in connection with the Offers for the
purposes of section 57(1) FSA or section 23 of the
Investment Intermediaries Act, 1995 of Ireland or Section
31 of the Stock Exchange Act, 1995 of Ireland; and
(ii) in its capacity as agent in relation to the Open Offer or
as sponsor to Galen's application for Admission.
provided, however, that this indemnity shall not apply to any loss,
liability, claim, damage or expense to the extent (a) arising out of any
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to
Xxxxx by Xxxxxxx Xxxxx expressly for use in the Offer Documents (or any
amendment thereto) or (b) under subparagraph (d) above only, that it
-12-
15
has been determined by a court of competent jurisdiction (not subject to
further appeal) to have resulted from the gross negligence, wilful
default or bad faith of Xxxxxxx Xxxxx or a material breach by Xxxxxxx
Xxxxx of its obligations under this Agreement unless in any case the
loss, liability, claim, damage or expense also arises out of a breach by
Xxxxx of a provision of this Agreement.
7.2 Xxxxxxx Xxxxx shall give notice as promptly as reasonably practicable to
Xxxxx of any action commenced against an Indemnified Person in respect of
which indemnity may be sought hereunder, but failure to so notify Xxxxx
shall not relieve Xxxxx from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account
of this indemnity.
7.3 Counsel to the Indemnified Persons shall be selected by Xxxxxxx Xxxxx.
Xxxxx may participate at its own expense in the defence of any such
action; provided, however, that counsel to Xxxxx shall not (except with
the consent of Xxxxxxx Xxxxx) also be counsel to the Indemnified Person.
In no event shall Xxxxx be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own
counsel in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
7.4 Xxxxx shall not, without the prior written consent of Xxxxxxx Xxxxx,
settle or compromise or consent to the entry of any judgment with respect
to any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification could be sought under this clause 7
(whether or not the Indemnified Persons are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each Indemnified Person from all liability
arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any Indemnified
Person.
7.5 If at any time an Indemnified Person shall have requested Xxxxx to
reimburse the Indemnified Person for fees and expenses of counsel, Xxxxx
agrees that it shall be liable for any settlement of the nature
contemplated by clause 7.1(b) effected without its written consent if (i)
such settlement is entered into more than 45 days after receipt by Xxxxx
of the aforesaid request, (ii) Xxxxx shall have received notice of the
terms of such settlement at least 30 days prior to such settlement being
entered into, and (iii) Xxxxx shall not have reimbursed such Indemnified
Person in accordance with such request prior to the date of such
settlement.
7.6 If Xxxxx is notified of a claim, action, investigation or proceeding made
or threatened to be made against an Indemnified Person, it shall provide
such Indemnified Person with such information and assistance in relation
thereto as the Indemnified Person may reasonably require.
7.7 If Xxxxx agrees any limitation (a "RELEVANT LIMITATION") on the extent to
which it may claim against any third party (each a "THIRD PARTY") in
connection with the Offers or Admission or Trading and Xxxxx suffers any
loss, damage, liability, expense or claim for
-13-
16
which any Indemnified Person is (in whole or in part) jointly or
severally responsible with any such Third Party(s) and/or any other
person, the maximum aggregate amount of the Indemnified Persons'
liability will be limited to such amount as the relevant Indemnified
Persons agree or is judicially determined to be just and equitable having
regard to the relative responsibility of the Indemnified Persons so
liable, the Third Party(s) and any other person, without regard to any
Relevant Limitations. The extent to which such liability, cost, expense,
damage or loss may be recoverable from any Indemnified Person will be no
more than it would have been had no Relevant Limitation been agreed by
Xxxxx.
7.8 If an Indemnified Person is liable for any liability, cost, expense,
damage or loss suffered by, or is liable to make any contribution to, any
person other than Xxxxx in respect of the performance of its obligations
under this Agreement or the provision of its services to Xxxxx whether
under this Agreement or otherwise, Xxxxx will indemnify that Indemnified
Person for any amount which it would have been entitled to recover from a
Third Party (pursuant to the Civil Liability (Contributions) Xxx 0000 or
otherwise) but for a Relevant Limitation.
7.9 If the United Kingdom Inland Revenue or any other taxing authority in any
jurisdiction brings into charge to taxation any sum payable to Xxxxxxx
Xxxxx or another Indemnified Person under this Agreement (other than the
costs payable pursuant to clause 5.1), then (to the extent that the loss,
damage, liability, cost, charge or expense in respect of which the sum is
payable is not allowable to the relevant Indemnified Person as a
deduction for tax purposes against the sum so payable and in the same
accounting period as that in which such sum is brought into charge to
tax) the sum so payable shall be grossed up by such amount as will ensure
that after deduction of the taxation so chargeable there shall remain a
sum equal to the amount that would otherwise be payable under this
Agreement.
7.10 All sums payable to Xxxxxxx Xxxxx or another Indemnified Person under
this Agreement shall be paid free and clear of all deductions or
withholdings unless the deduction or withholding is required by law, in
which event the payer shall pay such additional amount as shall be
required to ensure that the net amount received by the Indemnified Person
concerned will equal the full amount which would have been received by it
had no such deduction or withholding been made.
7.11 Notwithstanding any other provision of this Agreement, no Indemnified
Person shall be liable to Xxxxx for, or shall lose the benefit of the
provisions of this clause 7 or the other provisions of this Agreement as
a result of, any delay in performance or non-performance of its
obligations arising under, out of, or in connection with, this Agreement
where such performance is delayed or prevented by circumstances beyond
its reasonable control.
