DATED FEBRUARY 2002
(1) XXXXXXX XXXXX XXXXX AND OTHERS
(2) ARGONAUT TECHNOLOGIES, INC.
-------------------------------------
AGREEMENT
FOR THE SALE AND PURCHASE OF
THE ENTIRE ISSUED SHARE CAPITAL OF
XXXXX CHROMATOGRAPHY LIMITED
-------------------------------------
PAUL, HASTINGS, XXXXXXXX & XXXXXX LLP
TOWER 42
00 XXX XXXXX XXXXXX
XXXXXX XX0X 0XX
TEL: (00) 00 0000 0000
FAX: (00) 00 0000 0000
REF: LB2/31260
TABLE OF CONTENTS
Page
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1. DEFINITIONS AND INTERPRETATION...................................................1
2. SALE AND PURCHASE................................................................8
3. PURCHASE PRICE...................................................................9
4. CONDITIONS......................................................................10
5. COVENANTS.......................................................................12
6. COMPLETION......................................................................13
7. WARRANTIES......................................................................14
8. REMEDIES........................................................................15
9. LIMITATION OF LIABILITY.........................................................17
10. TAX COVENANT....................................................................17
11. PROTECTION OF GOODWILL AND TRADE SECRETS........................................17
12. THIRD PARTY RIGHTS..............................................................18
13. FURTHER ASSURANCE...............................................................18
14. CONFIDENTIALITY; ANNOUNCEMENTS..................................................19
15. ASSIGNMENT......................................................................19
16. WAIVER; VARIATION; INVALIDITY...................................................20
17. TERMINATION.....................................................................21
18. COSTS AND EXPENSES..............................................................21
19. PAYMENTS........................................................................23
20. ENTIRE AGREEMENT................................................................23
21. COUNTERPARTS....................................................................24
22. NOTICES.........................................................................24
23. GOVERNING LAW AND JURISDICTION..................................................26
SCHEDULE 1
PART 1 DETAILS OF THE SELLERS.................................................27
PART 2 STOCK OPTIONS..........................................................28
SCHEDULE 2
PART 1 DETAILS OF THE GROUP...................................................29
PART 2 SUBSIDIARIES...........................................................30
SCHEDULE 3 PROPERTIES.............................................................32
SCHEDULE 4 INTELLECTUAL PROPERTY..................................................33
SCHEDULE 5 COMPLETION OBLIGATIONS.................................................36
SCHEDULE 6 WARRANTIES.............................................................39
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TABLE OF CONTENTS
(continued)
Page
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SCHEDULE 7 LIMITATION OF LIABILITY................................................98
SCHEDULE 8 TAX COVENANT..........................................................101
SCHEDULE 9 LEGAL OPINION FROM SELLERS' LEGAL ADVISERS............................111
SCHEDULE 10 INDIVIDUAL PARTIES TO OFFERS OF EMPLOYMENT............................114
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THIS AGREEMENT is made the day of February 2002
BETWEEN
(1) THE SEVERAL PERSONS whose respective names are set out in column 1 of
Part 1 of Schedule 1 (each a "Seller" and, collectively, the "Sellers");
and
(2) ARGONAUT TECHNOLOGIES, INC. a Delaware Corporation whose registered
office is at 0000 Xxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxxxxxx 00000, XXX (the
"BUYER").
RECITALS
(A) Details of Xxxxx Chromatography Limited (the "Company") are set out in
Part 1 of Schedule 2.
(B) The Sellers have agreed to sell, and the Buyer has agreed to purchase
the entire issued share capital of the Company on and subject to the
terms and conditions of this Agreement.
NOW IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
In this Agreement:
1.1 Defined terms:
"ACCOUNTS DATE" means 31 December 2001;
"AFFILIATE" means in relation to any body corporate (i) its parent
undertaking (within the meaning of section 258 CA 85); or (ii) any
subsidiary undertaking (within the meaning of that section) of such body
corporate or of its parent undertaking;
"AGREEMENT" means this Agreement including the Recitals and Schedules;
"AMENDED INVESTORS' RIGHTS AGREEMENT" means the amended investors'
rights agreement in the agreed form to be entered into between the
Sellers and the Buyer at Completion;
"AUDITED FINANCIAL STATEMENTS" means the audited financial statements
for each of the Company and the UK Subsidiary as of and for the year
ended 31 December 2000;
"BUSINESS" means collectively the businesses of the Company and each of
the Subsidiaries as carried out as at the Completion Date;
"BUSINESS DAY" means a day (other than a Saturday or Sunday) when banks
are open for business in the City of London;
"BUYER COMMON STOCK" means shares of the Buyer's common stock;
"CAA" means the Capital Xxxxxxxxxx Xxx 0000;
"CA 85" means the Companies Xxx 0000;
"CASH AMOUNT" means (Pound Sterling) 3,505,000;
"COMMERCIAL INFORMATION" means all information (including Know How but
not limited to matters which are confidential) at any time belonging to,
or under the control of, any Group Company which has at any time been
used or intended to be used for the purpose of the Business (or any
aspect of it);
"COMPETENT AUTHORITY" means (i) any person (whether autonomous or not)
having legal and/or regulatory authority; (ii) any court of law or
tribunal in any jurisdiction; and/or (iii) any Taxation Authority;
"COMPLETION" means completion of the sale and purchase of the Shares
pursuant to this Agreement;
"COMPLETION DATE" means the date on which Completion takes place;
"CONDITIONS" means collectively the conditions to Completion set out in
clause 4.1;
"CONFIDENTIAL INFORMATION" means any information concerning the Business
that is not already generally available to the public;
"CONNECTED PERSON" means a person connected (within the meaning of
section 839 Taxes Act 88) with a specified Party;
"CONSIDERATION STOCK" means that number of shares of Buyer Common Stock
equal to (Pound Sterling) 1,275,000 divided by the sterling equivalent
of the Market Price (as determined by reference to the spot rate of
exchange of Barclays Bank PLC on the date immediately prior to
Completion);
"COPYRIGHT" is as defined in paragraph 22 of Schedule 6;
"DEPOSIT AGENT" means Xxxxx Xxxxxx Xxxxxxxxxxx Xxxxx, Xxx Xxxxxx Square,
London E14 5AF or such other organisation as the Parties shall agree;
"DEPOSIT AGREEMENT" means an agreement to be made at Completion between
the Principal Sellers, the Buyer and the Deposit Agent the operative
provisions of which shall substantially reflect clauses 8.3, 8.4 and 8.5
of this Agreement;
"DEPOSIT NOTES" means Loan Notes having principal value (Pound
Sterling) 2,550,000 to be deposited with the Deposit Agent at Completion
in accordance with clause 8.3 and shall include any cash deposited with
the Deposit Agent as substitution for such Loan Notes in accordance with
clause 8.5;
"DISCLOSED" means fully and fairly disclosed by the Disclosure Documents
(and "Disclosure" shall be construed accordingly);
"DISCLOSURE DOCUMENTS" means the Disclosure Letter and the two identical
bundles of documents collated by or on behalf of the Principal Sellers,
the outside covers of each of which have been signed for identification
by or on behalf of the Principal Sellers and the Buyer;
"DISCLOSURE LETTER" means the letter described as such, dated as of the
date of this Agreement and addressed by the Principal Sellers to the
Buyer;
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"ENCUMBRANCE" means any interest or equity of any person (including any
right to acquire, option or right of pre-emption or conversion) or any
mortgage, charge, pledge, lien, assignment, hypothecation, security
interest, title retention or any other security agreement or
arrangement, or any agreement to create any of the above;
"ENVIRONMENT", "ENVIRONMENT AGREEMENTS", "ENVIRONMENT LAWS" and
"ENVIRONMENT LIABILITY" are as defined in paragraph 12 of Schedule 6;
"ERA" means the Employment Rights Xxx 0000;
"EXISTING USE" is as defined in paragraph 33 of Schedule 6;
"FINANCIAL YEAR" means a financial year of the Company, commencing on 1
January and ending on 31 December in each year;
"FRS" means a financial reporting standard in force at the date of this
Agreement as issued by the Accounting Standards Board Limited;
"GROUP" means collectively the Company and the Subsidiaries (and "Group
Company" means any one of them);
"GUARANTEE" means the guarantee of the Loan Notes set out in the Loan
Note Instrument;
"HARDWARE" is as defined in paragraph 23 of Schedule 6;
"HARM" and "HAZARDOUS MATTER" are as defined in paragraph 12 of Schedule
6;
"HOLDING COMPANY" means a holding company within the meaning of sections
736 and 736A CA 85;
"INTELLECTUAL PROPERTY", "IP AGREEMENTS" and "IP MATERIALS" are as
defined in paragraph 23 of Schedule 6;
"IT CONTRACTS", "IT SERVICES" and "IT SYSTEMS" are as defined in
paragraph 24 of Schedule 6;
"IHTA" means the Inheritance Tax Xxx 0000;
"JCI ACCOUNTS" means the unaudited financial statements for the US
Subsidiary for the financial year ended 31 October 2000;
"JCI ACCOUNTS DATE" means 31 October 2000;
"KNOW HOW" is as defined in paragraph 23 of Schedule 6;
"LEASE" and "LETTING DOCUMENTS" are as defined in paragraph 33 of
Schedule 6;
"LIABILITY" means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued
or unaccrued, whether liquidated or unliquidated and whether due or to
be come due) including any liability for Taxation;
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"LICENCES-IN" and "LICENCES-OUT" are as defined in paragraph 23 of
Schedule 6;
"LITIGATION" means any proceedings, whether judicial, administrative,
tribunal, arbitral, criminal or similar, in the United Kingdom or
elsewhere, and whether or not subject or intended to be subject to
alternative dispute resolution techniques;
"LOAN NOTE INSTRUMENT" means the loan note instrument to be executed by
the Buyer on the Completion Date substantially in the form set out in
Schedule 8;
"LOAN NOTES" means the principal amount of loan notes of the Buyer
constituted by the Loan Note Instrument amounting to (Pound
Sterling) 7,650,000 which are to be guaranteed by Barclays Bank PLC (or
such other bank as the Principal Sellers and the Buyer may agree);
"LOSSES AND EXPENSES" means actions, proceedings, losses, damages,
liabilities, claims, demands, costs and expenses including fines,
penalties, clean-up costs, legal and other professional fees and any VAT
payable in relation to any such matter, circumstance or item except to
the extent that the Buyer obtains credit for such VAT as input tax;
"LTCA" means the Landlord and Tenant (Covenants) Xxx 0000;
"MANAGEMENT ACCOUNTS" means the management accounts for the Company, the
UK Subsidiary and the US Subsidiary for the period from 1 January 2002
to 31 January 2002;
"MARKET PRICE" means the price per share of Buyer Common Stock that is
equal to the average of the closing prices of a share of Buyer Common
Stock, as reported on the Nasdaq National Market, during the ten
consecutive trading days ending on the date two days preceding the date
of this Agreement;
"OTHER PROPERTY" is as defined in paragraph 12 of Schedule 6;
"PARTIES" means the Buyer and the Sellers (and "Party" shall be
construed accordingly);
"PATENT RIGHTS" is as defined in paragraph 23 of Schedule 6;
"PENSION SCHEMES" means agreements or arrangements (whether legally
enforceable or not) for the payment of any pensions, allowances, lump
sums or other like benefits on retirement for the benefit of any present
or former director, officer or employee of the Company or of any of the
Subsidiaries or for the benefit of the dependants of any such persons;
"PERMITS" is as defined in paragraph 12 of Schedule 6;
"PRINCIPAL SELLERS" means Xxxxx Xxxxx, Xxxx Xxxxxx, Xxxxxx Xxxxxx,
Xxxxxxx Xxxxx, Xxxxxxx Xxxxxxxxx and Xxxxxx X. Xxxxxx;
"PROCEEDINGS" means any proceeding, suit or action (including
arbitration) arising out of or in connection with this Agreement;
"PROPERTIES" means the properties of which details are set out in
Schedule 3 and the expression "Property" shall mean, where the context
so admits, any one or more or any part of such properties;
"PURCHASE PRICE" is defined in clause 3.1;
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"REGISTERED IP" and "RELEVANT IP" are as defined in paragraph 23 of
Schedule 6;
"REGULATORY REQUIREMENTS" means any applicable requirement of law, the
UK Listing Authority, the London Stock Exchange Limited, the Panel on
Takeovers and Mergers or of any person who has regulatory authority
which has the force of law in any jurisdiction;
"REORGANISATION" means the acquisition by the Company immediately prior
to the signing of this Agreement of such shares in the capital of the
Subsidiaries as were not at that time held by the Company;
"SSAP" means a statement of standard accounting practice in force at the
date of this Agreement as adopted by the Accounting Standards Board
Limited;
"SHARES" means the 179,018 fully-paid issued ordinary shares of (Pound
Sterling) 1.00 each in the capital of the Company, being the entire
issued share capital of the Company at Completion following the
Reorganisation;
"SOFTWARE" is as defined in paragraph 23 of Schedule 6;
"STOCK OPTIONS" means the options in respect of Buyer Common Stock to be
granted to the employees of the Company and/or the Subsidiaries as
listed in Part 2 of Schedule 1 at the next meeting of the board of
directors of the Company (or the Compensation committee thereof)
following Completion;
"SUBSIDIARIES" means the UK Subsidiary and the US Subsidiary;
"SUBSIDIARY" means a subsidiary within the meaning of sections 736 and
736A CA 85;
"TAXATION" or "TAX" means all taxes, duties, levies, imposts, charges
and withholdings of any nature whatsoever, whether created or imposed in
the United Kingdom or elsewhere and at whatever time created or imposed
which are collected and administered by any Tax Authority whether the
same is primarily payable by the Company and whether or not the Company
shall or may have any right of reimbursement against any other person
including any payment which the Company may be or become bound to make
or to account for in respect of Tax, and includes:-
(a) within the United Kingdom, income tax, corporation tax, advance
corporation tax, capital gains tax, value added tax, customs'
duties (including import duties, excise duties), stamp duty
reserve tax, inheritance tax, national insurance contributions,
landfill tax, aggregates levy, income related benefits and any
other forms of taxes, duties, levies, imposts, charges or
withholdings similar to or supplementing or replaced by or
replacing the foregoing or any of them, in all cases together
with all incidental and supplemental penalties, charges,
interest, fines and default surcharges other than stamp duty; and
(b) outside the United Kingdom, any liability to any taxes, levies,
duties, imposts, charges and withholdings of any nature
whatsoever, including (without limitation) taxes on gross or net
income, taxes on profits or gains and taxes on receipts, sales,
use, occupation, franchise, value added, and personal property,
in all cases together with all incidental or supplemental
penalties, charges, interest, fines and default surcharges and
costs;
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"TAXATION AUTHORITY" means the Inland Revenue, Customs & Excise, the
Department of Social Security and any other governmental or other
authority whatsoever competent to impose any Taxation, whether in the
United Kingdom or elsewhere;
"TAX COVENANT" means the taxation covenants and indemnities between the
Principal Sellers and the Buyer set out in Schedule 10;
"TAXATION STATUTE" means any directive, statute, enactment, law, or
regulation or similar measure, wheresoever enacted or issued, coming
into force or entered into providing for or imposing any Taxation and
shall include orders, regulations, instruments, bye-laws or other
subordinate legislation made under the relevant statute or statutory
provision and any such measure which amends, extends, consolidates or
replaces, or which has been amended, extended, consolidated or replaced
by, any such measure but not to the extent that such re-enactment,
modification or replacement increases with retrospective effect any
liability of any party to this Agreement;
"TAXES ACT" means the Income and Corporation Taxes Xxx 0000;
"TAX WARRANTIES" means the warranties set out in Part 2 of Schedule 6;
"TCGA" means the Taxation of Chargeable Gains Xxx 0000;
"TMA" means the Taxes Management Xxx 0000;
"TRADE MARKS" is as defined in paragraph 23 of Schedule 6;
"TRADE UNION" is as defined in section 1 TULRCA;
"TULRCA" means the Trade Union and Labour Relations (Consolidation) Xxx
0000;
"TUPE" means the Transfer of Undertakings (Protection of Employment)
Regulations 1981;
"UK SUBSIDIARY" means International Sorbent Technology Limited, details
of which are set out in Part 2 of Schedule 2;
"US SUBSIDIARY" means Xxxxx Chromatography, Inc., details of which are
set out in Part 3 of Schedule 2;
"UNAUDITED COMBINED RESULTS" means the combined and consolidating
balance sheet and profit and loss account in respect of the Company, the
UK Subsidiary and the US Subsidiary for the year ended 31 December 2001;
"UNREGISTERED IP" is as defined in paragraph 23 of Schedule 6;
"UK GAAP" means the generally accepted guidelines, conventions, rules
and procedures of accounting practice in the United Kingdom which are
regarded as permissible by the Account Standards Board Limited;
"VAT" means value added tax;
"VATA" means the Value Added Tax Xxx 0000; and
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"WARRANTIES" means the warranties set out in clause 7 and Schedule 6.