7.12 Xxxxx agrees with Xxxxxxx Xxxxx that no Indemnified Person shall have any
liability (whether direct or indirect, in contract, tort or otherwise) to
Xxxxx or any person or entity asserting claims on behalf of or in right
of Xxxxx for or in connection with any matter referred to in this
Agreement or otherwise in connection with the Offers or Admission or
Trading except in relation to a matter referred to in clause 7.1(d)(i)
and (ii) only, to the
-14-
17
extent that any loss, liability, claim, damage or expense incurred by
Xxxxx has been determined by a court of competent jurisdiction (not
subject to further appeal) to have resulted from the gross negligence,
wilful default or bad faith of Xxxxxxx Xxxxx or a material breach by
Xxxxxxx Xxxxx of its obligations under this Agreement unless in any case
the loss, liability, claim, damage or expense also arises out of a breach
by Xxxxx of a provision of this Agreement.
7.13 The provisions of Clauses 7.1 to 7.12 will remain in full force and
effect notwithstanding the completion of all matters and arrangements
referred to in or contemplated by this Agreement.
7.14 The indemnities set out or referred to in this Agreement shall be in
addition to and shall not be construed to limit, affect or prejudice any
other right or remedy available to any Indemnified Person.
8. TERMINATION
8.1 If at any time before Admission becomes effective either:
8.1.1 Xxxxxxx Xxxxx is of the opinion that Xxxxx has failed to comply or
cannot comply with any of its obligations under this Agreement or
has otherwise breached this Agreement; or
8.1.2 Xxxxxxx Xxxxx is of the opinion that Xxxxx has failed to satisfy
all applicable conditions for Admission and other relevant
requirements of the Listing Rules; or
8.1.3 it shall come to the notice of Xxxxxxx Xxxxx that any statement
contained in any of the Offer Documents has become or been
discovered to be untrue, incorrect or misleading or that there has
been a breach of any of the Warranties or undertakings contained
in or given pursuant to this Agreement,
then Xxxxxxx Xxxxx shall consult with Xxxxx to the extent practicable but
may, in its absolute discretion by notice to Xxxxx, terminate this
Agreement.
8.2 If this Agreement is terminated pursuant to clause 8.1 or if the Offer
Price is set at a level which is less than 90 per cent. of the middle
market quotation of the Ordinary Shares (as derived from the Daily
Official List of the London Stock Exchange and The Irish Stock Exchange
on the dealing day before the announcement of the Offer Price) or if the
Purchase Agreement has not been entered into by 31 July 2001 or if the
Purchase Agreement is terminated in accordance with its terms, the
obligations of Xxxxxxx Xxxxx and the obligations of Xxxxx under this
Agreement shall cease and determine and none of the parties shall have
any claim against any other in relation thereto save that:
(a) clauses 1, 5, 7 and 12 to 15 shall continue in full force and
effect;
(b) such termination shall not prejudice any accrued rights or claims
by any party against any other party; and
(c) Xxxxxxx Xxxxx shall be entitled at any time on behalf of Xxxxx to
withdraw any application to the UK Listing Authority and The Irish
Stock Exchange for
-15-
18
Admission and to require Xxxxx (or failing which itself) to make
an announcement of such withdrawal.
9. COVENANTS
9.1 Between the date of this Agreement and Admission becoming effective,
Xxxxx shall not, and shall procure that each Group Company will not,
without the prior written consent of Xxxxxxx Xxxxx (which is not to be
unreasonably withheld):
9.1.1 enter into or vary (other than in the ordinary course of
business) any commitment, agreement or arrangement or put itself
in a position where it is obliged to announce that any commitment,
agreement or arrangement may be entered into or varied which, in
any case, is either material in the context of the Group or may
involve an increase in the issued capital of a Group Company
(other than an increase in the issued capital of a Group Company
where all the capital is to be issued to another Group Company);
or
9.1.2 take any steps (including without limitation making any public
statement or issuing or publishing any document) which, in the
opinion of Xxxxxxx Xxxxx, would be materially inconsistent with
any expression of policy or intention in the Offer Documents.
9.2 Between the date of this Agreement and the date which is 180 days from 26
July 2001 or the date of the Pricing Prospectus whichever is the later,
Xxxxx will not, without the prior written consent of Xxxxxxx Xxxxx (which
consent is not to be unreasonably withheld):
9.2.1 directly or indirectly, offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase
or otherwise transfer or dispose of any Ordinary Shares or any
securities convertible into or exercisable or exchangeable for
Ordinary Shares or file any registration statement under the
Securities Act with respect to any of the foregoing; or
9.2.2 enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the
beneficial interest in the Ordinary Shares,
whether any such swap or transaction described in clause 9.2.1 or 9.2.2
above is to be settled by delivery of Ordinary Shares or such other
securities, in cash or otherwise. This clause shall not apply to any
Ordinary Shares issued by Xxxxx pursuant to the Offers or issued upon the
exercise of an option or warrant or the conversion of a security
outstanding on the date hereof and referred to in the Offer Documents, or
any Ordinary Shares issued or options granted pursuant to existing
employee benefit plans of Xxxxx referred to in the Offer Documents or any
Ordinary Shares issued pursuant to any non-employee director stock plan
or dividend reinvestment plan.
9.3 Xxxxx undertakes not to take, directly or indirectly, any action which is
designed to stabilize or manipulate, or which constitutes or which might
reasonably be expected to cause or result in stabilization or
manipulation, of the price of any security of Xxxxx in connection with
the Offers.