1.2 Where any statement is qualified as being limited to the Principal
Sellers' knowledge (for example, by using expressions such as "so far as
the Principal Sellers are aware" or "to the best of the Principal
Sellers' knowledge"), the statement shall be deemed to be given to the
best of the knowledge, information and belief of the Principal Sellers
after making all reasonable enquiries of the directors and managers of
the Company and the Subsidiaries, the Company's tax advisers and, where
those enquiries would have prompted a reasonable person to make further
enquiries, making those further enquiries.
1.3 The table of contents and headings and sub-headings are for convenience
only and shall not affect the construction of this Agreement.
1.4 Unless the context otherwise requires, words denoting the singular shall
include the plural and vice versa and references to any gender shall
include all other genders. References to any person (which for the
purposes of this Agreement shall include bodies corporate,
unincorporated associations, partnerships, governments, governmental
agencies and departments, statutory bodies or other entities, in each
case whether or not having a separate legal personality) shall include
the person's successors.
1.5 References to Recitals, Schedules and clauses are to (respectively)
recitals to, schedules to and clauses of, this Agreement (unless
otherwise specified) and references within a Schedule to paragraphs are
to paragraphs of that Schedule (unless otherwise specified).
1.6 References in this Agreement to any statute, statutory provision,
directive of the Council of the European Union (whether issued jointly
with any other person or under any other name) or other legislation
include a reference to that statute, statutory provision, directive or
legislation as amended, extended, re-enacted, consolidated or replaced
from time to time (whether before or after the date of this Agreement)
and include any order, regulation, instrument or other subordinate
legislation made under the relevant statute, statutory provision,
directive or legislation but not to the extent that such re-enactment,
modification or replacement imposes or increases liability upon any
party to this Agreement.
1.7 Any reference to "WRITING" or "WRITTEN" includes faxes and any legible
reproduction of words delivered in permanent and tangible form (but does
not include e-mail).
1.8 Any reference to a document "in the agreed form" means a document
substantially in the form agreed at the date of this Agreement by the
Parties and initialled by or on behalf of all of them.
1.9 Any amount expressed in pounds sterling shall, to the extent that it
requires in whole or in part to be expressed in any other currency in
order to give due effect to this Agreement, be deemed for that purpose
to have been converted into the relevant currency immediately before the
close of business on the date of this Agreement (or, if that is not a
Business Day, the Business Day immediately before it). Subject to any
applicable legal requirements governing conversions into that currency,
the rate of exchange shall be the spot rate of Bank of Scotland for the
purchase of that currency with sterling at the time of the deemed
conversion.
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1.10 References to times of the day are (unless otherwise expressly provided)
to London time and references to a day are to a period of 24 hours
running from midnight on the previous day.
2. SALE AND PURCHASE
2.1 OBLIGATION TO SELL AND PURCHASE
Subject to the terms of this Agreement, each Seller shall sell to the
Buyer that number of the Shares as is set opposite that Seller's name in
column 2 of Schedule 1 (together with all rights attaching to them at
the date of this Agreement and all additional rights, if any, attaching
to them at Completion) and the Buyer shall purchase the Shares
accordingly.
2.2 SALE OF ALL SHARES
The Buyer shall not be obliged to complete the purchase of any of the
Shares unless the purchase of all the Shares is completed
simultaneously.
2.3 IMPLIED COVENANTS FOR TITLE
Each Seller, including, without limitation, each Principal Seller,
covenants, in relation to the Shares to be sold by him or it pursuant to
this Agreement, that:
2.3.1 he or it has (and will at Completion have) the right to transfer
the legal and beneficial title to them;
2.3.2 they are (and will at Completion be) free from all Encumbrances;
2.3.3 he or it has taken all necessary action to authorise the
execution and delivery of this Agreement and he has full power to
enter into and perform this Agreement which constitutes binding
obligations on him or it in accordance with its terms;
2.3.4 his or it obligations under this Agreement and each document to
be executed at or prior to Completion in connection with this
Agreement are, or when executed will be, enforceable against him
or it in accordance with its terms;
2.3.5 the execution and delivery of this Agreement by him or it does
not and the performance of the terms of this Agreement will not
contravene any provision of existing law or regulation applicable
to him or it, or, in the case of a Seller which is not an
individual, its organisational documents and will not conflict
with or result in any breach of or constitute a default under any
agreement or instrument or any judgment, decree or decision to
which he or it is party or by which he or it is bound; and
2.3.6 he or it is the sole beneficial owner of that number of ordinary
shares as are shown against his or its name in Schedule 1 and
there is no Encumbrance on, over or affecting any of the Shares
registered in his or its name.
Part 1 of the Law of Property (Miscellaneous Provisions) Xxx 0000 shall
not apply to any disposition made under or pursuant to this Agreement.
2.4 WAIVERS OF PRE-EMPTION
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Each of the Sellers hereby waives (and undertakes to procure that his
nominee(s) (if any) shall waive) all rights of pre-emption or similar
rights over any of the Shares conferred on him or it either by the
articles of association of the Company or in any other way.
3. PURCHASE PRICE
3.1 CALCULATION OF PURCHASE PRICE
The purchase price for the Shares (the "PURCHASE PRICE") shall be the
aggregate of:
3.1.1 the Cash Amount;
3.1.2 the Loan Notes; and
3.1.3 the Consideration Stock
and shall be paid or, in the case of the Loan Notes and the
Consideration Stock, issued to the Sellers in the amounts set out
against their names in columns 3, 4 and 5 of Schedule 1.
3.2 TIMING OF PAYMENTS
The Purchase Price payable at Completion will comprise:
3.2.1 the Cash Payment;
3.2.2 subject to clause 3.3, the issue of the Consideration Stock; and
3.2.3 the issue of the Loan Notes.
3.3 ADJUSTMENT OF CONSIDERATION STOCK
If the Market Price is less than the sterling equivalent (as determined
by reference to the spot rate of exchange of Barclays Bank PLC on the
date immediately prior to the Completion Date) of US$3.00, the Buyer
shall have the option to pay all or any portion of the Purchase Price
that would otherwise be paid by the issuance of the Consideration Stock
in cash to each of the Sellers at Completion.
3.4 INVESTMENT.
Each of the Sellers represents and warrants that he or it:
3.4.1 understands that the Consideration Stock and the Loan Notes have
not been, and will not be, registered under the US Securities Act
of 1933, as amended, or under any US state securities laws, and
are being offered and sold in reliance upon US federal and state
exemptions for transactions not involving any public offering;
3.4.2 is acquiring the Consideration Stock and the Loan Notes solely
for his or its own account for investment purposes, and not with
a view to the distribution thereof;
3.4.3 is a sophisticated investor with knowledge and experience in
business and financial matters;
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3.4.4 has received certain information concerning the Buyer and has had
the opportunity to obtain additional information as desired in
order to evaluate the merits and the risks inherent in holding
the Consideration Stock Loan Notes; and
3.4.5 is able to bear the economic risk and lack of liquidity inherent
in holding the Consideration Stock and the Loan Notes.
4. CONDITIONS
4.1 CONDITIONS TO COMPLETION
Completion is subject to and conditional on fulfilment of the following
conditions, subject in each case to waiver in accordance with clause
4.2:
4.1.1 the passing by the Buyer of such directors' resolutions as are
necessary to approve the transactions contemplated by this
Agreement;
4.1.2 the Reorganisation having been completed so that all shares in
the Subsidiaries not held by the Company on the date of this
Agreement have been transferred to the Company in consideration
for shares in the capital of the Company;
4.1.3 the Guarantee being in place;
4.1.4 all outstanding loans or other similar obligations made between
the Company or any Subsidiary and the Sellers (or any Connected
Person of any of the Sellers) having been repaid or satisfied in
full;
4.1.5 the representations and warranties set forth in clauses 2.3 and
3.4 and Schedule 6 being true and correct in all material
respects at and as of the Completion Date as if repeated by the
Principal Sellers as at the Completion Date;
4.1.6 each Seller having performed and complied with all of the
covenants hereunder in all material respects until the Completion
Date;
4.1.7 no action, suit, or proceeding being pending or threatened before
any court or quasi-judicial or administrative authority or before
any arbitrator, in any case whether in the United Kingdom or
elsewhere, in respect of which any injunction, judgment, order,
decree, ruling, or charge would (i) prevent consummation of any
of the transactions contemplated by this Agreement, (ii) cause
any of the transactions contemplated by this Agreement to be
rescinded following consummation, (iii) affect adversely the
right of the Buyer to own the Shares and to control the Company
and the Subsidiaries, or (iv) materially and adversely affect the
right of any of the Company and the Subsidiaries to own its
assets and to operate its businesses (and no such injunction,
judgment, order, decree, ruling, or charge being in effect);
4.1.8 each of the persons listed in Schedule 10 having signed and
delivered to the Buyer an employment offer letter in the agreed
form, effective as of the Completion Date;
4.1.9 the Buyer having received the resignations, effective as of the
Completion Date, of each director and officer of the Company and
the Subsidiaries who is required by the Buyer to resign at
Completion;
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4.1.10 the Buyer having received from counsel to the Sellers an opinion
in form and substance as set forth in Schedule 9, addressed to
the Buyer, and dated as of the Completion Date;
4.1.11 the Sellers or their representatives having delivered to the
Buyer the Unaudited Combined Results;
4.1.12 there shall have been completed the transfers by the Company of
its entire shareholding in Kinesis Limited, Michrom Bioresources
and Innovatech respectively;
4.1.13 the Sellers, having procured that the Company, at its own
expense, has used all commercially reasonable endeavours to make
an application for the necessary fire certificate in relation to
the Property, situated at Duffryn Industrial Estate (being the
land registered under title number WA746101);
4.1.14 the Sellers, having procured that the Company, at its own
expense, has made an application to HM Land Registry to register
properly the deed of rectification in relation to the land on the
east side of New Road, Tir-Y-Berth;
4.1.15 the Sellers, having procured that the Company, at its own
expense, has ceased, and not recommenced, the transportation
and/or storage of waste in relation to the Properties where
permits are legally required under environmental or other
legislation for such transportation and storage of waste but not
currently held;
4.1.16 all actions to be taken by the Sellers in connection with
consummation of the transactions contemplated hereby as set out
in this clause 4 and Schedule 5, including, without limitation,
the Reorganisation, and all certificates, opinions, instruments,
and other documents required to effect those transactions being
satisfactory in form and substance to the Buyer;
4.1.17 there not having occurred any material adverse change in the
financial condition, properties, assets (including intangible
assets), liabilities, business, operations or prospects of the
Company and the Subsidiaries, taken as a whole, following the
date of this Agreement;
4.1.18 the shareholder consents required for the Buyer to enter into the
Amended Investors' Rights Agreement having been obtained;
4.1.19 the Buyer having performed and complied with all of its covenants
hereunder in all material respects until the Completion Date; and
4.1.20 each of the Sellers to whom Consideration Stock is to be issued
at Completion having delivered to the Buyer a signed letter of
representation relating to the issue and holding of Consideration
Stock in the agreed form.
4.2 WAIVER OF CONDITIONS
4.2.1 The Buyer shall be entitled by notice in writing given to the
Sellers to waive (to such extent as it may think fit) compliance
with any of the Conditions other than Conditions 4.1.1, 4.1.3,
4.1.18 and 4.1.19.
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4.2.2 The Sellers shall be entitled by notice in writing to the Buyer
to waive (to such extent as they may think fit) compliance with
Conditions 4.1.1, 4.1.3, 4.1.18 and 4.1.19.
4.2.3 In the event of any waiver of a Condition or Conditions granted
under clause 4.2.1 or 4.2.2, such Condition or Conditions shall
be deemed fulfilled for the purpose of clause 4.1.
4.3 TIME LIMIT FOR SATISFACTION OF CONDITIONS
Where fulfilment of any Condition requires a Party's active involvement
or assistance or where a Party is capable of preventing its fulfilment,
that Party shall use all reasonable endeavours to procure that the
Condition is fulfilled as soon as practicable and in any event on or
before 1 March 2002. The Sellers shall, as soon as it comes to the
attention of any of them, disclose to the Buyer in writing any matter
which will or may prevent any of the Conditions being fulfilled in that
time. The Buyer shall, as soon as it comes to its attention, disclose to
the Principal Sellers in writing any matter which will or may prevent
any of the Conditions being fulfilled in that time.
5. COVENANTS
5.1 The Parties agree as follows with respect to the period between the
execution of this Agreement and the Completion Date:
5.1.1 Each of the Parties will use all reasonable efforts to take all
action and to do all things necessary in order to consummate and
make effective the transactions contemplated by this Agreement
(including the satisfaction of the Conditions).
5.1.2 The Sellers will cause each of the Company and the Subsidiaries
to give any notices to third parties, and will cause each of the
Company and the Subsidiaries to use all commercially reasonable
efforts to obtain any third party consents, that the Buyer may
reasonably request.
5.1.3 The Principal Sellers will use all reasonable endeavours to
collect from each of the Sellers to whom Consideration Stock is
to be issued at Completion the signed letter of representation
referred to in clause 4.1.20 and to deliver the same to the
Buyer.
5.1.4 The Sellers will not cause or permit any of the Company and the
Subsidiaries to engage in any practice, take any action, or enter
into any transaction outside the ordinary course of business.
Without limiting the generality of the foregoing, the Sellers
will not cause or permit any of the Company and the Subsidiaries
to (i) declare, set aside, or pay any dividend or make any
distribution with respect to its share capital or redeem,
purchase, or otherwise acquire any of its share capital or (ii)
otherwise engage in any practice, take any action, or enter into
any transaction of the sort described in paragraph 9.1 of
Schedule 6.
5.1.5 The Sellers will cause each of the Company and the Subsidiaries
to keep its business and properties substantially intact,
including its present operations, physical facilities, working
conditions, and relationships with lessors, licensors, suppliers,
customers, and employees.
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5.1.6 The Sellers will permit, and the Sellers will cause each of the
Company and the Subsidiaries to permit, representatives of the
Buyer to have reasonable access to all premises, properties,
personnel, books, records (including Tax records), contracts, and
documents of or pertaining to each of the Company and the
Subsidiaries.
5.1.7 The Sellers will give prompt written notice to the Buyer of any
material adverse development which is likely to cause a breach of
any of the Warranties when repeated as at Completion.
5.1.8 The Sellers will not (and the Sellers will not cause or permit
any of the Company and the Subsidiaries to) (i) solicit,
initiate, or encourage the submission of any proposal or offer
from any person relating to the acquisition of any shares or
other voting securities, or any substantial portion of the
assets, of any of the Company and the Subsidiaries or (ii)
participate in any discussions or negotiations regarding, furnish
any information with respect to, assist or participate in, or
facilitate in any other manner any effort or attempt by any
person to do or seek any of the foregoing or (iii) vote any
Shares in favour of such transaction. The Sellers will notify the
Buyer immediately if any person makes any proposal, offer,
inquiry, or contact with respect to any of the foregoing.
5.2 The Principal Sellers undertake to use their best efforts prior to and
following Completion to obtain the confirmation of the Welsh Office that
the acquisition of the Company by the Buyer will not result in the Welsh
Office requiring repayment of the development grant of Pound
Sterling68,000 made to the Company.
6. COMPLETION
6.1 COMPLETION MEETING
6.1.1 Completion shall take place at the offices of
PricewaterhouseCoopers at One Kingsway, Cardiff as soon as
practicable following fulfilment (or waiver) of all the
Conditions but no later than 1 March 2002.
6.1.2 At Completion, the Parties shall perform in full their respective
obligations as set out in Schedule 5.
6.2 EFFECT OF COMPLETION
Notwithstanding Completion:
6.2.1 each provision of this Agreement (and any other document referred
to in it) not performed at or before Completion but which remains
capable of performance;
6.2.2 the Warranties; and
6.2.3 all covenants and other undertakings contained in or entered into
pursuant to this Agreement
will remain in full force and effect and (except as otherwise expressly
provided) without limit in time.
6.3 PENDING REGISTRATION
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Each of the Sellers declares that so long as he (or any nominee of his)
remains the registered holder of any of the Shares after Completion, he
will:-
6.3.1 hold those Shares and all dividends and other distributions in
respect of them, and all other rights arising out of or in
connection with them, in trust for the Buyer and its successors
in title; and
6.3.2 at all times deal with and dispose of those Shares, and all such
dividends, distributions and rights attaching to them, only as
the Buyer or any such successor may direct.
6.4 COMPANY RECORDS ETC.
6.4.1 During the six years following Completion, each of the Sellers
will maintain in safekeeping and on request promptly provide the
Buyer with all Commercial Information in tangible form which
after Completion remains in the possession or under the control
of that Seller (but not of the Buyer).
6.4.2 Each of the Sellers undertakes at all times to provide the Buyer
promptly on request with all information known to him (or which
would on reasonable enquiry be known to him) in relation to the
Group if it is required for the purposes of complying with
Regulatory Requirements.
7. WARRANTIES
7.1 WARRANTIES, REPRESENTATIONS AND UNDERTAKINGS
7.1.1 The Principal Sellers warrant, represent and undertake to the
Buyer in the terms set out in Schedule 6 as at the date of this
Agreement.
7.1.2 Each of the Warranties set out in the separate paragraphs of
Schedule 6 shall be separate and independent and (except as
expressly otherwise provided) shall not be limited by reference
to any other Warranty or by anything in this Agreement.
7.2 SPECIFIC INDEMNITIES
The Principal Sellers shall indemnify the Buyer and keep the Buyer fully
indemnified in relation to any Losses and Expenses which may be suffered
by the Buyer or the Company as a result of:
7.2.1 the non compliance at any time up to and including Completion by
the Company or the Sellers with the relevant legislation in
connection with the storage or transportation of waste at the
Properties;
7.2.2 the failure by the Sellers or the Company to obtain the fire
certificate relating to the Property situated at Duffryn
Industrial Estate provided that after the Completion Date the
Buyer procures that the Company continues to take such action as
is reasonably necessary to obtain the fire certificate;
7.2.3 the deed of rectification in relation to the land on the east
side of New Road, Tir-Y-Berth, not being registered by the Land
Registry with Full Title Absolute; and
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7.2.4 the agreement dated 18 July 1999 made between Xxxxx
Chromatography, Inc. and ABC Advocates and Business Consultants,
Inc.
7.3 INVESTIGATION BY BUYER
None of the Warranties shall be deemed in any way modified or discharged
by reason of any investigation or inquiry made or to be made by or on
behalf of the Buyer. No information relating to the Company or to any of
the Subsidiaries of which the Buyer has knowledge (actual or
constructive) other than by reason of its being Disclosed shall
prejudice any claim which the Buyer shall be entitled to bring or shall
operate to reduce any amount recoverable by the Buyer under this
Agreement.
7.4 INFORMATION SUPPLIED BY THE COMPANY AND SUBSIDIARIES
The Sellers undertake to the Buyer to waive any and all claims which
they might otherwise have against the Company, the Subsidiaries and/or
their respective officers, employees, agents and consultants or any of
them in respect of any information supplied to them by or on behalf of
the Company and/or the Subsidiaries in connection with the Warranties,
the Tax Covenant and/or the information Disclosed. This shall not
preclude any Seller from claiming against any other Seller under any
right of contribution or indemnity to which he may be entitled.
7.5 RELIANCE
The Principal Sellers accept that the Buyer has been induced to enter
into this Agreement, and has entered into it, upon the basis of and in
reliance upon the Warranties.
8. REMEDIES
8.1 UNDERTAKINGS TO PAY
The Principal Sellers undertake to the Buyer (without restricting the
rights of the Buyer or any remedy it may have on any basis available to
it if any of the Warranties is breached) to pay to the Buyer on demand
the aggregate of:
8.1.1 the full amount by which the value of any asset or contract of
the Company, any of the Subsidiaries and/or of the Business
(including any asset or contract warranted to exist which does
not exist) is or becomes less than it would have been if the
Warranties had not been breached;
8.1.2 an amount equal to any other Losses and Expenses suffered or
incurred by the Buyer, the Company and/or any of the Subsidiaries
as a result of any Warranty being breached; and
8.1.3 all other costs, expenses and disbursements, including legal fees
and expenses, suffered or incurred by the Buyer, the Company
and/or any of the Subsidiaries as a result of any Warranty being
breached.
8.2 REDUCTION OF PURCHASE PRICE
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All payments made by the Sellers to the Buyer as a result of any
Warranty being breached or as a result of a breach of the Tax Covenant
shall be deemed adjustments to the Purchase Price.
8.3 DEPOSIT OF LOAN NOTES
8.3.1 At Completion, the Principal Sellers shall deposit the Deposit
Notes with the Deposit Agent and the Deposit Notes will be held
by the Deposit Agent subject to the terms of the Deposit
Agreement. The Deposit Notes will be deposited as security for
the settlement of any liability of the Principal Sellers to the
Buyer arising under this Agreement, subject, in the case of a
claim arising under the Warranties, to the limitations set out in
Schedule 7.
8.3.2 The Deposit Agent shall hold the Deposit Notes on the terms of
the Deposit Agreement until 30 April 2004 (the "Deposit Period")
and, subject to clause 8.4 below, shall release the Deposit Notes
to the Principal Seller on the next Business Day following the
end of the Deposit Period.
8.4 MECHANISM FOR RELEASE OF DEPOSIT NOTES
8.4.1 If, during the Deposit Period, the Buyer brings a claim against
the Principal Sellers for a breach of this Agreement and either
(i) the amount of such claim has been agreed between the
Principal Sellers and the Buyer (a "Settlement") or (ii) final
judgment in favour of the Buyer has been awarded but the amount
of the claim has not been paid by the Principal Sellers within 28
days of the date of such settlement or final judgment, an amount
of Deposit Notes equal to the amount of such Settlement or final
judgment shall, at the expiry of such 28 day period, be redeemed
by the Deposit Agent in accordance with their terms and the cash
received upon redemption released to the Buyer in full settlement
of such Settlement or final judgement.
8.4.2 If, by the expiry of the Deposit Period, the Buyer has brought a
claim against the Principal Sellers for a breach of this
Agreement but such claim has neither been agreed between the
Principal Sellers and the Buyer as a Settlement nor final
judgment in favour of the Buyer awarded the Deposit Agent will
redeem Deposit Notes equal to the value of such claim at the
expiry of the Deposit Period and will continue to hold the cash
received upon redemption until such time as a Settlement has been
reached or final judgment awarded, at which time the Deposit
Agent shall pay to the Buyer the full amount of any Settlement or
final judgment and shall release the balance, if any, to the
Principal Sellers.
8.4.3 During the Deposit Period, any or all of the Principal Sellers
may by notice in writing to the Deposit Agent require the release
of all or any of his or their Loan Notes, as the case may be, and
the Deposit Agent shall release such Loan Notes within 14 days of
the receipt of such notification provided that the relevant
Principal Seller or Principal Sellers shall have first deposited
with the Deposit Agent as a replacement security the cash
equivalent of the principal amount of the Loan Notes to be
released and the Deposit Agent shall hold such cash amount on the
terms and conditions of the Deposit Agreement.
8.4.4 If any of the Deposit Notes are redeemed whilst held by the
Deposit Agent in accordance with clause 8.4, the distribution of
cash paid out of the redemption
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monies by the Deposit Agent to the Buyer in settlement of any
settlement or final judgment shall be borne by each of the
holders of the Deposit Notes on a pro rata basis by reference to
the total amount of Deposit Notes held by the Deposit Agent on
behalf of the relevant Principal Sellers.
For the purpose of this clause 8.4, "final judgment" shall mean a
judgment against which no appeal has been lodged within three months of
the date of such judgment or by the end of the Deposit Period, whichever
is the earlier.
8.5 GENERAL LAW
For the avoidance of doubt, the rules of general law relating to claims
for damages for breach of warranty shall not apply to the extent that
they might limit the calculation of any amount payable under this clause
8.
9. LIMITATION OF LIABILITY
9.1 LIMITATIONS ON LIABILITY
Subject to clause 9.2, the Principal Sellers' liability in respect of
any claim under the Warranties shall be limited as provided in Schedule
7.
9.2 EXCLUSIONS
Notwithstanding any other provision of this Agreement, the provisions of
this clause 9 and Schedule 7 shall not apply to any claim made against
the Principal Sellers in the case of any fraud or dishonesty by or on
behalf of all or any of the Sellers.
10. TAX COVENANT
The Principal Sellers covenant to the Buyer in the terms set out in
Schedule 10.
11. PROTECTION OF GOODWILL AND TRADE SECRETS
11.1 COVENANTS
As further consideration for the Buyer agreeing to purchase the Shares
on the terms contained in this Agreement and with the intent of assuring
to the Buyer the full benefit and value of the goodwill and connections
of the Group and as a constituent part of the sale of the Shares, the
Principal Sellers shall not (and shall procure that no Connected Person,
employee, agent or representative of any Principal Seller shall)
directly or indirectly, except in accordance with a prior waiver given
by the Buyer:
11.1.1 until 12 months after Completion, carry on or be employed or
engaged by, be an officer of or be concerned, interested or
involved in any way in, any business which competes with the
business then carried on by any member of the Group either in the
United Kingdom or the United States of America provided that
nothing in this clause 11.1.1 shall prevent the Principal Sellers
or any Connected Person from holding for investment purposes only
up to three per cent of any class of the issued share or loan
capital of any company quoted on a recognised investment exchange
(as defined in the Financial Services and Markets Act 2000);
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11.1.2 until 12 months after Completion, offer employment to or offer to
conclude any contract of services with any person who at the date
of Completion was, or subsequently became, an employee of the
Company or any of the Subsidiaries who is engaged in a senior
sales or technical role or procure or facilitate the making of
such an offer by any person, firm or company or entice or
endeavour to entice any such employees of the Company or of any
of the Subsidiaries to terminate their employment with the
Company or any of the Subsidiaries;
11.1.3 at any time after the date of this Agreement disclose to any
person whatsoever or use to the detriment of the Company or any
Subsidiary or otherwise make use of, or through any failure to
exercise all due care and diligence cause any unauthorised
disclosure or use of, any Confidential Information or in respect
of which the Company or any of the Subsidiaries is bound by an
obligation of confidence to a third party or which the Sellers
are prohibited under clause 14 from disclosing without the
Buyer's consent;
11.1.4 until such time as all the Loan Notes issued to the relevant
Principal Seller have been redeemed in full, take any action that
is designed or intended to have the effect of discouraging any
lessor, licensor, customer supplier or other business associate
of the Company or the Subsidiaries from maintaining the same
business relationships with the Company and the Subsidiaries
following Completion as it maintained with the Company and the
Subsidiaries prior to Completion. The Principal Sellers will
refer all customer enquiries relating to the Business to the
Buyer from and after Completion. For the purpose of this clause,
"Loan Notes" shall include such amount of Deposit Notes as were
issued in the name of that Principal Seller and any cash
substituted for such Deposit Notes under clause 8.5.
Each undertaking contained in this clause 11.1 shall be read and
construed independently of the other undertakings and as an entirely
separate and severable undertaking.
11.2 SEVERABILITY OF COVENANTS
Whilst the undertakings in clause 11.1 are considered by the Parties to
be reasonable in all the circumstances, if any one or more should for
any reason be held to be invalid, but would have been held to be valid
if part of the wording were deleted, the undertakings shall apply with
the minimum modifications necessary to make them valid and effective.
11.3 INFORMATION IN THE PUBLIC DOMAIN
The restriction contained in clause 11.1.3 shall not extend to any
confidential or secret information which may come into the public domain
otherwise than through the fault of any of the Sellers.
12. THIRD PARTY RIGHTS
Nothing in this Agreement is intended to confer on any person any right
to enforce any term of this Agreement which that person would not have
had but for the Contracts (Rights of Third Parties) Xxx 0000.
13. FURTHER ASSURANCE
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Any Party shall, from time to time on being required to do so by another
Party, promptly and at the cost and expense of that other Party do or
procure the doing of all such acts and/or execute or procure the
execution of all such documents in a form satisfactory to that other
Party as such other Party may reasonably consider necessary for giving
full effect to this Agreement (or to such parts of it as remain
operative after termination) and securing to each Party the full benefit
of the rights, powers and remedies conferred upon it in this Agreement.
14. CONFIDENTIALITY; ANNOUNCEMENTS
14.1 PROHIBITION ON DISCLOSURE
The Sellers undertake with the Buyer, and the Buyer undertakes with the
Sellers, to keep confidential (except as expressly provided in this
Agreement) at all times after the date of this Agreement, and not
directly or indirectly reveal, report, publish, disclose or transfer or
use for his or its own or any other purposes, any Confidential
Information received or obtained as a result of entering into or
performing, or supplied by or on behalf of a Party in the negotiations
leading to, this Agreement and which relates to:
14.1.1 the negotiations relating to this Agreement;
14.1.2 the subject matter and/or provisions of this Agreement; or
14.1.3 (in the Sellers' case) the Buyer or (in the Buyer's case) the
Sellers.
14.2 PERMITTED DISCLOSURES
The prohibition in clause 14.1 does not apply if:
14.2.1 the Confidential Information was in the public domain before it
was furnished to the relevant Party or, after it was furnished to
that Party, entered the public domain otherwise than as a result
of (i) a breach by that Party of this clause or (ii) a breach of
a confidentiality obligation by the discloser, where the breach
was known to that Party;
14.2.2 disclosure is necessary in order:
(a) to comply with Regulatory Requirements; or
(b) to obtain tax or other clearances or consents from the
Inland Revenue or other relevant Taxation Authority; or
14.2.3 disclosure is made to such of the Party's officers, employees,
agents, consultants and professional advisers as are involved in
the transactions contemplated by this Agreement and is restricted
to matters necessary for the proper performance of their duties
or services in relation to those transactions
provided that any such Confidential Information disclosable pursuant to
clause 14.2.2 shall be disclosed only to the extent required by
Regulatory Requirements and (unless such consultation is prohibited by
Regulatory Requirements) only after consultation with the Buyer or the
Sellers (as the case may be).
15. ASSIGNMENT
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15.1 ASSIGNMENT BY BUYER
The Buyer is permitted to assign the benefit of, and any of its rights
under, this Agreement (including under the Warranties) together with any
cause of action arising in connection with any of them to its successor
in title, to any of its Affiliates or any purchaser or transferee from
it or any of them, or to any lender which, as a condition to making a
loan facility available to the Buyer, requires such assignment by way of
security.
15.2 NO ASSIGNMENT BY SELLERS
None of the Sellers may:
15.2.1 assign, transfer, charge or deal in any way with the benefit of,
or any of their respective rights under or interest in, this
Agreement; or
15.2.2 sub-contract any or all of their respective obligations under it
or do any such thing in relation to any document or arrangement
expressed to be supplemental to this Agreement, or which this Agreement
expressly preserves or requires to be executed, except in accordance
with a prior written waiver given by the Buyer.
15.3 SUCCESSORS IN TITLE
This Agreement shall be binding upon and enure for the benefit of the
personal representatives and permitted assigns and successors in title
of each of the Parties and references to the Parties shall be construed
accordingly.
16. WAIVER; VARIATION; INVALIDITY
16.1 NO WAIVER BY OMISSION, DELAY OR PARTIAL EXERCISE
No right, power or remedy provided by law or under this Agreement shall
be waived, impaired or precluded by:
16.1.1 any delay or omission to exercise it; or
16.1.2 any single or partial exercise of it on an earlier occasion; or
16.1.3 any delay, omission to exercise or single or partial exercise of
any other such right, power or remedy.
16.2 SPECIFIC WAIVERS TO BE IN WRITING
Any waiver of any right, power or remedy under this Agreement must be in
writing and may be given subject to any conditions thought fit by the
grantor. No waiver will take effect if the person seeking the waiver has
failed to disclose to the grantor every material fact or circumstance
which (so far as the person seeking the waiver is aware) has a bearing
on its subject matter. Unless otherwise expressly stated, any waiver
shall be effective only in the instance and only for the purpose for
which it is given.
16.3 VARIATIONS TO BE IN WRITING
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No variation to this Agreement shall be of any effect unless it is
agreed in writing and signed by or on behalf of each Party.
16.4 INVALIDITY
Each of the provisions of this Agreement is severable. If any such
provision is or becomes illegal, invalid or unenforceable in any respect
under the law of any jurisdiction:
16.4.1 that shall not affect or impair the legality, validity or
enforceability in that jurisdiction of the other provisions of
this Agreement, or of that or any provisions of this Agreement in
any other jurisdiction; and
16.4.2 the Parties will use reasonable endeavours to negotiate in good
faith with a view to replacing it with one or more provisions
satisfactory to any relevant Competent Authority but differing
from the replaced provision as little as possible.
16.5 OTHER WARRANTIES
The Buyer confirms that it has not relied on any representation or
warranty or undertaking or indemnity which is not contained in this
Agreement or the Tax Covenant and, without prejudice to any liability
for fraudulent misrepresentation, no Seller shall be under any liability
or shall have any remedy in respect of misrepresentation or untrue
statement unless and to the extent that a claim lies under this
Agreement.
17. TERMINATION
17.1 This Agreement may be terminated forthwith:
17.1.1 by mutual written consent of the Buyer and the Principal Sellers
at any time;
17.1.2 by the Buyer or the Principal Sellers if all of the Conditions
shall have not been fulfilled (or waived) prior to 1 March 2002;
17.1.3 by the Buyer prior to Completion in the event of any material
breach of any of the covenants set out in clause 5, which breach
shall have continued without cure for 30 days following
notification thereof by the Buyer to the Sellers;
17.1.4 by the Buyer prior to Completion if any of the Warranties were
not true and correct in all material respects when given or if
the Buyer becomes aware that any of the Warranties would not be
true and correct in all material respects if repeated as at the
Completion Date.
17.2 Upon termination, the rights and liabilities of the Parties which have
accrued beforehand shall subsist.