-16-
19
10. ANNOUNCEMENTS AND INFORMATION
10.1 Until the date falling 30 days after the date on which Admission becomes
effective and without prejudice to clause 9.1, Xxxxx shall not (in
response to enquiries or otherwise) issue any public statement or publish
any document or information which relates to the Offers, Trading or
Admission or a Group Company (other than a normal trade announcement or
document) without:
10.1.1 where the statement, document or information is required by law,
the UK Listing Authority or the London Stock Exchange or by law or
a regulatory body or stock exchange in the United States or
Ireland, prior consultation with Xxxxxxx Xxxxx and having due
regard to all reasonable requests which Xxxxxxx Xxxxx may make; or
10.1.2 in any other case, the prior written consent of Xxxxxxx Xxxxx
(which is not to be unreasonably withheld) as to the content,
timing and manner of the making or publication of the statement,
document or information.
Xxxxx undertakes to use all reasonable endeavours to procure that each
Group Company complies with the restrictions contained in this clause
10.1 as if it were a party hereto. For the avoidance of any doubt, an
advertisement or publication issued in the ordinary course of business of
a Group Company which makes reference to the Offers, Trading or Admission
and otherwise makes no statement and contains no information materially
inconsistent with the Offer Documents shall not require consultation
with, or comment from, Xxxxxxx Xxxxx under this clause 10.1.
10.2 Xxxxx undertakes to Xxxxxxx Xxxxx that, until the date falling 30 days
after the date on which Admission becomes effective, it will use and will
procure that each Group Company uses, its reasonable endeavours to ensure
that as early as practicable there is:
10.2.1 discussed with Xxxxxxx Xxxxx in advance any public statement or
document which relates to the Group's results, dividends or
prospects, or to any acquisition, disposal, re-organisation,
takeover, management development or any other significant matter
(similar or not to the foregoing) and which it or any Group
Company proposes to make or publish before Admission;
10.2.2 discussed with Xxxxxxx Xxxxx in advance any other information
which may be required to be notified to the Company Announcements
Office of the UK Listing Authority and/or The Irish Stock Exchange
(or any replacement service thereof) in accordance with
paragraphs 9.1 or 9.2 of the Listing Rules; and
10.2.3 forwarded to Xxxxxxx Xxxxx for their comments (to which Xxxxx
shall have due regard) proofs in final form of any accounts or of
any public statement or document or information which it or a
Group Company proposes to make or publish on or before the date on
which Admission becomes effective and which relates to any matter
falling within clauses 10.2.1 or 10.2.2.
10.3 In clauses 10.1 and 10.2, a reference to the making of a public statement
or publication of a document or information includes authorising or
permitting another person to do so.
-17-
20
11. FURTHER ASSURANCE
Xxxxx undertakes to Xxxxxxx Xxxxx that it shall provide all information
and assistance Xxxxxxx Xxxxx may require for the purposes of this
Agreement and execute each document and do each, act and thing that
Xxxxxxx Xxxxx may require to give effect to this Agreement, and the
Offers and Admission and to satisfy its obligations (as sponsor) under
the Listing Rules to provide to the UK Listing Authority and/or The Irish
Stock Exchange any information or explanation as the UK Listing Authority
and/or The Irish Stock Exchange may require for the purpose of verifying
whether the Listing Rules are being and have been complied with by
Xxxxxxx Xxxxx or Xxxxx.
12. GENERAL
12.1 A variation of this Agreement is valid only if it is in writing and
signed by or on behalf of each party.
12.2 The failure to exercise or delay in exercising a right or remedy provided
by this Agreement or by law does not constitute a waiver of the right or
remedy or a waiver of other rights or remedies. No single or partial
exercise of a right or remedy provided by this Agreement or by law
prevents further exercise of the right or remedy or the exercise of
another right or remedy.
12.3 The rights and remedies contained in this Agreement are cumulative and
not exclusive of rights or remedies provided by law.
12.4 Each date, time or period referred to in this Agreement is of the
essence. If the parties agree in writing to vary a date, time or period,
the varied date, time or period is of the essence.
12.5 Nothing in this Agreement shall have the effect of limiting or
restricting any liability of any person arising as a result of any fraud.
13. CONTRACTS (RIGHTS OF THIRD PARTIES) XXX 0000
13.1 Each Indemnified Person shall have the right under the Contracts (Rights
of Third Parties) Act 1999 (which shall apply to this Agreement) to
enforce its rights against Xxxxx under clause 7 of this Agreement
(subject to clause 15 and to the other provisions of this paragraph 13),
as amended from time to time, provided that an Indemnified Person must
obtain the written consent of Xxxxxxx Xxxxx (which Xxxxxxx Xxxxx may give
or refuse in its absolute discretion) before it may bring proceedings to
enforce the terms of clause 7 and, save to the extent notified in writing
by Xxxxxxx Xxxxx to the relevant Indemnified Person, Xxxxxxx Xxxxx
(without obligation) shall have the sole conduct of any such action on
behalf of the relevant Indemnified Person.
13.2 Save as provided in clause 13.1, no-one other xxxx Xxxxxxx Xxxxx and
Xxxxx shall be entitled to directly enforce its rights under this
Agreement under the Contracts (Rights of Third Parties) Xxx 0000 or
otherwise. Xxxxxxx Xxxxx shall have no responsibility to any Indemnified
Person under or as a result of this clause 13. The parties to this
Agreement do not require the consent of any person other xxxx Xxxxxxx
Xxxxx and Xxxxx to rescind or vary this Agreement at any time.