17.3 This clause and clauses 1, 12, 13, 14, 15, 16, 18, 20, 22 and 23 of this
Agreement shall survive termination.
18. COSTS AND EXPENSES
18.1 PAYMENT OF COSTS
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18.1.1 Except as otherwise stated in this Agreement, each Party shall
bear its own costs and expenses in relation to the negotiation,
preparation, execution and carrying into effect of this Agreement
and all other agreements forming part of the transactions
contemplated by this Agreement.
18.1.2 The following fees and costs (the "Reorganisation Costs"), which
have been paid in full by the Company, shall be divided equally
between the Sellers and the Company:
(i) the fees of Xxxxx Xxxxx and Pricewaterhouse Coopers
incurred by the Company and the Subsidiaries in relation
to the Reorganisation amounting to Pound Sterling58,964
plus VAT of Pound Sterling10,319, totalling Pound
Sterling69,283;
(ii) the fees and costs incurred by the Company in connection
with the preparation and delivery by Ernst & Young of the
Audited Financial Statements amounting to Pound
Sterling14,000 plus VAT of Pound Sterling2,450, totalling
Pound Sterling16,450; and
(iii) all stamp duty and other Taxation and costs arising in
connection with the Reorganisation amounting to Pound
Sterling20,496
such that the cash paid to the Sellers at Completion will
comprise the Cash Amount less Pound Sterling53,115, representing
the fifty per cent share of the Reorganisation Costs payable by
the Sellers.
18.1.3 To the extent that the Company recovers any amount of VAT paid in
relation to clause 18.1.2(i)(a) or (ii) above, the Buyer shall
procure that the Company reimburses half of the amount of such
VAT recovered to the Sellers and for this purpose the payment of
such amount to Xxxxx Xxxxx shall be a full discharge of the
Company's obligations.
18.2 CLAIMS BY DIRECTORS ETC
The Principal Sellers covenant with the Buyer to pay to the Company on
demand an amount equal to all Losses and Expenses any Group Company may
suffer or incur as a result of any and all claims which may be made
against it by directors by reason of their resignation and/or
termination of their employment in accordance with Schedule 5.
18.3 UNAUTHORISED OR INVALID DOCUMENTS
18.3.1 The Principal Sellers shall indemnify the Buyer and keep the
Buyer indemnified on demand against any Losses and Expenses it
may suffer or incur as a result of any document delivered to it
pursuant to clause 6 being unauthorised, invalid or for any other
reason ineffective for its purpose.
18.3.2 The Buyer shall indemnify the Sellers and keep the Sellers
indemnified on demand against any Losses and Expenses which they
may suffer or incur as a result of any document delivered to them
pursuant to clause 6 being unauthorised, invalid or for any other
reason ineffective for its purpose.
18.4 SELLERS' COSTS
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The Buyer shall make a contribution of Pound Sterling320,000 towards the
transaction costs of the Sellers ("the Cost Payment") by electronic bank
transfer. The Cost Payment will be paid to the Sellers' solicitors,
Xxxxx Xxxxx, at Completion by electronic bank transfer, and Xxxxx Xxxxx
are hereby authorised by the Sellers to receive the Cost Payment.
Payment to Xxxxx Xxxxx will be a good sufficient discharge by the Buyer
of its obligations in respect of the Cost Payment and the Buyer shall
not be further concerned with the application of the monies so paid.
19. PAYMENTS
19.1 NO DEDUCTION ETC
19.1.1 Except as otherwise expressly provided in this Agreement, all
payments to be made under this Agreement shall be made in full
without any set-off or counterclaim and free from any deduction
or withholding except as may be required by law (in which event
such deduction or withholding shall not exceed the minimum amount
required by law and the payer will simultaneously pay to the
payee whatever additional amount is required for the net amount
received to equal what would have been received if no such
deduction or withholding had been required).
19.1.2 Any amount payable in relation to any Warranty shall be increased
to the extent necessary to ensure that the net amount received by
the Buyer shall after Taxation be equal to that which it would
have received had the payment not been subject to Taxation.
19.2 INTEREST ON LATE PAYMENT
If a Party fails to pay any sum payable by it under this Agreement on
the due date for payment, it shall pay interest on such sum for the
period from and including the due date up to the date of actual payment
(after as well as before judgment) at the base rate from time to time of
Bank of Scotland. The interest will accrue from day to day and shall be
payable on demand and shall be compounded quarterly in arrears.
20. ENTIRE AGREEMENT
20.1 ENTIRE AGREEMENT
This Agreement, together with the Confidentiality Agreement dated 26
November 2001, constitutes the whole and only agreement and
understanding between the Parties in relation to its subject matter.
Except as provided in clause 20.3, all previous agreements,
understandings, undertakings, representations, warranties and
arrangements of any nature whatsoever between the Parties or any of them
with any bearing on the subject matter of this Agreement are superseded
and extinguished (and all rights and liabilities arising by reason of
them, whether accrued or not at the date of this Agreement, are
cancelled) to the extent that they have such a bearing.
20.2 OTHER REMEDIES
The rights, powers and remedies provided in this Agreement or expressly
referred to in it are independent and cumulative and do not exclude any
rights, powers or remedies
-23-
(express or implied) which are available as a matter of common law,
statute, custom or otherwise.
20.3 FRAUD
Nothing in this Agreement shall be read or construed as excluding any
liability or remedy in respect of fraud or dishonesty.
21. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the
Parties on different counterparts. Each counterpart shall constitute an
original of this Agreement but all the counterparts shall together
constitute one and the same Agreement.
22. NOTICES
22.1 FORM OF NOTICES
Any communication to be given in connection with the matters
contemplated by this Agreement shall except where expressly provided
otherwise be in writing and shall either be delivered by hand or
facsimile transmission. Delivery by courier shall be regarded as
delivery by hand.
22.2 ADDRESS AND FACSIMILE
Any communication to (i) the Buyer or (ii) the Sellers collectively
shall be sent to the address or facsimile number of the relevant Party
referred to below or to such other address or facsimile number as may
previously have been communicated to the sending Party in accordance
with this clause. Each communication shall be marked for the attention
of the relevant person. Communications made to an individual Seller
shall be sent to the address specified against the name of such Seller
in Schedule 1.
Address Facsimile number For the attention of
------- ---------------- --------------------
SELLERS Xxxxxxx Xxxx Xxxxx Xxxxx
Xxxxxxxx
Xxxxxxx
XX00 0XX
WITH A COPY TO:
Xxxxx Xxxxx 029 20 345511 Xxxxxx Bound
Xxxxxxx Xxxxx
Xxxxxxxx Xxxxx
Xxxxxxx
XX00 0XX
BUYER 0000 Xxxxx Xxxxx
Xxxxxx Xxxx
Xxxxxxxxxx 00000
XXX 000-000-000-0000 Xxxxx Xxxxxxxxxxx
WITH COPIES TO:
-00-
Xxxxxx, Xxxxxxx,
Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx
XX 00000
XXX 000-000-000-0000 Xxxxxxx X. X'Xxxxxxx, Esq.
and
Paul, Hastings, Xxxxxxxx & Xxxxxx, LLP
Tower 42
00 Xxx Xxxxx Xxxxxx
Xxxxxx
XX0X 0XX x00-000-000-0000 Xxxx Xxxxx
22.3 DEEMED TIME OF SERVICE
A communication shall be deemed to have been served:
22.3.1 if delivered by hand at the address referred to in clause 22.2 at
the time of delivery; and
22.3.2 if sent by facsimile to the number referred to in that clause, at
the time of completion of transmission by the sender.
If a communication would otherwise be deemed to have been delivered
outside normal business hours (being 9:30 a.m. to 5:30 p.m. on a
Business Day) in the time zone of the territory of the recipient under
the preceding provisions of this clause, it shall be deemed to have been
delivered at the next opening of such normal business hours in the
territory of the recipient.
22.4 PROOF OF SERVICE
In proving service of the communication, it shall be sufficient to show
that delivery by hand was made or that the facsimile was despatched and
a confirmatory transmission report received.
22.5 CHANGE OF DETAILS
A Party may notify the other Parties of a change to its name, relevant
person, address or facsimile number for the purposes of clause 22.2
provided that such notification shall only be effective on:
22.5.1 the date specified in the notification as the date on which the
change is to take place; or
22.5.2 if no date is specified or the date specified is less than five
clear Business Days after the date on which notice is deemed to
have been served, the date falling five clear Business Days after
notice of any such change is deemed to have been given.
22.6 NON-APPLICABILITY TO PROCEEDINGS
-25-
For the avoidance of doubt, the Parties agree that the provisions of
this clause shall not apply in relation to the service of any writ,
summons, order, judgment or other document relating to or in connection
with any Proceedings.
23. GOVERNING LAW AND JURISDICTION
23.1 ENGLISH LAW
This Agreement shall be governed by and construed in accordance with
English law.
23.2 ARBITRATION
Any dispute which may arise out of or in connection with this Agreement
shall be referred and finally resolved by arbitration under the rules of
the London Court of International Arbitration (the "LCIA RULES") which
are deemed to be incorporated by reference to this clause. The
procedural law governing any arbitration arising hereunder (insofar as
not governed by the LCIA Rules) shall be English law. The place of the
arbitration shall be London.
AS WITNESS the Parties have executed this Agreement as a Deed on the date first
appearing above
-26-
SCHEDULE 1
PART 1
DETAILS OF THE SELLERS
------------------------------ ---------------- ---------------- -------------- -------------
(1) (2) (3) (4) (5)
------------------------------ ---------------- ---------------- -------------- -------------
Name Number of Amount of Cash Amount of Amount of
Ordinary Consideration Loan Notes Consideration
Shares Held Pound Sterling Pound Stock
Sterling Pound
Sterling
------------------------------ ---------------- ---------------- -------------- -------------
Xxxxxxx Xxxxx Xxxxx 2002 73,788 0 4,518,924 604,495
Trust
------------------------------ ---------------- ---------------- -------------- -------------
Xxxxxxx Xxxxx Xxxxx 1,582 109,845
------------------------------ ---------------- ---------------- -------------- -------------
Xxxxxxxxx Xxxxx 130 9,026
------------------------------ ---------------- ---------------- -------------- -------------
Xxxx Xxxxxx 2002 Trust 11,641 0 700,973 107,312
------------------------------ ---------------- ---------------- -------------- -------------
Xxxx Xxxxxx 1,632 113,317
------------------------------ ---------------- ---------------- -------------- -------------
Xxxxx Xxxxxx 130 9,026
------------------------------ ---------------- ---------------- -------------- -------------
Xxxxxx Xxxxxx 2002 Trust 13,013 0 797,278 106,271
------------------------------ ---------------- ---------------- -------------- -------------
Xxxxxx Xxxxxx 130 9,026
------------------------------ ---------------- ---------------- -------------- -------------
Xxxxx Xxxxxx 130 9,026
------------------------------ ---------------- ---------------- -------------- -------------
Xxxxx Xxxxx Xxxxx 3,562 247,325
------------------------------ ---------------- ---------------- -------------- -------------
Xxx Xxxxx 200 13,887
------------------------------ ---------------- ---------------- -------------- -------------
Xxxx Cravos 5,076 311,809 40,640
------------------------------ ---------------- ---------------- -------------- -------------
Jo Cravos 4,532 278,390 36,286
------------------------------ ---------------- ---------------- -------------- -------------
Xxxxx Xxxxx Xxxxx 245 17,011
------------------------------ ---------------- ---------------- -------------- -------------
Xxxxx Xxxxxxxx 245 17,011
------------------------------ ---------------- ---------------- -------------- -------------
Xxxxx Xxxxx 90 6,249
------------------------------ ---------------- ---------------- -------------- -------------
Xxxx Xxxxxxxx 50 3,472
------------------------------ ---------------- ---------------- -------------- -------------
Xxxx Xxxxxxx 50 3,472
------------------------------ ---------------- ---------------- -------------- -------------
Xxxxxxx Xxxxx 50 3,472
------------------------------ ---------------- ---------------- -------------- -------------
Xxxxx Xxxxxx 25 1,736
------------------------------ ---------------- ---------------- -------------- -------------
Xxxxxxxx Xxxxx 25 1,736
------------------------------ ---------------- ---------------- -------------- -------------
Xxxxxxx Xxxxxxxxx 20,938 104,228 1,181,090 168,498
------------------------------ ---------------- ---------------- -------------- -------------
Xxx Xxxxxxxxx 107 7,429
------------------------------ ---------------- ---------------- -------------- -------------
The Trustees of the Xxxxxxx 5,407 375,431
and Xxxxxxxx Xxxxx Trust
------------------------------ ---------------- ---------------- -------------- -------------
XX Xxxxx Investment Limited 15,638 557,102 360,214 168,498
Partnership LLP
------------------------------ ---------------- ---------------- -------------- -------------
Xxxxxx X. Xxxxxx 5,371 238,379 91,521 43,000
------------------------------ ---------------- ---------------- -------------- -------------
Xxx Xxxxxxxx 3,482 241,768
------------------------------ ---------------- ---------------- -------------- -------------
Xxxxxxx Xxxx 957 66,420
------------------------------ ---------------- ---------------- -------------- -------------
Xxxxxxxx Xxxxxxxxxxxxx 964 66,951
------------------------------ ---------------- ---------------- -------------- -------------
Sorbent AB 482 33,476
------------------------------ ---------------- ---------------- -------------- -------------
Stepbio SRL 1,060 73,593
------------------------------ ---------------- ---------------- -------------- -------------
Niveve AG 1,393 96,707
------------------------------ ---------------- ---------------- -------------- -------------
Propex Enterprises AG 1,389 96,442
------------------------------ ---------------- ---------------- -------------- -------------
Uniflex Co. Ltd 1,446 100,427
------------------------------ ---------------- ---------------- -------------- -------------
X X Xxx Xxxxx 3,457 240,060
------------------------------ ---------------- ---------------- -------------- -------------
X Xxxxxxxxxx 601 41,750
------------------------------ ---------------- ---------------- -------------- -------------
TOTAL SHARES IN JCL 179,018 3,505,000 7,650,000 1,275,000
------- --------- --------- ---------
------------------------------ ---------------- ---------------- -------------- -------------
-27-
PART 2
STOCK OPTIONS
----------------------------------------------- ---------------------------------------------
INDIVIDUAL NUMBER OF STOCK OPTIONS
----------------------------------------------- ---------------------------------------------
Xxxxx Xxxxx 0
----------------------------------------------- ---------------------------------------------
Xxxx Xxxxxx 60,000
----------------------------------------------- ---------------------------------------------
Xxxxxx Xxxxxx 40,000
----------------------------------------------- ---------------------------------------------
Xxxxxxx Xxxxxxxxx 40,000
----------------------------------------------- ---------------------------------------------
Xxxxxx X. Xxxxxx 40,000
----------------------------------------------- ---------------------------------------------
Xxxx Xxxxx 0
----------------------------------------------- ---------------------------------------------
Xxxxxxx Xxxxxx 22,000
----------------------------------------------- ---------------------------------------------
Xxxxx Xxxxxx 22,000
----------------------------------------------- ---------------------------------------------
Xxxxx Xxxxx 22,000
----------------------------------------------- ---------------------------------------------
Xxxxx Xxxxx 22,000
----------------------------------------------- ---------------------------------------------
Xxxxx Xxxxxxxxx 15,000
----------------------------------------------- ---------------------------------------------
Xxxxx Gairlock 12,800
----------------------------------------------- ---------------------------------------------
Xxxx Xxxxxxx 9,000
----------------------------------------------- ---------------------------------------------
Xxxx Xxxxxxxx 9,000
----------------------------------------------- ---------------------------------------------
Xxxxx Small 9,000
----------------------------------------------- ---------------------------------------------
Xxxxxxxx Xxxxx 9,000
----------------------------------------------- ---------------------------------------------
Xxxxxx Xxxxxxx 9,000
----------------------------------------------- ---------------------------------------------
Xxxx Xxxxxxx 9,000
----------------------------------------------- ---------------------------------------------
TOTAL 349,800
----------------------------------------------- ---------------------------------------------
-28-
SCHEDULE 2
PART 1
DETAILS OF THE GROUP
Name and Registered Number: Xxxxx Chromatography Limited - 1033865
Country of Incorporation: England and Wales
Registered Office: Xxx-X-Xxxxx Xxxxxxxxxx Xxxxxx
Xxx Xxxx Xxxxxxx
Xxx-Xxxxxxxxx XX00 0XX
Authorised share capital: Pound Sterling500,000 divided into 500,000 ordinary
shares of Pound Sterling1 each
Issued share capital at Pound Sterling179,018 divided into 179,018 ordinary
the date of this shares of Pound Sterling1 each
Agreement:
Directors: Xxxx XXXXXX
Xxxxx Xxxxx XXXXX
Xxxxxx Xxxxxxx XXXXXX
Xxxxxxx Xxxxx XXXXX
Secretary: Xxxx XXXXXXXX
Auditors: Xxxxxxx & Xxxxx
Bankers: Barclays Bank Plc
Accounting Reference Date: 31 December
Outstanding Charges:
1. Debenture fixed and floating charge dated 20 November 1981, with
Barclays Bank Ltd over undertaking and all property and assets, present
and future, including all goodwill, book debts and uncalled capital
together with all fixtures plant and machinery;
2. Legal charge dated 4 April 1986, over property of Xxx X Xxxxx Xxxxxxxxxx
Xxxxxx, Xxxxxxx, Xxx-Xxxxxxxxx, approximately 1.17 acres as comprised in
conveyance dated 4 April 1986.