-18-
21
14. NOTICES
14.1 A notice or other communication under or in connection with this
Agreement shall be in writing and shall be delivered personally or sent
by first class post pre-paid recorded delivery or by fax to the party due
to receive the notice or communication, at its address set out in this
Agreement or another address specified by that party by written notice to
the other.
14.2 In the absence of evidence of earlier receipt, a notice or other
communication is deemed given:
14.2.1 if delivered personally, when left at the address referred to in
clause 14.1;
14.2.2 if sent by mail, 48 hours after posting it; and
14.2.3 if sent by fax on completion of its transmission.
15. GOVERNING LAW AND JURISDICTION
15.1 This Agreement is governed by English law.
15.2 The courts of England have non-exclusive jurisdiction to hear and decide
any suit, action or proceedings, and to settle any disputes, which may
arise out of or in connection with this Agreement (respectively
"PROCEEDINGS" and "DISPUTES") and, for these purposes, each party
irrevocably submits to the jurisdiction of the courts of England.
15.3 Each party irrevocably waives any objection which it might at any time
have to the courts of England being nominated as the forum to hear and
decide any Proceedings and to settle any Disputes and agrees not to claim
that the courts of England are not a convenient or appropriate forum.
15.4 Process by which any Proceedings are begun in England may be served on a
party by being delivered in accordance with clause 14. Nothing contained
in clause 15.4 affects the right to serve process in another manner
permitted by law.
16. COUNTERPARTS
This Agreement may be executed in any number of counterparts each of
which when executed and delivered is an original, but all the
counterparts together constitute the same document.
-19-
22
SCHEDULE 1
DOCUMENTS DELIVERED AND TO BE DELIVERED
PART 1: DOCUMENTS ALREADY DELIVERED TO XXXXXXX XXXXX
DOCUMENT NO. OF COPIES EXECUTION
REQUIREMENTS
--------- -------------- ---------------
1. Verification Notes 1 Copy
2. Applications for Listing (Schedule 3A) 1 Certified Copy
3. Application for Admission to Trading (Form 1) 1 Certified Copy
4. UK Prospectus and Application Form 3 Copies
5. Letters to the UKLA and The Irish Stock Exchange in form 1 Certified copy as signed by each
required by para 5.5 of the Listing Rules Director (or his agent or
attorney duly authorised by deed)
6. Responsibility Letters and Powers of Attorney 1 of each Certified copies as signed by
each Director
7. Letter to Xxxxxxx Xxxxx from Xxxxx relating to paragraphs 1 Signed original
2.8 and 2.9 of the Listing Rules
8. Letter to Xxxxxxx Xxxxx from Xxxxx relating to para 2.15A of 1 Signed original
the Listing Rules
9. Letter to Xxxxxxx Xxxxx from Xxxxx relating to working capital 1 Signed original
10. Letter to Xxxxxxx Xxxxx from Xxxxx relating to no significant 1 Signed original
change in financial or trading position of Xxxxx
11. Letters to Xxxxxxx Xxxxx from Xxxxxxx Xxxxxx Xxxxx and Xxxxx 1 of each Signed originals
Xxxxx & Xxxxxx relating to para 2.8 of the Listing Rules
12. Letter to Xxxxxxx Xxxxx from PwC relating to para 2.8 of the 1 Signed original
Listing Rules
13. Resolutions passed by the board of directors of Xxxxx (or a 1 Certified copy
committee thereof) approving the UK Prospectus, authorising
their issue, authorising execution of this Agreement and
authorising the application for listing of the New Shares.
14. Working Capital Report 1 Copy
15. Letter prepared by PwC with regard to the Working Capital 1 Signed original
Report
16. Letter to Xxxxxxx Xxxxx and Xxxxx from PwC with regard to 1 Signed original
accuracy of financial information in the UK Prospectus
including in respect of para 2.15A of the Listing Rules and
relating to changes in financial or trading position of Xxxxx
17. Consent letter from PwC 1 Certified Copy
-20-
23
DOCUMENT NO. OF COPIES EXECUTION
REQUIREMENTS
--------- -------------- ---------------
18. Consent letter from KPMG 1 Certified Copy
19. Letter to Xxxxxxx Xxxxx and Xxxxx from PwC confirming, inter 1 Signed Original
alia, that the pro-forma information has been properly compiled by the
directors on the bases set out therein.
20. Accountants Report from PwC in relation to proforma 1 Certified Copy
information on Estrace tablets acquisition.
21. Consent letter from IMS 1 Certified Copy
22. Consent letter from NDC 1 Certified Copy
23. Consent letter from L'Estrange & Xxxxx 1 Certified Copy
24. Irrevocable Undertakings 1 of each Signed Original by each Selling
Shareholder (or his agent or
attorney duly authorised by deed)
-21-
24
PART 2: ADDITIONAL DOCUMENTS REQUIRED BY THE UK LISTING AUTHORITY AND THE IRISH
STOCK EXCHANGE IN CONNECTION WITH THE APPROVAL OF THE PROSPECTUS AND THE
APPLICATION FOR ADMISSION (48 HOUR DOCUMENTS)
DOCUMENT NO. OF COPIES EXECUTION
REQUIREMENTS
-------- ------------- -------------
1. Resolutions passed by the board of directors of Xxxxx (or a 2 Certified Copies
committee thereof) allotting the New Shares
-22-
25
PART 3: DOCUMENTS TO BE PREPARED BY XXXXXXX XXXXX DELIVERED TO THE UK LISTING
AUTHORITY AND THE IRISH STOCK EXCHANGE IN ORDER TO OBTAIN FORMAL APPROVAL OF THE
PROSPECTUS
DOCUMENT (1 copy of each)
1. Schedule 1A confirmation of independence
2. Schedule 4A declaration
3. Letter from Xxxxxxx Xxxxx to the UK Listing Authority and The Irish Stock
Exchange relating to para 2.14 of the Listing Rules
4. Letter from Xxxxxxx Xxxxx to the UK Listing Authority and The Irish Stock
Exchange in respect of non-applicable paragraphs of the Listing Rules
-23-
26
PART 4: DOCUMENTS TO BE DELIVERED TO XXXXXXX XXXXX IN CONNECTION WITH THE
PRICING PROSPECTUS
DOCUMENT NO. OF COPIES EXECUTION
REQUIREMENTS
-------- -------------- ------------
1. Letter to the UKLA and The Irish Stock Exchange in form 1 Certified Copy as signed by
required by para 5.5 of the Listing Rules. each Director (or his agent
or attorney duly authorised
by deed)
2. Pricing Prospectus. 3 Copies
3. Letter to Xxxxxxx Xxxxx from Xxxxx relating to paras 2.8 and 1 Signed original
2.9 of the Listing Rules.