3. Guarantee and Debenture dated 4 December 1992 with Barclays Bank Plc.
Fixed and Floating charges over the undertaking and all property and
assets present and future, including goodwill, book debts, uncalled
capital and building fixtures, fixed plant and machinery.
-29-
SCHEDULE 2
PART 2
SUBSIDIARIES
NAME AND REGISTERED NUMBER: INTERNATIONAL SORBENT TECHNOLOGY LIMITED - 2758858
Country of Incorporation: England and Wales
Registered Office: Xxxxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxxxx
Xxx-Xxxxxxxxx XX00 0XX
Authorised share capital: Pound Sterling50,000 divided into 50,000 ordinary
shares of Pound Sterling1 each
Issued share capital: Pound Sterling25,000 divided into 25,000 ordinary
shares of Pound Sterling1 each
Directors: Xxxxxxx Xxxxxxx XXXXX
Xxxxxxx Xxxxxx XXXXXXXXX
Xxxxxxx Xxxxx XXXXX
Xxxxxx Xxxxxxx XXXXXX
Secretary: Xxxxxxx Xxxxxx XXXXXXXXX
Auditors: Xxxxxxx & Xxxxx
Bankers: Barclays Bank Plc
Outstanding Charges:
1. Guarantee and Debenture dated 4 December 1992 with Barclays Bank Plc.
Fixed and Floating charges over the undertaking and all property and
assets, present and future, including goodwill, book debts, uncalled
capital, building fixtures, fixed plant and machinery; and
2. Legal charge dated 23 June 1995 with Barclays Bank Plc over land at
Duffryn Farm Industrial Estate, Ystrad Mynach, Mid-Glamorgan.
NAME AND REGISTERED NUMBER: XXXXX CHROMATOGRAPHY U.S.A., INC.
Country of Incorporation: Colorado, USA
Registered Office: C.T. Corporation
Registered agent:
00000 Xxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx
Xxxxxxxx 00000
XXX
-30-
Authorised share capital: 100,000 designated common shares having no par
value
Issued share capital: 40,000 designated common shares having no par value
Directors: Xxxxxx X. XXXXXX
Xxxxxxx Xxxxx XXXXX
Xxxx XXXXXX
Secretary: Xxxxxx X. Xxxxxx
Bankers: First Bank
00000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxx
Xxxxxxxx 00000
XXX
-31-
SCHEDULE 3
PROPERTIES
----------------------- -------------- -------------- ----------------- --------------- --------------
ADDRESS FREEHOLD/ USE TERM OF LEASE RENT (IF TITLE
LEASEHOLD (IF APPLICABLE) APPLICABLE) NO. (IF
APPLICABLE)
----------------------- -------------- -------------- ----------------- --------------- --------------
Freehold land and Freehold Factory with X/X X/X XX000000
buildings lying on ABSOLUTE ancillary WA448137
the east side of New offices
Road, Tir-Y-Berth
Freehold property at Freehold Factory with X/X X/X XX000000
Duffryn Farm ABSOLUTE ancillary
Industrial Estate, offices
Ystrad Mynach
Leasehold property at Leasehold Bulk Storage One year from Pound Not
Unit 40, Duffryn 1st August 1997 Sterling2,800 registerable
Industrial Estate, and thereafter pa plus at the Land
Ystrad Mynach from year to insurance, Registry.
year terminable rent and
by the tenant service
on not less charge.
than 3 months
notice by the
landlord on not
less than 6
months notice.
-32-
SCHEDULE 4
INTELLECTUAL PROPERTY
PART 1
REGISTERED IP
------------------------------- -------------------------- -----------------------------------
DESCRIPTION OF INTELLECTUAL REGISTERED HOLDER REGISTRATION DETAILS
PROPERTY RIGHTS
------------------------------- -------------------------- -----------------------------------
Flash Vac IST Limited A registered trademark in the UK,
registered under number 2239506
in respect of class 9; scientific
apparatus and instruments as of
15th July 2000.
ISOLUTE IST Limited Registered trademark, registered
in;
USA, registration
number 2086874 as of the
12th August 1997
UK registration
number 1522037 as of the 23rd
December 1992.
Germany
ISOLUTE ENV+ IST Limited registration number 2066609 as of
3rd June 1994.
A registered trademark registered
in the;
UK with
registration number 2019436 under
class 1 as of 1st May 1995.
ISOLUTE ARRAY IST Limited US registration
number 2102587 as of
7th October 1997.
VACMASTER IST Limited A registered trademark registered
in the;
UK under
registration number 2181897 under
class 1 as of 12th November 1998.
-33-
IST IST Limited Registered under the United States
patent and trademark office under
registration number 2026654 as 31st
December 1996.
Trademark registered in the;
UK under
registration number 1522401 under
class 1 as of 23rd December 1992.
Germany under
number 2908759 as of
10th July 1995.
Genesis JCL Limited
US under
registration number 2064549
registered as of 27th May 1997.
Flashmaster II JCL Limited
Trademark registered in the UK
Flashpack JCL Limited under registration number 2050981
in respect of Class 9 as of
12 January 1996
Flashmaster Lite JCL Limited
A trademark in process of
registration.
Flashmaster Parallel JCL Limited
A trademark in process of
registration.
Flashmaster Personal JCL Limited
A trademark in process of
registration.
Flashmaster Solo JCL Limited
A trademark in process of
registration.
A trademark in process of
registration.
A trademark in process of
registration.
------------------------------- -------------------------- -----------------------------------
PART 2
MATERIAL UNREGISTERED IP
-34-
None
PART 3
LICENCES-IN
None
PART 4
LICENCES-OUT
Under an agreement between Xxxxx Chromatography Limited ("JCL") and Axel Sembrau
GmbH ("AXEL") dated on or about 11 July 1997, JCL licensed to Axel a section of
JCL's JCL6000 for Windows Chromatography data system for use and sale as part of
an online/process GC product.
-35-
SCHEDULE 5
COMPLETION OBLIGATIONS
1. SELLERS' COMPLETION OBLIGATIONS
The Sellers will be obliged to deliver to the Buyer (or otherwise make
available to the satisfaction of the Buyer):
(a) evidence in a form satisfactory to the Buyer of the
fulfilment of the Conditions set out in clause 4.1 (other
than clauses 4.1.1, 4.1.3, 4.1.18 and 4.1.19);
(b) transfers of the Shares duly executed by the registered
holders in favour of the Buyer (or as the Buyer may
direct) together with the relevant share certificates in
the names of such registered holders;
(c) certificates in respect of all issued shares in the
capital of each of the Subsidiaries and duly executed
transfers of all shares in any Subsidiary held by any
person other than the Company or another Subsidiary in
favour of such persons as the Buyer shall direct;
(d) such waivers, consents or other documents (including any
power of attorney under which any document required to be
delivered under this Schedule has been executed) in the
agreed form as are required to enable the Buyer and/or its
nominee(s), as the case may be, to be registered as the
holders of the Shares;
(e) the Deposit Agreement, duly executed by the Principal
Sellers;
(f) the duly signed letters of representation from each of the
Sellers to whom Consideration Stock is to be issued at
Completion, as required by clause 4.1.20;
(g) the statutory registers and minute books (properly written
up to the time immediately prior to Completion), the
certificate of incorporation and (if applicable) any
certificate of incorporation on change of name of the
Company and each of the Subsidiaries;
(h) the documents of title to those of the Properties which
are unencumbered;
(i) the Amended Investors' Rights Agreement, executed by all
of the Sellers to whom Consideration Stock is to be
issued;
(j) certificates from each of the banks at which the Company
and each of the Subsidiaries maintains an account of the
amount standing to the credit or debit of all such
accounts as at the close of business on the last Business
Day before Completion;
(k) the cheque books relating to all the bank accounts of the
Company and each of the Subsidiaries;
-36-
(l) the written resignations in the agreed form of such of the
directors and the secretary or secretaries of the Company
and the Subsidiaries as are required by the Buyer to
resign from their respective offices, such resignations to
take effect from Completion, together with a signed waiver
by each such director, in a form required by the Buyer,
that he has no claim against the Company or any
Subsidiary;
(m) the written resignation of the auditors of the Company and
of each of the Subsidiaries in the agreed form to take
effect from Completion containing the statements referred
to in section 394(1) CA 85 that they consider there are no
such circumstances as are mentioned in that section and
confirming that they have deposited or shall deposit that
statement in accordance with section 394(2) CA 85 at the
respective registered offices of the Company and each of
the Subsidiaries; and
(n) irrevocable powers of attorney in the agreed form executed
by each of the holders of the Shares in favour of the
Buyer or its nominee(s) to enable the beneficiary (pending
registration of the transfers of the Shares) to exercise
all voting and other rights attaching to the Shares and to
appoint proxies for this purpose;
and to cause a board meeting of the Company and of each of the
Subsidiaries to be held at which:
(i) in the case of the Company only, the transfers of
the Shares will be approved for registration
(subject to their being duly stamped, which shall
be at the cost of the Buyer);
(ii) all resignations provided for above will be
tendered and accepted so as to take effect at the
close of the meeting;
(iii) all persons nominated by the Buyer (in the case of
directors, subject to any maximum number imposed by
the relevant articles of association) will be
appointed additional directors and appointed
secretaries;
(iv) all existing instructions and authorities to
bankers will be revoked and will be replaced with
alternative instructions, mandates and authorities
in such form as the Buyer may require;
(v) in the case of the US Subsidiary, the accounting
reference date will be changed to 31 December;
(vi) Ernst & Young will be appointed auditors;
(vii) in the case of the Subsidiaries only, transfers
will be approved for registration (subject to their
having been duly stamped at the cost of the
Company) and declarations of trust in a form
satisfactory to the Buyer will be executed in
respect of all shares in the Subsidiaries held by
any person other than the Company; and
-37-
(viii) such other business as the Buyer may reasonably
require will be conducted.
2. BUYER'S COMPLETION OBLIGATIONS
The Buyer's obligations (which are subject to the Sellers complying with
all their obligations under paragraph 1) are to:
(a) deliver to the Sellers the Amended Investors' Rights
Agreement duly executed by the Buyer;
(b) deliver to the Sellers the Deposit Agreement duly executed
by the Buyer and the Buyer's Counsel;
(c) pay or procure the payment of the Cash Amount to such
account or accounts as the Sellers shall have notified to
the Buyer;
(d) issue to the Sellers in the amounts set out in Schedule 1:
(i) the Loan Notes (other than the Deposit Notes;
(ii) the Consideration Stock;
(e) authorise the Buyer's transfer agent to release the
Consideration Stock to the Sellers;
(f) deposit the Deposit Notes with the Deposit Agent;
(g) deliver the duly executed Guarantee;
(h) procure that a meeting of either the board of directors of
the Buyer, or the compensation committee thereof, is held
as soon as practicable following Completion at which a
resolution is passed to issue the Stock Options to the
persons listed in Part 2 of Schedule 1.
-38-
SCHEDULE 6
WARRANTIES
IN THIS SCHEDULE (a) REFERENCES TO THE COMPANY SHALL (SAVE WHERE THE CONTEXT
OTHERWISE REQUIRES, OR WHERE OTHERWISE EXPRESSLY PROVIDED) BE DEEMED TO INCLUDE
AN ADDITIONAL AND SEPARATE REFERENCE TO EACH MEMBER OF THE GROUP; AND (b)
REFERENCES TO ANY LEGAL TERM, CONCEPT OR LEGISLATION UNDER THE LAWS OF ENGLAND
AND WALES, WITH RESPECT TO THE US SUBSIDIARY, SHALL BE DEEMED TO BE REFERENCES
TO THE US FEDERAL OR STATE TERM, CONCEPT OR LEGISLATION WHICH MOST CLOSELY
APPROXIMATES THERETO.
PART 1
SPECIFIC WARRANTIES
1. INFORMATION
To the best of the Principal Sellers' knowledge, all facts and
circumstances relating to the Company which might reasonably be expected
to materially and adversely affect the financial condition, assets or
prospects of the Company have been Disclosed, and the Principal Sellers
are not aware of anything which makes any such fact or circumstance
misleading.
2. THE COMPANY
2.1 FOUNDING DOCUMENTS
2.1.1 The copy of the memorandum and articles of association of the
Company (but not for the purposes of this paragraph 2.1.1, the US
Subsidiary) which is included in the Disclosure Documents is true
and complete in all respects and has embodied in it or annexed to
it a copy of every such resolution and agreement as is referred
to in section 380(4) CA 85. The Company has at all times carried
on its business and affairs in all respects in accordance with
its memorandum and articles of association and all such
resolutions and agreements.
2.1.2 The US Subsidiary: (a) is a corporation duly organised, validly
existing, and in good standing under the laws of the State of
Colorado, and is duly authorised to conduct business in, and is
in good standing under, the laws of, each jurisdiction where such
qualification is required; (b) has full corporate power and
authority and all licenses, permits, and authorisations necessary
to carry on the businesses in which it is engaged and in which it
presently proposes to engage and to own and to use the properties
owned and used by it; (c) has no directors or officers other than
those listed in the Disclosure Documents. True and complete
copies of the charter and bylaws, the minute books (containing
the records of meetings of the stockholders, the board of
directors, and any committees of the board of directors), the
stock certificate books, and the stock record books of the US
Subsidiary are included in the Disclosure Documents. The US
Subsidiary is not in default under or in violation of any
provision of its charter or bylaws.
2.2 STATUTORY BOOKS
The statutory books (including all registers and minute books) of the
Company have been properly kept and contain an accurate and complete
record of the matters which
-39-
should be dealt with in those books, and no notice or allegation that
any of them is incorrect or should be rectified has been received.
2.3 STATUTORY RETURNS
The Company has complied with the provisions of the Companies Acts (as
defined in CA 85) and the Companies Xxx 0000 and all returns,
particulars, resolutions and other documents required to be filed with
or delivered to the Registrar of Companies or to any other authority
whatsoever by the Company have been correctly and properly prepared and
so filed or delivered.
2.4 SHARE CAPITAL
2.4.1 The Shares constitute the whole of the issued share capital of
the Company. There is no Encumbrance on, over or affecting any of
the Shares or any unissued shares, debentures or other securities
of the Company. No claim has been made by any person to be
entitled to the benefit of any such Encumbrance and no person has
the right (exercisable now or in the future and whether
contingent or not) to call for the issue of any share or loan
capital of the Company.
2.4.2 The Company has not at any time:
(a) repaid, redeemed or purchased any of its own shares, or
otherwise reduced its issued share capital or any class of
it, or capitalised, in the form of shares, 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 any
resolution to do so, or agreed to do any of the above;
(b) directly or indirectly provided any financial assistance
for the purpose of the acquisition of shares in the
Company or any holding company of the Company or for the
purpose of reducing or discharging any liability incurred
in such an acquisition whether pursuant to sections 155
and 156 CA 85 or otherwise.
2.5 SOLVENCY
2.5.1 The Company has not stopped payment of its debts, has not entered
into any scheme of arrangement or voluntary arrangement with any
of its creditors, and is not insolvent or unable to pay its debts
according to section 123 Insolvency Xxx 0000.
2.5.2 No order has ever been made or petition presented or resolution
passed for the winding up of the Company and no distress,
execution or other process has ever been levied on any of its
assets.
2.5.3 No administrative or other receiver has been appointed by any
person over the whole or any part of the business or assets of
the Company, nor has any order been made or petition presented
for the appointment of an administrator in respect of the
Company.
-40-
2.5.4 There are no circumstances which would entitle any person to
present a petition for the administration or winding up of the
Company or to appoint a receiver or administrator over the whole
or any part of the Company's undertaking or assets.
3. CONNECTED BUSINESS
3.1 SUBSIDIARIES
All of the issued share capital of each of the Subsidiaries is held,
legally and beneficially, by the Company, free from all Encumbrances and
with all rights attaching thereto.
3.2 CONNECTED TRANSACTIONS
The Company:
3.2.1 is not and has not agreed to become the holder or other owner of
any shares, debentures or other securities of any body corporate
(whether incorporated in the United Kingdom or elsewhere), other
than the shares in the Subsidiaries;
3.2.2 save as contemplated by this Agreement, has not agreed to become
a subsidiary of any other body corporate or under the control of
any group of bodies corporate or consortium;
3.2.3 is not and has not agreed to become (i) a member of any
partnership, joint venture, consortium or other unincorporated
association, or (ii) a party to any agreement or arrangement for
sharing commissions or other income; and
3.2.4 save for the US Subsidiary, has no branch, place of business or
substantial assets outside England and Wales or any permanent
establishment (as that expression is defined in any relevant
Order in Council made pursuant to section 788 TAXES ACT 88) in
any country outside the United Kingdom.