4. Letter to Xxxxxxx Xxxxx from Xxxxx relating to para 2.15A of 1 Signed original
the Listing Rules.
5. "Bring down" letter to Xxxxxxx Xxxxx from Xxxxx relating to 1 Signed original
working capital.
6. Letter to Xxxxxxx Xxxxx from Xxxxxxx Xxxxxx Xxxxx relating to 1 Signed original
para 2.8 of the Listing Rules.
7. Letter to Xxxxxxx Xxxxx from PwC relating to para 2.8 of the 1 Signed original
Listing Rules.
8. "Bring down" letter to Xxxxxxx Xxxxx from PwC relating to 1 Signed original
working capital.
9. Letter to Xxxxxxx Xxxxx and Xxxxx from PwC with regard to the 1 Signed original
accuracy of financial information in the Pricing Prospectus
relating to para 2.15A of the Listing Rules, working capital,
and in respect of significant changes in financial or trading
position of Xxxxx since UK Prospectus.
10. Letter to Xxxxxxx Xxxxx from Xxxxx Xxxxx & Xxxxxx relating to Signed original
para 2.8 of the Listing Rules of the Irish Stock Exchange.
11. Certificate in form of Schedule 3 1 Signed original
-24-
27
PART 5: DOCUMENTS TO BE DELIVERED TO XXXXXXX XXXXX AND REQUIRED FOR CLOSING
DOCUMENT NO. OF COPIES EXECUTION
REQUIREMENTS
-------- -------------- ------------
1. "Bring down" letter to Xxxxxxx Xxxxx from Xxxxx regarding 1 Signed original
working capital.
2. "Bring down" letter to Xxxxxxx Xxxxx from PwC regarding 1 Signed original
working capital.
3. Letter to Xxxxxxx Xxxxx from PwC regarding no significant 1 Signed original
change.
4. Certificate in form of Schedule 3. 1 Signed original
-25-
28
SCHEDULE 2
WARRANTIES
1. AUTHORISATIONS AND CAPACITY
Xxxxx has the requisite power under its memorandum and articles of
association to authorise and issue the New Shares to be issued in
connection with the Offers and to effect the Offers.
2. UK PROSPECTUS
2.1 COMPLIANCE
The UK Prospectus complies in all respects with the Act, the FSA, the
Listing Rules, the relevant requirements of the UK Listing Authority and
The Irish Stock Exchange, Applicable Irish Securities Law and all other
relevant requirements of statute, statutory regulation or regulatory
bodies.
2.2 INFORMATION
2.2.1 The UK Prospectus is true and not misleading and contains all
information which is or may be material for disclosure to a
prospective investor and its professional advisers or which either
of them would reasonably require, and reasonably expect to find
there, for the purpose of making an informed assessment of the
assets and liabilities, financial position, profits and losses,
and prospects of the Group and of the rights attaching to the
New Shares.
2.2.2 Except as disclosed in the UK Prospectus, there are no rights
(conditional or otherwise) to require the issue of any shares or
other securities (including, without limitation, any loan capital)
of a Group Company (other than to another Group Company) which
are outstanding and in force.
2.2.3 There is no fact or circumstance which is not disclosed in the UK
Prospectus which ought to be taken into account by the UK Listing
Authority or The Irish Stock Exchange in considering the
application for Admission.
2.2.4 Except as disclosed in the UK Prospectus there has been no
significant change in the financial or trading position or
prospects of the Group since 31 March 2001.
2.2.5 In relation to the information contained in the UK Prospectus:
(a) the statement relating to working capital in paragraph 13
of Part V represents the Directors' true and honest opinion
made after due and careful consideration and enquiry;
(b) the statement relating to significant changes in the
financial or trading position of the Group at paragraph
14.3 of Part V represents the Directors' true and honest
opinions, expectations, beliefs and intentions made after
due and careful consideration and enquiry; and
-26-
29
(c) the interests (if any) of the Directors in Galen's share capital
and in transactions with any Group Company are accurately
described in the UK Prospectus.
2.3 DEROGATION
Each statement made by or on behalf of Xxxxx in connection with any
application to the UK Listing Authority and/or The Irish Stock Exchange
for information to be omitted from the UK Prospectus is in every material
respect true and accurate and not misleading. There is no information
which has not been disclosed in writing to the UK Listing Authority in
connection with such an application which by its omission makes such a
statement untrue, inaccurate or misleading in any material respect or is
material for disclosure to the UK Listing Authority and/or The Irish
Stock Exchange.
2.4 VERIFICATION
The answers to the Verification Notes have been prepared or approved by
persons having appropriate knowledge and responsibility to enable them
properly to provide those answers, which have been given in good faith
and with due care and attention.
3. WORKING CAPITAL REPORT
3.1 The Group will have sufficient working capital for its present
requirements, that is, for at least the next 12 months from the date of
publication of the UK Prospectus.
3.2 The Working Capital Report has been approved by the Directors and has
been prepared after due and careful enquiry and on the bases and
assumptions stated in the Working Capital Report, which the Directors
believe to be reasonable. There is no other fact known to any Director
and no other assumption which ought to have been reasonably taken into
account in preparing the Working Capital Report.
4. SHARE CAPITAL
4.1 Xxxxx and the directors of Xxxxx have the right, power and authority
under Galen's memorandum and articles of association or pursuant to
resolutions passed in general meeting to allot and issue the New Shares
in the manner proposed by this Agreement and the UK Prospectus, to pay
the fees, commissions and costs provided for in this Agreement and to
enter into, exercise its rights and perform its obligations under this
Agreement and to complete all the arrangements contemplated by this
Agreement in accordance with its terms without any further sanction or
consent.
4.2 No agreement, arrangement or obligation to which a Group Company is a
party or by which a Group Company or any of its assets is bound will be
terminated, adversely affected or breached by reason of the allotment,
offer and issue of the New Shares. Neither the allotment, offer nor issue
of the New Shares will infringe the laws or regulations of any
jurisdiction.
5. PRIOR DOCUMENTS AND ANNOUNCEMENTS
-27-
30
5.1 In paragraph 5.2, a "DOCUMENT" means a document issued, and
"ANNOUNCEMENT" means an announcement made, to the public, press, the UK
Listing Authority or the Irish Stock Exchange or the Company
Announcements Office of the London Stock Exchange by or on behalf of
Xxxxx since (and including) 1 May 2001.
5.2 In respect of each statement contained in a Document or in an
Announcement which is material in the context of Admission:
5.2.1 If it is a statement of fact, it is and was when made true and
accurate in all material respects;
5.2.2 If it is a statement of opinion, intention or expectation, it is
and was when made fairly and reasonably held; and
5.2.3 In any case, it is not, and was not when given, made materially
incorrect or misleading by the omission from the statement of any
fact or matter,
Except as disclosed in any document issued or announcement made to the
press, public, the UK Listing Authority or the Company Announcements
Office of the London Stock Exchange or the Irish Stock Exchange after the
issue of the relevant document or the making of the relevant
Announcement.
6. INSOLVENCY
No order has been made, petition presented or threatened or resolution
passed for the winding up of, or for the appointment of a provisional
liquidator to, or for an administration order in respect of, a Group
Company. No receiver or receiver and manager has been appointed of the
whole or part of a Group Company's assets or business. In respect of a
Group Company, no voluntary arrangement has been proposed under section 1
of the Insolvency Xxx 0000, and no compromise or arrangement has been
proposed, agreed to or sanctioned under section 425 of the Act. No action
is being taken to strike a Group Company off the register under section
652 of the Act.
7. INFORMATION TO SHAREHOLDERS
7.1 The Offer Documents do not include an untrue statement of a material fact
or omit or will omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
Each forecast, estimate and expression of opinion, intention or
expectation (if any) contained in the Offer Documents is made on
reasonable grounds, is honestly held, is fairly based and has been made
after due and careful consideration and no information has been omitted
which is likely to make any such forecast, estimate or expression of
opinion, intention or expectation untrue, inaccurate or misleading in any
material respect or which is material for disclosure in the Offer
Documents. The representations and warranties in this subsection shall
not apply to statements in or omissions from the Offer Documents made in
reliance upon and in conformity with information furnished to the Company
in writing by Xxxxxxx Xxxxx expressly for use in the Offer Documents.
8. INDEPENDENT ACCOUNTANTS
-28-
31
To the knowledge and belief of Xxxxx, the accountants who certified the
financial statements and supporting schedules included in the Offer
Documents are independent public accountants as required by the
Securities Act and the regulations made thereunder.
9. FINANCIAL STATEMENTS
The financial statements included in the Offer Documents, together with
the related schedules and notes, present fairly [(and in the case of
audited financial statements, show a true and fair view of)] the
financial position of Xxxxx and its consolidated subsidiaries, and of
Xxxxxx Xxxxxxxx PLC and its consolidated subsidiaries, at the dates
indicated and the statement of operations, stockholders' equity and cash
flows of Xxxxx and its consolidated subsidiaries, and of Xxxxxx Xxxxxxxx
PLC and its consolidated subsidiaries, for the periods specified; said
financial statements have been prepared in conformity with the applicable
generally accepted accounting principles ("GAAP") applied on a consistent
basis throughout the periods involved except as otherwise disclosed in
the Offer Documents. The supporting schedules, if any, included in the
Offer Documents present fairly in accordance with the applicable GAAP the
information required to be stated therein. The selected financial data
and the summary financial information included in the Offer Documents
present fairly the information shown therein and have been compiled on a
basis consistent with that of the audited financial statements included
in the Offer Documents. The pro forma financial statements and the
related notes thereto included in the Offer Documents present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and, with respect to the pro forma financial statements for
the period ended March 31, 2001, have been duly and carefully prepared on
the bases set out in Part IV of the UK Prospectus and in accordance with
the Listing Rules and have been properly compiled on the bases described
therein (which is consistent with the accounting principles, standards
and practices normally applied by Xxxxx).