4. ACCOUNTS
4.1 GENERAL
4.1.1 The Audited Financial Statements were properly audited and
prepared and presented in accordance with UK GAAP as then
applied, are consistent with the practice and policies adopted by
the Company during the accounting period previous to the
accounting period ended on 31 December 2000, comply with the
requirements of the CA 85 and give a true and fair view of the
assets, liabilities and the financial position of the Company as
at 31 December 2000.
4.1.2 The JCI Accounts (including the notes thereto) present fairly the
financial condition of the US Subsidiary as of 31 October 2000
and the results of operations of the US Subsidiary for the period
covered thereby, are correct and complete, and are consistent
with the books and records of the US Subsidiary, which books and
records are correct and complete.
4.1.3 The Unaudited Combined Results are consistent with the practice
and policies adopted by the Company for the preparation of its
audited financial statements during the accounting period ended
on the Accounts Date.
-41-
4.1.4 The Management Accounts have been properly proposed in accordance
with the Company's accounting records, adopting fundamental
accounting concepts and accounting policies consistent with those
adopted in the Company's normal monthly accounting procedures and
(except as expressly disclosed in them) do not include any
unusual, exceptional, non-recurring or extraordinary items of
income or expenditure.
4.2 PROVISIONS
Without prejudice to the contents of paragraph 4.1.3 above, the
Unaudited Combined Results make full provision or reserve for all
liabilities, contingent liabilities, bad and doubtful debts, obsolete or
slow moving stock and depreciation, and do not include (and the profits
of the Company for the financial periods covered by the Unaudited
Combined Results have not been affected to a material extent by) any
unusual, extraordinary or non-recurring items of income or expenditure.
4.3 TRUE AND FAIR VIEW
The Unaudited Combined Results give a true and fair view of the assets,
liabilities and financial position of the Company at the Accounts Date
(except that they do not contain all notes and disclosures required to
comply with UK GAAP), and there were no unusual, extraordinary or
non-recurring items or transactions entered into other than in the
normal course of trade which materially affect the Unaudited Combined
Results.
4.4 BASIS OF VALUATION
The basis of valuation for stock-in-trade, work-in-progress and of
depreciation of fixed assets adopted for the purpose of the Unaudited
Combined Results and each of the accounting periods of the Company for
the two financial years preceding the accounting period ended on the
Accounts Date has, in all material respects, remained consistent.
4.5 BOOKS OF ACCOUNT
All accounts, books, ledgers, financial and other necessary records of
whatsoever kind of the Company (including all invoices and other records
required for VAT purposes) have been accurately maintained, are in the
possession of the Company and contain true and accurate records of all
matters (including those required to be entered in them by all
applicable legislation) and no notice or allegation that any of them is
incorrect or should be rectified has been received.
5. POST-ACCOUNTS DATE EVENTS
5.1 Since the Accounts Date each of the Company, the US Subsidiary and the
UK Subsidiary has:
5.1.1 carried on its business in the normal course and without any
interruption or alteration in the nature, scope or manner of its
business;
5.1.2 except as set out in the Unaudited Combined Results, not
experienced any deterioration in its financial position or
prospects or turnover or suffered any diminution of its assets by
the wrongful act of any person and, except as set out in the
Unaudited Combined Results, the Company has not had its business,
profitability or prospects materially and adversely affected by
the loss of any
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important customer or source of supply or by any abnormal factor
not affecting similar businesses to a like extent and so far as
the Principal Sellers are aware and there are no facts which are
likely to give rise to any such effects;
5.1.3 not acquired or disposed of or agreed to acquire or dispose of
any assets or assumed or incurred or agreed to assume or incur
any material liabilities (actual or contingent), or made any
payment not provided for in the Unaudited Combined Results, or
entered into any unusual or onerous transaction or any other
transaction not in the ordinary course of trading (and for these
purposes, the incurring of capital expenditure in excess of Pound
Sterling20,000, on any individual item or in the aggregate, will
be considered other than in the ordinary course of trading);
5.1.4 not declared, made or paid any dividend, bonus or other
distribution of capital or income (whether a qualifying
distribution or otherwise) and (excluding fluctuations in
overdrawn current accounts with bankers) no loan or loan capital
of the Company has been repaid in whole or in part or has become
due or is liable to be declared due for any reason;
5.1.5 not created, allotted, issued, redeemed or cancelled (or entered
into any agreement to do so) any shares or other securities;
5.1.6 not carried out or entered into any transaction and no other
event has occurred in consequence of which (whether alone or
together with any one or more transactions or events occurring
before, on or after the date of this Agreement) any liability of
the Company to Taxation has arisen or will arise (or would have
arisen or would or might arise but for the availability of any
relief, allowance, deduction or credit) other than corporation
tax on the actual income (not chargeable gains or deemed income)
of the Company arising from transactions entered into in the
ordinary course of business, income tax under the PAYE system and
national insurance and social security contributions in respect
of persons employed by it since the Accounts Date and VAT in
respect of taxable supplies made by it in the ordinary course of
business since the Accounts Date;
5.1.7 not made any change to the remuneration, terms of employment,
emoluments or pension benefits of any present or former director,
officer or employee of the Company who on the Accounts Date was
entitled to remuneration in excess of Pound Sterling25,000 per
annum and has not appointed or employed any additional director,
officer or employee who is so entitled;
5.1.8 received payment in full on their due dates of all debts owing to
the Company shown in the Unaudited Combined Results (subject to
any provision for bad and doubtful debts made in the Unaudited
Combined Results), has not released any debts in whole or in part
and has not written off debts in an amount exceeding Pound
Sterling10,000 in the aggregate;
5.1.9 not entered into contracts involving capital expenditure in an
amount exceeding Pound Sterling20,000 in the aggregate;
5.1.10 has not modified or terminated any agreement relating to
Intellectual Property or knowingly allowed any of its right
relating to Intellectual Property to lapse;
5.1.11 in relation to any of the Properties:
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(i) has made no alteration, addition or change of use;
(ii) has not been refused any application for planning
permission;
(iii) has not given notice to terminate any lease, tenancy or
licence or agreed any new rent or fee payable under any
lease, tenancy or licence;
5.1.12 has not become aware that any event has occurred which would
entitle any third party to terminate any contract or any benefit
enjoyed by it or call in any money before the normal due date
thereof;
5.1.13 has not purchased stocks in quantities or at prices materially
greater than was the practice of the Company before and on the
Accounts Date;
5.1.14 has paid its creditors within the times accepted by such
creditors and does not have any debts outstanding which are more
than 30 days overdue for payment;
5.1.15 has not created or agreed to create any Encumbrance or entered
into any factoring arrangement, hire-purchase, conditional sale
or credit sale agreement which has not been Disclosed (and there
has been no default by the Company in the performance or
observance of any of the provisions of any such Encumbrance,
arrangement or agreement);
5.1.16 has not given any guarantees or indemnities in respect of any
third party;
5.1.17 has not borrowed or raised any money or taken any financial
facility or renegotiated or received any notice from any banker
that such banker wishes to renegotiate any overdraft facility
available to the Company at the Accounts Date;
5.1.18 has not made any change to its accounting reference date and no
accounting period of the Company has ended since the Accounts
Date;
5.1.19 has made no change to the accounting procedures or principles by
reference to which its accounts are prepared;
5.1.20 has not made a payment or incurred an obligation to make a
payment which will not be deductible in computing trading profits
for the purposes of corporation tax; and
5.1.21 has not passed any resolution whether in general meeting or
otherwise.
5.2 Since the Accounts Date, the Sellers:
5.2.1 have used their best efforts to preserve and retain the goodwill
of the Business and the existing relationships with customers and
suppliers;
5.2.2 have not induced or endeavoured to induce (whether directly or
indirectly) any employee or worker of the Company to terminate
his employment.
6. TRANSACTIONS WITH THE SELLERS, DIRECTORS AND CONNECTED PERSONS
6.1 LOANS AND DEBTS
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There is not outstanding:
6.1.1 any indebtedness or other liability (actual or contingent) owing
by the Company to any Seller, director or employee of the Company
or any Connected Person or owing to the Company by any Seller,
director or employee of the Company or any Connected Person; or
6.1.2 any guarantee or security for any such indebtedness or liability.
6.2 ARRANGEMENTS WITH CONNECTED PERSONS
6.2.1 There is not outstanding, and there has not at any time during
the last 3 years been outstanding, any agreement, arrangement or
understanding (whether legally enforceable or not) to which the
Company is a party and in which any Seller, director or former
director of the Company or any Connected Person is or has been
interested whether directly or indirectly.
6.2.2 The Company is not a party to nor have its profits or financial
position been affected by any agreement or arrangement which is
not entirely of an arm's length nature.
6.3 COMPETITIVE INTERESTS
6.3.1 No Seller, director or former director of the Company nor any
Connected Person, either individually or with any other person or
persons, has any estate, right or interest, directly or
indirectly, in any business other than that now carried on by the
Company which is or, so far as the Principal Sellers are aware,
is likely to become competitive with any aspect of the Business
of the Company save as registered holder or other owner of any
class of securities of any company if such class of securities is
listed on any recognised investment exchange (as defined in the
Financial Services and Markets Act 2000) and if such person
(together with Connected Persons and Affiliates) holds or is
otherwise interested in less than three per cent of such class of
securities.
6.3.2 The Sellers either individually, collectively or with any other
person or persons, are not interested in any way whatsoever in
any Intellectual Property used and not wholly owned by the
Company and have no (and have not asserted any, and do not have
grounds to assert any) right, title or interest in or to any
Intellectual Property wholly owned by the Company.
6.4 BENEFITS
No Connected Person is entitled to or has claimed entitlement to any
remuneration, compensation or other benefit from the Company.
7. FINANCE
7.1 BORROWINGS
Particulars of all money borrowed by the Company have been Disclosed.
The total amount borrowed by the Company from any source does not exceed
any limitation on its borrowing contained in the articles of association
of the Company or in any debenture or loan stock trust deed or
instrument or any other document binding on the Company
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and the amount borrowed by the Company from each of its bankers does not
exceed the overdraft facility agreed with such banker. The Company has
no outstanding loan capital.
7.2 DEBTS OWED TO THE COMPANY
Except for allowances for bad debts reflected in the Unaudited Combined
Results, all debts owed to the Company are collectable in the ordinary
course of business and so far as the Principal Sellers are aware without
having made enquiry of any creditors each such debt will realise in full
its face value within four months of its due date for payment. The
Company does not own the benefit of any debt (whether present or future)
other than debts which have accrued to it in the ordinary course of
business.
7.3 BANK ACCOUNTS
Particulars of the balances on all the Company's bank accounts as at the
Business Day immediately preceding the Completion Date have been
Disclosed and the Company has no other bank accounts. Since the date of
such particulars there have been no payments out of any such bank
accounts except for routine payments which have been Disclosed.
7.4 WORKING CAPITAL
Having regard to its existing banking and other facilities, the Company
has sufficient working capital for the purpose of continuing to carry on
the Business as currently carried out and at its present level of
turnover for the foreseeable future and for the purposes of executing,
carrying out and fulfilling in accordance with their terms all orders,
projects and contractual obligations which have been placed with or
undertaken by the Company.
7.5 FINANCIAL FACILITIES
The Principal Sellers have Disclosed full details and true and correct
copies of all documents relating to all debentures, acceptance lines,
overdrafts, loans or other financial facilities outstanding or available
to the Company and all Encumbrances to which any asset of the Company is
subject. Neither the Sellers nor the Company have done anything whereby
the continuance of any such facility or Encumbrance in full force and
effect might be affected or prejudiced.
7.6 GRANTS
Full details of all grants made to the Company since incorporation, and
all outstanding applications for any such grant, have been Disclosed. No
act or transaction has been effected in consequence of which the Company
is or could be held liable to refund (in whole or in part) any such
grant or any loan received by virtue of any statute, or in consequence
of which any such grant or loan for which application has been made by
it will not or may not be paid or will or may be reduced.
7.7 OPTIONS AND GUARANTEES
7.7.1 The Company is not responsible for the indebtedness of any
other person nor party to any option or pre-emption right or any
guarantee, suretyship or any other obligation (whatever called)
to pay, purchase or provide funds for the
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payment of, or as an indemnity against the consequence of default
in the payment of, any indebtedness of any other person.
7.7.2 No person other than the Company or a Subsidiary has given any
guarantee of or security for any overdraft, loan or loan facility
granted to the Company or any Subsidiary.
8. UK ENVIRONMENT
In this paragraph 8, a reference to the Company shall be deemed to
include a separate and additional reference to the UK Subsidiary, but
not to the US Subsidiary.
In this paragraph 8:
"ENVIRONMENT" means any and all organisms (including man), ecosystems,
property and the following media: air (including the air within
buildings and the air within other natural or man-made structures,
whether above or below ground); water (including water under or within
land or in drains or sewers and coastal and inland waters); and land
(including land under water);
"ENVIRONMENT AGREEMENTS" means any and all leases or licences or other
agreements (including agreements of the nature referred to at paragraph
44 of Chapter IV of the draft statutory Guidance to Part IIA of the
Environment Protection Act 1990) which are binding on the Company but
only to the extent that they relate, either wholly or in part, to the
protection of the Environment and/or the prevention of Harm and/or
Remediation Action;
"ENVIRONMENT LAWS" means any and all laws, whether civil, criminal or
administrative applicable to the Company any Property and/or conduct of
the Business and which have as a purpose or effect the protection of the
Environment and/or the prevention of Harm and/or the provision of
remedies in respect of Harm, including: European Community or European
Union regulations, directives, decisions and recommendations; statutes
and subordinate legislation; regulations, orders and ordinances;
Permits; Environment Agreements; codes of practice, circulars, guidance
notes and the like; common law, local laws and bye-laws; and judgments,
notices, orders, directions, instructions or awards of any Competent
Authority;
"ENVIRONMENT LIABILITY" means liability (including liability in respect
of Remediation Action) on the part of the Company and/or any of its
directors or officers or shareholders under Environment Laws;
"HARM" means material harm or damage to, or other interference with, the
Environment and includes any detrimental effects on the health of living
organisms or other interference with the ecosystems of which they form
part and, in the case of man, includes offence caused to any of his
senses or harm or damage to his property;
"HAZARDOUS MATTER" means any and all matter (whether alone or in
combination with other matter) including electricity, heat, vibration,
noise or other vibration which is liable to cause Harm;
"OTHER PROPERTY" means any and all land or property, other than any
Property, owned or occupied at any time by the Company since its
incorporation;
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"PERMITS" means any and all licences, consents, permits, registrations,
filings, exemptions, approvals, authorisations or the like, made or
issued pursuant to or under, or required by, Environment Laws in
relation to the carrying on of the Business at any Property and/or the
Other Property;
"REMEDIATION ACTION" means (i) preventing, limiting, removing,
remedying, cleaning-up, abating or containing the presence or effect of
any Hazardous Matter in the Environment (including the Environment at
any Property and/or at the Other Property) or (ii) carrying out
investigative work and obtaining legal and other professional advice as
is reasonably required in relation to (i).
8.1 COMPLIANCE WITH ENVIRONMENT LAWS
8.1.1 Each Property has been used, and the Business has been conducted,
at all times whilst the Company has owned or been in occupation
of such property, in compliance with Environment Laws.
8.1.2 As far as the Principal Sellers are aware, the Property and the
Other Property were used at all times prior to the date of
ownership or occupation by the Company in compliance with
Environmental Laws.
8.1.3 No material work, repairs, remedy, construction, or capital
expenditure is or may be required under any Environment Laws or
in order to carry on lawfully the Business at any Property
and/or, so far as the Principal Sellers are aware, the Other
Property.
8.2 PERMITS
8.2.1 All Permits have been obtained and have been disclosed to the
Purchaser and are in full force and effect and their terms and
conditions have been complied with. No Permits are limited in
duration or subject to onerous conditions.
8.2.2 So far as the Principal Sellers are aware, no circumstance exists
which is liable to result in modification, suspension, or
revocation of any Permit or is likely to result in any such
Permit not being extended, renewed, granted or (where necessary)
transferred.
8.3 HAZARDOUS MATTER
8.3.1 During the period of occupation or ownership by the Company, or,
so far as the Principal Sellers are aware, at any period prior to
the Company's occupation or ownership, no Hazardous Matter has
been generated, used, kept, treated, transported (including
transportation in pipes and pipeworks), spilled, deposited,
disposed of, discharged, emitted or otherwise dealt with or
managed at, on, under or from any Property and/or, so far as the
Principal Sellers are aware, the Other Property.
8.3.2 During the period of occupation or ownership by the Company,
none of the following has been introduced onto or caused to
exist at any of the Properties and/or, so far as the Principal
Sellers are aware, the Other Property: (1) asbestos-containing
material in any form or condition, (2) materials or equipment
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containing polychlorinated biphenyls, or (3) landfills, surface
impoundments, or disposal areas.