10. NO MATERIAL ADVERSE CHANGE IN BUSINESS
Since the respective dates as of which information is given in the Offer
Documents except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of Xxxxx and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there have
been no transactions entered into by Xxxxx or any of its subsidiaries,
other than those in the ordinary course of business, which are material
with respect to Xxxxx and its subsidiaries considered as one enterprise,
and (C) except for regular dividends on the Ordinary Shares in amounts
per share that are consistent with past practice, there has been no
dividend or distribution of any kind declared, paid or made by Xxxxx on
any class of its capital stock.
11. GOOD STANDING OF THE COMPANY
Xxxxx has been duly organized and is validly existing as a public limited
company under the laws of Northern Ireland and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Offer Documents and to enter into and
perform its obligations under this Agreement; and Xxxxx is duly
-29-
32
qualified as a foreign corporation to transact business in each other
jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would
not result in a Material Adverse Effect.
12. GOOD STANDING OF SUBSIDIARIES
Each subsidiary of the Company (each a "Subsidiary" and, collectively,
the "Subsidiaries") has been duly organized and is validly existing as a
corporation or a company under the laws of the jurisdiction of its
incorporation or formation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as described
in the Offer Documents and is duly qualified as a foreign corporation to
transact business in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to qualify or to be
in good standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Offer Documents, all of the issued and
outstanding shares or capital stock of each such Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and is
owned by Xxxxx, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity;
none of the outstanding shares or capital stock of any Subsidiary was
issued in violation of the preemptive or similar rights of any
shareholder or holder of another security or right to acquire shares in
any Subsidiary. The only subsidiaries of the Company are the subsidiaries
listed in the Offer Documents.
13. CAPITALISATION
The authorized, issued and outstanding share capital of Xxxxx is as set
forth in the Offer Documents in the column entitled "Actual" under the
caption "Capitalization" (except for subsequent issuances, if any,
pursuant to agreements or employee benefit plans referred to in the Offer
Documents or pursuant to the exercise of convertible securities or
options referred to in the Offer Documents). The shares in the issued and
outstanding share capital of Xxxxx including the Sale Shares have been
duly authorized and validly issued and are fully paid and non-assessable;
none of the outstanding share in the capital of Xxxxx, including the Sale
Shares was issued in violation of the preemptive or other similar rights
of any shareholder of or holder of another security or right to acquire
shares of Xxxxx.
14. AUTHORISATION OF AGREEMENT
This Agreement has been duly authorised, executed and delivered by the
Company and constitutes a valid and legally binding agreement of Xxxxx
enforceable in accordance with its terms.
15. ABSENCE OF DEFAULTS AND CONFLICTS
Neither Xxxxx nor any of its subsidiaries is in violation of its
memorandum of association or articles of association or charter or
by-laws as the case may be or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
-30-
33
note, lease or other agreement or instrument to which Xxxxx or any of its
subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of Xxxxx or any subsidiary is subject
(collectively, "Agreements and Instruments") except for such defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated herein and in the Registration Statement and
the Offer Documents (including the issue of the New Shares and the sale
of the Sale Shares and the use of the proceeds from the issue of the New
Shares as described in the Offer Documents under the caption "Use of
Proceeds") and compliance by Xxxxx with its obligations hereunder have
been duly authorized by all necessary corporate action and do not and
will not, whether with or without the giving of notice or passage of time
or both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of Xxxxx
or any subsidiary pursuant to, the Agreements and Instruments (except for
such conflicts, breaches or defaults or liens, charges or encumbrances
that would not result in a Material Adverse Effect), nor will such action
result in any violation of the provisions of the charter or by-laws of
Xxxxx or any subsidiary or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, having jurisdiction over Xxxxx or any
subsidiary or any of their assets, properties or operations. As used
herein, a "Repayment Event" means any event or condition which gives the
holder of any material amount of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of
such indebtedness by Xxxxx or any subsidiary.
16. ABSENCE OF LABOR DISPUTE
No labor dispute with the employees of Xxxxx or any subsidiary exists or,
to the knowledge of Xxxxx, is imminent, which, may reasonably be expected
to result in a Material Adverse Effect.
17. ABSENCE OF PROCEEDINGS
Other than as set forth in the Offer Documents there is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of Xxxxx, threatened, against or affecting Xxxxx or any
subsidiary, which is required to be disclosed in the Offer Documents, or
which might reasonably be expected to result in a Material Adverse Effect
or which might reasonably be expected to materially and adversely affect
the consummation of the transactions contemplated in this Agreement or
the performance by Xxxxx of its obligations hereunder; the aggregate of
all pending legal or governmental proceedings to which Xxxxx or any
subsidiary is a party or of which any of their respective property or
assets is the subject which are not described in the Offer Documents,
including ordinary routine litigation incidental to the business, could
not reasonably be expected to result in a Material Adverse Effect.
18. POSSESSION OF INTELLECTUAL PROPERTY
-31-
34
Xxxxx and its subsidiaries own or possess, adequate patents, patent
rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service
marks, trade names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business now operated
by them, and neither Xxxxx nor any of its subsidiaries has received any
notice or is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Intellectual Property or of
any facts or circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of Xxxxx or any of its
subsidiaries therein, and which infringement or conflict (if the subject
of any unfavourable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
19. ABSENCE OF FURTHER REQUIREMENTS
No filing with, or authorisation, approval, consent, license, order,
registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by Xxxxx
of its obligations hereunder, in connection with the Offer, or the issue
or sale of any Ordinary Shares pursuant to the Offers or the consummation
of the transactions contemplated by this Agreement, except as may have
been made or obtained or required by the Securities Act, U.S. state
securities laws the U.K. Listing Authority or the Irish Stock Exchange.