8.4 ENVIRONMENT STATES OF AFFAIRS
8.4.1 During the period of occupation or ownership by the Company, no
events, states of affairs, conditions, circumstances, activities,
practices, incidents, or actions have occurred under or about any
Property or, so far as the Principal Sellers are aware, the Other
Property or in or about the conduct of the Business by the
Company which are liable to give rise to Environment Liability
and, so far as the Principal Sellers are aware, no events, states
of affairs, conditions, circumstances, activities, practices,
incidents or actions are occurring or in existence under or about
any Property or Other Property relating to a time prior to the
occupation or ownership by the Company which are liable to give
rise to Environmental Liability.
8.4.2 The Company has not, either expressly or by operation of law,
assumed or undertaken any Environment Liability of any third
party.
8.5 STORAGE TANKS
During the period of occupation or ownership by the Company no storage
tanks of any kind, including related pipework, are or have been located
on or under any Property and/or the Other Property. As far as the
Principal Sellers are aware no such storage tanks or pipeworks were
located on or under any Property or Other Property at anytime prior to
the date of the Company's ownership or occupation.
8.6 NOTICE OF CLAIMS
At no time has any Seller or the Company had knowledge of or received
any notice, claim, demand or other communication alleging any actual or
potential Environment Liability.
8.7 CONTINUED COMPLIANCE
No facts, events or conditions relating to the present (or, so far as
the Principal Sellers are aware, the past) facilities, properties or
operations of the Company or, so far as the Principal Sellers are aware,
any of the Company's predecessors in title, will prevent, hinder or
limit continued compliance with Environmental Laws give rise to any
investigatory, remedial or corrective obligations pursuant to
Environmental Laws, or give rise to any other liabilities (whether
accrued, absolute, contingent, unliquidated or otherwise) pursuant to
Environmental Laws including without limitation any relating to onsite
or offsite releases or threatened releases of hazardous materials,
substances or wastes, personal injury, property damage or natural
resources damage.
9. UK HEALTH AND SAFETY
In this paragraph 9, a reference to the Company shall be deemed to
include a separate and additional reference to the UK Subsidiary, but
not to the US Subsidiary.
9.1 COMPLIANCE
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The Business has at all times been conducted in compliance with all
applicable legislation concerning health and safety matters and all and
any regulations or orders made or issued under any such legislation and
any relevant codes of practice issued by government agencies (the
"Health and Safety Legislation").
9.2 LIABILITIES
There are no events, states of affairs, conditions, circumstances,
activities, practices, incidents or actions which have occurred and have
not been remedied or are occurring or have been or are in existence in
connection with the conduct of the Business which are liable to give
rise to liability under the Health and Safety Legislation.
9.3 PROPERTIES
No works, repairs, construction, remedial action or expenditure is or
may be required in relation to the Health and Safety Legislation in
order to carry on lawfully the Business at any Property.
9.4 CLAIMS
At no time have the Sellers or the Company had knowledge of and/or
received any notice, claim or other communication alleging any
contravention of or actual or potential liability under the Health and
Safety Legislation.
10. US ENVIRONMENT
This paragraph 10 shall apply to and in respect of the US Subsidiary,
but not the Company or the UK Subsidiary.
10.1 In this paragraph 10: (a) "Environmental, Health, and Safety
Requirements" shall mean all US federal, state, local and foreign
statutes, regulations, ordinances and other provisions having the force
or effect of law, all judicial and administrative orders and
determinations, all contractual obligations and all applicable common
law concerning public health and safety, worker health and safety, and
pollution or protection of the environment, including without limitation
all those relating to the presence, use, production, generation,
handling, transportation, treatment, storage, disposal, distribution,
labelling, testing, processing, discharge, release, threatened release,
control, or cleanup of any hazardous materials, substances or wastes,
chemical substances or mixtures, pesticides, pollutants, contaminants,
toxic chemicals, petroleum products or byproducts, asbestos,
polychlorinated biphenyls, noise or radiation, each as amended and as
now or hereafter in effect; and (b) "Affiliates" shall have the meaning
ascribed thereto in paragraph 19.2.1.
10.2 The US Subsidiary and its Affiliates have complied and are in compliance
with all Environmental, Health, and Safety Requirements. Without
limiting the generality of the foregoing, the US Subsidiary and its
Affiliates have obtained and complied with, and are in compliance with,
all permits, licenses and other authorisations that are required
pursuant to Environmental, Health, and Safety Requirements for the
occupation of their respective facilities and the operation of their
respective businesses. A true and complete list of all such permits,
licenses and other authorisations is included in the Disclosure
Documents.
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10.3 Neither the US Subsidiary nor any of its Affiliates or, so far as the
Principal Sellers are aware, any of the US Subsidiary's predecessors in
title has received any written or oral notice, report or other
information regarding any actual or alleged violation of Environmental,
Health, and Safety Requirements, or any liabilities or potential
liabilities (whether accrued, absolute, contingent, unliquidated or
otherwise), including any investigatory, remedial or corrective
obligations, relating to any of them or their respective facilities,
arising under Environmental, Health, and Safety Requirements.
10.4 At no time during the period of occupation or ownership by the Company
or, so far as the Principal Sellers are aware, at any time prior to the
Company's ownership or occupation have any of the following existed at
any property or facility owned or operated by the US Subsidiary or any
of its Affiliates: (1) underground storage tanks, (2)
asbestos-containing material in any form or condition, (3) materials or
equipment containing polychlorinated biphenyls, or (4) landfills,
surface impoundments, or disposal areas.
10.5 Neither this Agreement nor the consummation of the transactions
contemplated by this Agreement will result in any obligations for site
investigation or cleanup, or notification to or consent of government
agencies or third parties, pursuant to any Environmental, Health, and
Safety Requirements.
10.6 Neither the US Subsidiary nor any of its Affiliates or, so far as the
Principal Sellers are aware, any of the US Subsidiary's predecessors in
title has either expressly or by operation of law, assumed or undertaken
any liability, including without limitation any obligation for
corrective or remedial action, of any other person relating to
Environmental, Health, and Safety Requirements.
10.7 No facts, events or conditions relating to the present (or, so far as
the Principal Sellers are aware, the past) facilities, properties or
operations of the US Subsidiary or any of its Affiliates or, so far as
the Principal Sellers are aware, any of the US Subsidiary's predecessors
in title, will prevent, hinder or limit continued compliance with
Environmental, Health, and Safety Requirements, give rise to any
investigatory, remedial or corrective obligations pursuant to
Environmental, Health, and Safety Requirements, or give rise to any
other liabilities (whether accrued, absolute, contingent, unliquidated
or otherwise) pursuant to Environmental, Health, and Safety
Requirements, including without limitation any relating to onsite or
offsite releases or threatened releases of hazardous materials,
substances or wastes, personal injury, property damage or natural
resources damage.
11. OTHER ASSETS
11.1 TITLE
11.1.1 The Company has legal and beneficial title (free from any
Encumbrance, hire or hire purchase agreement or leasing agreement
or agreement for payment on deferred terms) to all assets of the
Company which:
(a) are included in the Unaudited Combined Results; or
(b) have otherwise been represented as being the property of
the Company; or
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(c) were at the Accounts Date used or held for the purposes of
its business; or
(d) have been acquired by the Company since the Accounts Date
and all such assets are in the possession and control of the
Company and are situated within the United Kingdom.
11.1.2 The Company has not acquired or agreed to acquire any material
asset on terms that title does not pass to the Company until full
payment is made.
11.2 CONDITION OF ASSETS
The fixtures, furniture, equipment and vehicles shown in the Unaudited
Combined Results or acquired since the Accounts Date or otherwise used
in connection with the Business which have not been disposed of in the
ordinary course of business:
11.2.1 do not contravene any requirement or restriction having the force
of law;
11.2.2 are in satisfactory repair and condition having regard to their
age and are maintained;
11.2.3 are each capable of doing the work for which they were designed
and/or purchased and so far as the Principal Sellers are aware
will each be so capable (subject to fair wear and tear) during
the period of time over which the value of such assets will be
written down to nil in the accounts of the Company;
11.2.4 are not surplus to the Company's requirements; and
11.2.5 are not dangerous or in need of renewal or replacement,
and the vehicles owned by the Company are road-worthy and duly licensed
for the purposes for which they are used.
11.3 CONDITION OF STOCK
The Company's stock-in-trade is in good condition and is capable of
being sold by the Company in the ordinary course of business in
accordance with its current price list without rebate or allowance to a
purchaser.
11.4 RENTAL PAYMENTS
Rentals payable by the Company under any leasing, hire-purchase or other
similar agreement to which it is a party are set out in the Disclosure
Documents and have not been and are, so far as the Principal Sellers are
aware, not likely to be increased and all such rentals are fully
deductible by the Company for tax purposes.
12. INSURANCE
12.1 EXTENT OF INSURANCE
All the assets of the Company which are of an insurable nature are fully
insured to their full replacement value with a well established and
reputable insurer against fire and all
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other risks normally insured against by companies carrying on similar
businesses or owning property of a similar nature to those of the
Company and the Company is and has at all material times been adequately
covered against all legal liability and risks normally insured against
by such companies (including liability to employees or third parties for
personal injury or loss or damage to property, product liability and
loss of profit).
12.2 PREMIUMS AND CLAIMS
Particulars of all policies of insurance of the Company now in force
have been Disclosed and such particulars are true and correct and all
premiums due on such policies have been duly paid and all such policies
are valid and in force. So far as the Principal Sellers are aware there
are no circumstances which might lead to any liability under such
insurance being avoided by the insurers or the premiums being increased.
There is no claim outstanding under any such policies and so far as the
Principal Sellers are aware there are no circumstances likely to give
rise to a claim.
13. LITIGATION
13.1 LITIGATION
13.1.1 Except as plaintiff in the collection of debts (not exceeding
Pound Sterling10,000 in the aggregate) arising in the ordinary
course of trading, the Company is not now engaged in any
Litigation, and so far as the Principal Sellers are aware no
Litigation is in prospect, in either case by or against the
Company, or any person for whose acts or defaults the Company may
be vicariously liable.
13.1.2 The Company has not, in the last five years preceding the date of
this Agreement, been involved in any Litigation with any person
who is or was a supplier or customer of importance to the Company
or the Business, or where such Litigation resulted in adverse
publicity or loss of goodwill.
13.1.3 So far as the Principal Sellers are aware there is no matter or
fact in existence which might give rise to any Litigation
involving the Company including any which might form the basis of
any criminal prosecution against the Company.
13.2 INJUNCTIONS, ETC
No injunction or order for specific performance has ever been granted
against the Company.
13.3 ORDERS AND JUDGMENTS
The Company is not subject to any order or judgment given by any court,
tribunal or governmental agency which is still in force and has not
given any undertaking to any court or tribunal or to any third party
arising out of any Litigation.
14. LICENCES
14.1 GENERAL
The Company has all necessary licences (including statutory licences),
permits, consents and authorities (public and private) for the proper
and effective carrying on of the
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Business in the manner in which the Business is now carried on and all
such licences, permits, consents and authorities are valid and
subsisting and the Sellers know of no reason why any of them should be
suspended, cancelled or revoked whether in connection with the sale to
the Purchaser or otherwise and, so far as the Sellers are aware, there
are no factors that might in any way prejudice the continuance or
renewal of any of those licences, permits, consents or authorities and
the Company is not restricted by contract from carrying on any activity
in any part of the world.
14.2 DATA PROTECTION XXX 0000
The Company and its employees have complied in all respects with the
requirements of the Data Protection Acts 1984 and 1998.
15. TRADING
15.1 TENDERS, ETC
No offer, tender or the like is outstanding (the value of which to the
Company could exceed Pound Sterling20,000 in any year) which is capable
of being converted into an obligation of the Company by an acceptance or
other act of some other person.
15.2 DELEGATION OF POWERS
Other than as Disclosed, there are in force no powers of attorney given
by the Company nor any other authority (express, implied or ostensible)
given by the Company to any person to enter into any contract or
commitment or do anything on its behalf other than any authority of
employees to enter into routine trading contracts in the normal course
of their duties.
15.3 CONSEQUENCE OF ACQUISITION OF SHARES BY PURCHASER
Nothing done in compliance with the terms of this Agreement (including
the acquisition of the Shares by the Purchaser) and no change in the
management of the Company will:
15.3.1 cause the Company to lose the benefit of any right or privilege
it presently enjoys or, so far as the Principal Sellers are
aware, cause any person who normally does business with the
Company not to continue to do so on the same basis as previously;
15.3.2 relieve any person of any obligation to the Company (whether
contractual or otherwise) or legally entitle any person to
determine any such obligation or any right or benefit enjoyed by
the Company or to exercise any right whether under an agreement
with or otherwise in respect of the Company;
15.3.3 conflict with or result in the breach of or constitute a default
under on the part of the Company (i) under any of the terms,
conditions or provisions of any agreement or instrument to which
it is now a party; or any loan to or mortgage created by it; or
(ii) of its memorandum or articles of association;
15.3.4 result in any present or future indebtedness of the Company
becoming due and payable or capable of being declared due and
payable prior to its stated maturity;
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15.3.5 so far as the Principal Sellers are aware, cause any director,
officer or senior employee of the Company to leave employment; or
15.3.6 conflict with, violate or result in a breach of any law,
regulation, order, decree or writ applicable to the Company, the
Sellers or any of them, or entitle any person to receive from the
Company any finder's fee, brokerage or other commission.
15.4 COMPETITION/ANTI-TRUST
15.4.1 The Company has not been, is not and may not be, party to, or
directly or indirectly concerned, in any agreement, arrangement,
understanding or practice (whether or not legally binding) which
has been, is or may be:
(a) registrable but not properly registered under the
Restrictive Trade Practices Xxx 0000 or capable of giving
rise to an investigation by the Director-General of Fair
Trading or a reference to the Competition Commission;
(b) in contravention or breach of The Treaty of Rome 1957, the
Fair Trading Xxx 0000, the Consumer Credit Xxx 0000, the
Trade Descriptions Xxx 0000, the Restrictive Trade
Practices Xxx 0000, the Competition Xxx 0000, the Consumer
Protection Xxx 0000, the Competition Xxx 0000 or any
notices or directions made under any of them;
(c) otherwise registrable, unenforceable or void or rendering
the Company or any of its officers liable to
administrative, civil or criminal proceedings under any
anti-trust legislation, trade regulation or similar
legislation in any jurisdiction; or
(d) the subject of any investigation by any competent
authority in respect of any provision of any anti-trust
legislation, trade regulation or similar legislation in
any jurisdiction.
15.4.2 The Company has not, is not and may not be, engaged in (whether
on its own or jointly with any other person) any conduct which
amounts to the abuse of a dominant position in a market which may
affect trade (within the meaning of section 18(1) of the
Competition Act 1998) within the United Kingdom or any part of
it.
15.5 RESTRICTIONS ON TRADING
The Company is not and has not been a party to any agreement,
arrangement, understanding or practice restricting the freedom of the
Company to provide and take goods and services by such means and from
and to such persons and into or from such place as it may from time to
time think fit.
15.6 POSSESSION OF RECORDS
15.6.1 All title deeds and agreements to which the Company is a party
and all other documents owned by, or which ought to be in the
possession of or held unconditionally to the order of, the
Company are in the possession of the Company.
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15.6.2 The Company does not have any of its records, systems, controls,
data or information recorded, stored, maintained, operated or
otherwise wholly or partly dependent on or held by any means
(including any electronic, mechanical or photographic process,
whether computerised or not) which (including all means of access
thereto and therefrom) are not under the exclusive ownership and
direct control of the Company.
15.7 BUSINESS NAMES
The Company does not use on its letterhead, books or vehicles or
otherwise carry on the Business under any name other than its corporate
name and in the case of (a) the UK Subsidiary, the name "International
Sorbent Technology Limited"; and (b) the US Subsidiary, the name "Xxxxx
Chromatography Inc.".
15.8 SENSITIVE PAYMENTS
No officer or employee of the Company has made or received any Sensitive
Payment in connection with the Business or otherwise. For the purposes
of this paragraph the expression "Sensitive Payments" (whether or not
illegal) shall include (i) bribes or kickbacks paid to any person, firm
or company including central or local government officials or employees
or (ii) amounts received with an understanding that rebates or refunds
will be made in contravention of the laws of any jurisdiction either
directly or through a third party or (iii) political contributions or
(iv) payments or commitments (whether made in the form of commissions,
payments or fees for goods received or otherwise) made with the
understanding or under circumstances that would indicate that all or
part of the payment is to be paid by the recipient to central or local
government officials or as a commercial bribe, influence payment or
kickback or (v) any payment deemed illegal under the Prevention of
Corruption Acts 1889 to 1916.