20. POSSESSION OF LICENSES AND PERMITS
Xxxxx and its subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental Licenses")
issued by the appropriate regulatory agencies or bodies in the United
Kingdom, the Republic of Ireland, the United States and elsewhere as is
necessary to conduct the business now operated by them; Xxxxx and its
subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except
where the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither Xxxxx nor any of its subsidiaries
has received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavourable decision, ruling or finding,
would result in a Material Adverse Effect.
21. TITLE TO PROPERTY
Xxxxx and its subsidiaries have good and marketable title to all real
property owned by Xxxxx and its subsidiaries and good title to all other
properties owned by them, in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or encumbrances
of any kind except such as (a) are described in the Offer Documents or
(b) do not, singly or in the aggregate, materially affect the value of
such property and do not interfere with the use made and proposed to be
made of such property by Xxxxx or any of
-32-
35
its subsidiaries; and all of the leases and subleases material to the
business of Xxxxx and its subsidiaries, considered as one enterprise, and
under which Xxxxx or any of its subsidiaries holds properties described
in the Offer Documents, are in full force and effect, and neither Xxxxx
nor any subsidiary has any notice of any material claim of any sort that
has been asserted by anyone adverse to the rights of Xxxxx or any
subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of Xxxxx or such subsidiary to the
continued possession of the leased or subleased premises under any such
lease or sublease.
22. ENVIRONMENTAL LAWS
Except as described in the Offer Documents and except as would not,
singly or in the aggregate, result in a Material Adverse Effect, (a)
neither Xxxxx nor any of its subsidiaries is in violation of any United
Kingdom, Republic of Ireland or United States federal or state, or of any
other jurisdiction, statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating to
the release or threatened release of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous substances, petroleum or petroleum
products (collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials (collectively, "Environmental Laws"), (b)
Xxxxx and its subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in
compliance with their requirements, (c) there are no pending or
threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of non compliance or
violation, investigation or proceedings relating to any Environmental Law
against Xxxxx or any of its subsidiaries and (d) there are no events or
circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by
any private party or governmental body or agency, against or affecting
Xxxxx or any of its subsidiaries relating to Hazardous Materials or any
Environmental Laws.
23. NO REGISTRATION RIGHTS
Except as disclosed in the Offer Documents, there are no persons with
registration rights or other similar rights to have any securities
registered pursuant to the Registration Statement or any material amount
of securities otherwise registered by Xxxxx under the Securities Act.
24. TAXATION
No stamp duty, stamp duty reserve tax or other issue or transfer taxes or
duties and no capital gains, income, withholding or other taxes are
payable in the UK, Ireland, the United States or elsewhere by or on
behalf of Xxxxxxx Xxxxx in connection with the issue of the Open Offer
Shares.
25. DIVIDEND PAYMENTS
-33-
36
Except as set forth in the Offer Documents, no authorization, approval
or consent of any governmental authority or agency of Northern Ireland
is required to effect dividend payments on any Ordinary Shares,
including any Ordinary Shares held by the Depositary, or for the
Depositary to effect dividend payments in U.S. dollars on any ADSs.
26. COMPLIANCE WITH APPLICABLE XXXX
Xxxxx has complied, in all material respects, with all applicable laws in
connection with the performance of its obligations under this Agreement
and the consummation of the transactions herein contemplated.
27. INSURANCE
Other than as disclosed in the Offer Documents, Xxxxx and each of its
subsidiaries carry, or are covered by, insurance in such amounts and
covering such risks as is adequate for the conduct of their respective
businesses and the value of their respective properties and is customary
for companies engaged in similar businesses in similar industries.
28. NO STABILIZATION OR MANIPULATION
Neither Xxxxx nor any of its affiliates (as defined in Rule 501 under the
Securities Act) ("Affiliates") nor any person acting on its or their
behalf has taken, directly or indirectly, any action which was designed
to or which has constituted or which might reasonably be expected to
cause or result in stabilization or manipulation of the price of any
Ordinary Shares.
-34-
37
SCHEDULE 3
WARRANTIES CERTIFICATE
[LETTERHEAD OF XXXXX]
To: Xxxxxxx Xxxxx International
Ropemaker Place
00 Xxxxxxxxxx Xxxxxx
XXXXXX XX0X 0XX
[date]
Dear Sirs
There is no fact or circumstance which:
1. constituted a breach of clause 6.1 of the sponsor's and open offer
agreement between us dated 2 July 2001 (the "AGREEMENT"); or
2. has caused or would or might cause a Warranty in schedule 2 to the
Agreement to become untrue, inaccurate or misleading by reference to the
facts or circumstances existing at 4.00 p.m. today.
In this letter, the term "Warranty" has the meaning given in clause 1.1 of the
Agreement. For the purpose of paragraph 2 of this letter, where in a Warranty in
schedule 2 to the Agreement there is an express or implied reference to the
"date of this Agreement", that reference is to be construed as a reference to
"4.00 p.m. today".
Yours faithfully
[Director]
for and on behalf of
Xxxxx Holdings PLC
-35-
38
EXECUTED by the parties:
Signed by ) /s/ R. Xxxxxxxx Xxxxxxx
for )
and on behalf of )
XXXXX HOLDINGS PLC: )
Signed by ) /s/ Xxxx Xxxxxxx
For )
and on behalf of )
XXXXXXX XXXXX )
INTERNATIONAL: )
-36-