16. CONTRACTS
16.1 MATERIAL CONTRACTS
All contracts to which the Company is a party have been Disclosed and
the Company is not a party to or subject to any agreement, transaction,
obligation, commitment, understanding, arrangement or liability which:
16.1.1 is incapable of complete performance in accordance with its terms
within six months after the date on which it was entered into or
undertaken;
16.1.2 is known by any of the Sellers to be likely to result in a loss
to the Company on completion of performance;
16.1.3 cannot readily be fulfilled or performed by the Company on time
and without undue or unusual expenditure of money and effort;
16.1.4 involves or is likely to involve obligations, restrictions,
expenditure or receipts of an unusual, onerous or exceptional
nature and not in the ordinary course of business;
16.1.5 requires an aggregate consideration payable by the Company in
excess of Pound Sterling30,000;
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16.1.6 involves or is likely to involve the supply of goods by or to the
Company the aggregate sales value of which will represent in
excess of five per cent of the turnover of the Company for the
year ended on the Accounts Date;
16.1.7 requires the Company to pay any commission, finder's fee, royalty
or the like; or
16.1.8 is in any way otherwise than in the ordinary and proper course of
the Company's business, or would in any respect reasonably be
regarded as onerous or material by an intending purchaser of the
Shares.
16.2 PERFORMANCE OF CONTRACTS
16.2.1 The terms of all contracts of the Company have been complied with
by the Company and by the other parties to the contracts in all
material respects and there are no circumstances likely to give
rise to a default by the Company or (so far as the Sellers are
aware) by the other parties under any such contract.
16.2.2 All the contracts of the Company except those between the Company
and its employees may be assigned by the Company without the
consent of any other person.
16.2.3 There are no outstanding claims, separately or in the aggregate,
of material amounts, against the Company on the part of customers
or other persons in respect of defects in quality or delays in
delivery or completion of contracts or deficiencies of design or
performance or otherwise relating to liability for goods or
services sold or supplied by the Company and no such claims are
threatened or, so far as the Principal Sellers are aware,
anticipated by any of the Sellers and, so far as the Principal
Sellers are aware, there is no matter or fact in existence in
relation to goods or services currently sold or supplied by the
Company which might give rise to any such claim.
16.2.4 The Sellers have no knowledge of the invalidity of or grounds for
rescission, avoidance or repudiation of any agreement or other
transaction to which the Company is a party and the Company has
received no notice of any intention to terminate, repudiate or
disclaim any such agreement or other transaction.
16.3 AGENCY AND DISTRIBUTION AGREEMENTS
Save as set out in the Disclosure Documents, the Company is not a party
to any subsisting agency or distributorship agreement.
17. EMPLOYEES
In this paragraph 17, references to the Company shall be deemed to
include an additional and separate reference to the UK Subsidiary, but
not to the US Subsidiary.
17.1 PARTICULARS OF EMPLOYEES
The particulars shown in the schedule of employees comprised in the
Disclosure Documents are true and complete and show in respect of each
director, officer and employee of the Company, the date on which he
commenced continuous employment with the Company for the purposes of ERA
and all remuneration payable and other benefits provided or which the
Company is bound to provide (whether now or in the
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future) to each such person and include full particulars of all
remuneration arrangements (particularly profit sharing, incentive, bonus
and severance arrangements to which the Company is a party, whether
legally binding or not) and each director, officer and employee of the
Company is listed there.
17.2 CONTRACTS OF EMPLOYMENT
There is no contract of employment in force between the Company and any
of its directors, officers and employees which is not terminable by the
Company without compensation (other than any compensation payable under
Parts X and XI ERA) on one month's notice given at any time or otherwise
in accordance with section 86 ERA. There are no consultancy or
management services agreements in existence between the Company and any
other person, firm or company, and there are no agreements or other
arrangements (binding or otherwise) between the Company (or any
employers' or trade association of which the Company is a member) and
any Trade Union or works council. There are no outstanding pay
negotiations with any employees, workers or Trade Unions.
17.3 BENEFITS
There are no amounts owing to present or former directors, officers or
employees of the Company other than not more than one month's arrears of
remuneration accrued or due or for reimbursement of business expenses
incurred within a period of three months preceding the date of this
Agreement. No moneys or benefits other than in respect of remuneration
or emoluments of employment are payable to or for the benefit of any
present or former director, officer or employee of the Company, nor any
dependant of any present or former director, officer or employee of the
Company.
17.4 LIABILITIES AND PAYMENTS
Save to the extent (if any) to which provision or allowance has been
made in the Unaudited Combined Results:
17.4.1 no liability has been incurred or is anticipated by the Company
for breach of any contract of employment or contract for services
or for severance payments or for redundancy payments or
protective awards or for compensation for unfair dismissal or for
failure to comply with any order for the reinstatement or
re-engagement of any employee or for sex, race, disability or
discrimination or for any other liability accruing from the
termination or variation of any contract of employment or for
services; no gratuitous payment has been made or promised by the
Company in connection with the actual or proposed termination,
suspension or variation of any contract of employment or contract
for services of any present or former director, officer or
employee or any dependant of any present or former director,
officer or employee of the Company; and
17.4.2 the Company has not made or agreed to make any payment to or
provided or agreed to provide any benefit or change in terms and
conditions of employment for any present or former director,
officer or employee of the Company in connection with the sale
and purchase contemplated by this Agreement.
17.5 RELEVANT LEGISLATION
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17.5.1 The Company has in relation to each of its employees (and so far
as relevant to each of its former employees) complied with:
(a) all obligations imposed on it by all relevant statutes,
regulations and codes of conduct and practice affecting
its employment of any persons and all relevant orders and
awards made thereunder and has maintained current,
adequate and suitable records regarding the service, terms
and conditions of employment of each of its employees; and
(b) all collective agreements, recognition agreements and
customs and practices for the time being affecting its
employees or their conditions of service.
17.5.2 The Company has not been served with any improvement and/or
prohibition notices pursuant to sections 21 and 22 of the Health
and Safety at Work etc Xxx 0000; nor is any prosecution or
sentence pending for any (alleged) offence under that Act.
17.5.3 The Company is not in breach of any of the provisions on the
employment of young persons contained in the Health and Safety
(Young Persons) Regulations 1997, the Children (Protection at
Work) Regulations 1998 or the Working Time Regulations 1998 and
is not presently being prosecuted under any of such provisions.
17.5.4 There is no liability or claim against the Company outstanding or
anticipated under the Equal Pay Xxx 0000, the Sex Discrimination
Acts 1975 and 1986, the Race Relations Xxx 0000, the Disability
Discrimination Xxx 0000, ERA, TUPE, the Social Security
Contributions and Benefits Xxx 0000, TULRCA, the Working Time
Regulations 1998, the National Minimum Wage Xxx 0000, or the
National Minimum Wage Regulations 1999.
17.5.5 Within a period of one year preceding the date of this Agreement,
the Company has not given notice of any redundancies to the
Secretary of State or started consultations with any independent
trade union or workers' representatives under the provisions of
Part IV TULRCA or under TUPE nor has the Company failed to comply
with any such obligation under Part IV TULRCA or under TUPE.
17.6 TERMINATION OF EMPLOYMENT
17.6.1 No present director, officer or employee of the Company has given
or received notice terminating his employment except as expressly
contemplated under this Agreement and Completion of this
Agreement will not entitle any director, officer or employee to
terminate his employment or trigger any entitlement to a
severance payment or liquidated damages.
17.6.2 The Company has complied with all recommendations made by the
Advisory Conciliation and Arbitration Service and with all awards
and declarations made by the Central Arbitration Committee in
respect of its employees.
17.7 SHARE AND OTHER SCHEMES
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The Company does not have in existence nor is it proposing to introduce,
and none of its directors, officers or employees participates in
(whether or not established by the Company), any employee share trust,
share incentive scheme, share option scheme or profit sharing scheme for
the benefit of all or any of its present or former directors, officers
or employees or the dependants of any of such persons or any scheme
under which any present or former director, officer or employee of the
Company is entitled to a commission or remuneration of any other sort
calculated by reference to the whole or part of the turnover, profits or
sales of the Company or any other person, firm or company including any
profit related pay scheme.
17.8 DISPUTES AND CLAIMS
17.8.1 No dispute exists or can reasonably be anticipated between the
Company and a material number or category of its employees or any
Trade Union(s) or works council and so far as the Sellers are
aware there are no wage or other claims outstanding against the
Company by any person who is now or has been a director, officer,
employee or worker of the Company.
17.8.2 The Company has not had during the last three years any strike,
work stoppages, slow-down or work-to-rule by its employees or
workers or any lock-out, nor, so far as the Sellers are aware, is
any anticipated, which has caused, or is likely to cause, the
Company to be materially incapable of carrying on its business in
the normal and ordinary course.
17.9 TRANSFER OF UNDERTAKINGS
The Company has not been a party to any relevant transfer as defined in
TUPE nor has the Company failed to comply with any duty to inform and
consult with employees or any Trade Union or workers' representatives
under TUPE within the period of one year preceding the date of this
Agreement.
17.10 AGREEMENTS WITH TRADE UNIONS
The Company is not a party to any agreement or arrangement with or
commitment to any trade unions or staff association nor are any of its
employees members of any trades union or staff association and, so far
as the Sellers are aware, no application for collective bargaining
recognition by a Trade Union is pending in relation to the Company under
Schedule A1 of TULRCA .
18. PENSION SCHEMES
18.1 GENERAL
Particulars of all Pension Schemes have been Disclosed, including true
and complete copies of the following in relation to each Pension
Scheme:-
18.1.1 Trust deeds and rules and all other deeds;
18.1.2 Booklets currently in force and any subsequent announcements to
scheme members;
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18.1.3 Latest finalised actuarial valuation together with any
subsequent valuation in draft and any subsequent written
actuarial advice not included in such valuations;
18.1.4 Details of members, pensioners and deferred pensioners
(including dates of birth, sex, entry and current salary and
pensionable salary and name of employer);
18.1.5 Details of contributions by members and the employer in the
last three years;
18.1.6 List of investments;
18.1.7 Investment agreements;
18.1.8 Scheme accounts and trustee reports for the last three years;
18.1.9 Evidence of Inland Revenue approval;
18.1.10 Contracting-out certificate (if applicable);
18.1.11 SSAP 24 disclosures in the employer's accounts for the last
three years;
18.1.12 Insurance policies and certificates and details of premiums
paid;
18.1.13 Details of ex-gratia pensions and any discretionary increases
in benefits given in the last three years;
18.1.14 Details of arrangements for the selection of trustees in
accordance with sections 16 to 21 Pensions Act 1995 including
copies of notices to members;
18.1.15 Statement of investment principles prepared in accordance with
section 35 Xxxxxxxx Xxx 0000;
18.1.16 Any correspondence with the Occupational Pensions Regulatory
Authority in relation to the Pension Scheme;
18.1.17 All letters or agreements for the appointment of professional
advisers pursuant to section 47 Xxxxxxxx Xxx 0000;
18.1.18 any actuarial certificates pursuant to section 67 Pensions Xxx
0000.
Other than as Disclosed, there are no other Pension Schemes for current
or past directors or employees of the Company.
18.2 BENEFITS, DISCRETIONS AND FUNDING
In relation to each Pension Scheme:-
18.2.1 no power to augment benefits has been exercised;
18.2.2 no discretion has been exercised to admit an employee to
membership of the pension scheme who would not otherwise be
eligible;
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18.2.3 no discretion has been exercised to provide a benefit which
would not otherwise be provided;
18.2.4 all benefits (other than a refund of contributions with
interest where appropriate) payable under the pension scheme on
the death of a member while in an employment to which the
pension scheme relates or during a period of sickness or
disability of a member are fully insured by a policy with an
insurance company of good repute; and all premiums have been
paid;
18.2.5 there are no contributions to the Pension Scheme which are due
but unpaid and have remained unpaid for more than one month and
in any event contributions have been paid which are at least
equal to and by the due date specified in any schedule of
contributions or payments applicable under section 58 or 87
Xxxxxxxx Xxx 0000;
18.2.6 no take-over protection provision will be triggered by
Completion;
18.2.7 no payment has been made out of the Pension Scheme to any
participating employer;
18.2.8 no amendment has been made in contravention of section 67 of
the Pensions Xxx 0000;
18.2.9 the Pension Scheme is sufficiently funded on an ongoing basis
using the assumptions used in the last actuarial valuation to
secure at least the benefits accrued to Completion (other than
those which are insured) and in addition is sufficiently funded
to meet the minimum funding requirement as defined in section
56 Xxxxxxxx Xxx 0000;
18.2.10 other than benefits payable on death as disclosed, the Pension
Scheme provides only money purchase benefits within the meaning
of section 000 Xxxxxxx Xxxxxxx Xxx 0000.
18.3 ADMINISTRATION
Each Pension Scheme:-
18.3.1 is either approved by the Board of Inland Revenue for the
purposes of Chapter I of Part XIV TAXES ACT 88 or is a scheme
under which the benefits provided or to be provided are
consistent with the approval of the scheme by the Board of Inland
Revenue for such purposes and is a scheme in respect of which an
application for such approval has been made and has not been
withdrawn or refused and the Board of Inland Revenue have not
given notice to the applicant that they believe the application
has been dropped;
18.3.2 is established under irrevocable trusts;
18.3.3 has been administered in accordance with:-
the preservation requirements under the Xxxxxxx Xxxxxxx Xxx 0000;
the equal access requirements of that Act;
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the contracting-out requirements of that Act (where applicable);
the Pensions Xxx 0000; and
all other applicable laws (including Article 119 of the Treaty of
Rome), regulations and requirements of any competent governmental
body or regulatory authority and the trusts and rules of the
Pension Scheme;
18.3.4 has not been the subject of any report of wrongdoing or
irregularities to the Occupational Pensions Regulatory Authority
nor, so far as the Sellers are aware, are there any circumstances
which would justify such a report;
18.3.5 is a scheme in respect of which all actuarial, consultancy, legal
and other fees, charges or expenses have been paid and for which
no services have been provided for which an account or invoice
has not been rendered; and
18.3.6 has no investment in employer-related assets as defined in
section 40 Xxxxxxxx Xxx 0000.
18.4 CLAIMS
No claim has been threatened or made or litigation commenced against the
trustees or administrator of any Pension Scheme or against the Company
or any other person whom the Company is or may be liable to indemnify or
compensate in respect of any matter arising out of or in connection with
any Pension Scheme. So far as the Sellers are aware, there are no
circumstances which may give rise to any such claim or litigation. There
are no unresolved disputes under the Pension Scheme's internal dispute
resolution procedure.
19. US EMPLOYEES
This paragraph 19 shall apply to and in respect of the US Subsidiary,
but not the Company or the UK Subsidiary.
19.1 To the best of the knowledge of the Principal Sellers, and of the
directors and officers (and employees with responsibility for employment
matters) of the Company and the US Subsidiary but without having made
enquiries of the employees concerned, no executive, key employee, or
group of employees has any plans to terminate employment with the US
Subsidiary.
19.2 DEFINITIONS
With the exception of the definition of "Affiliate" set forth below
(which definition shall apply only to this paragraph 19) for purposes of
this Agreement, the following terms shall have the meanings set forth
below:
19.2.1 "AFFILIATE" shall mean any other person or entity under common
control with the US Subsidiary within the meaning of Section
414(b), (c), (m) or (o) of the United States Internal Revenue
Code of 1986, as amended and the regulations issued thereunder
(the "CODE");
19.2.2 "COBRA" shall mean the United States Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended;
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19.2.3 "EMPLOYEE PLAN" shall mean any plan, program, policy, practice,
contract, agreement or other arrangement providing for
compensation, severance, termination pay, deferred compensation,
performance awards, stock or stock-related awards, fringe
benefits or other employee benefits or remuneration of any kind,
whether written or unwritten or otherwise, funded or unfunded,
including without limitation, each "employee benefit plan,"
within the meaning of Section 3(3) of ERISA which is or has been
maintained, contributed to, or required to be contributed to, by
the US Subsidiary or any Affiliate for the benefit of any
Employee, or with respect to which the US Subsidiary or any
Affiliate has or may have any liability or obligation;
19.2.4 "DOL" shall mean the United States Department of Labor;
19.2.5 "EMPLOYEE" shall mean any current or former or retired employee,
consultant or director of the US Subsidiary;
19.2.6 "EMPLOYMENT AGREEMENT" shall mean each management, employment,
severance, consulting, relocation, repatriation, expatriation,
visas, work permit or other agreement, contract or understanding
between the US Subsidiary and any Employee;
19.2.7 "ERISA" shall mean the United States Employee Retirement Income
Security Act of 1974, as amended;
19.2.8 "FMLA" shall mean the United States Family Medical Leave Act of
1993, as amended;
19.2.9 "IRS" shall mean the United States Internal Revenue Service;
19.2.10"MULTIEMPLOYER PLAN" shall mean any "Pension Plan" (as defined
below) which is a "multiemployer plan," as defined in Section
3(37) of ERISA;
19.2.11"PENSION PLAN" shall mean each Employee Plan which is an
"employee pension benefit plan," within the meaning of Section
3(2) of ERISA.
19.3 The Disclosure Documents contain an accurate and complete list of each
Employee Plan, and each Employment Agreement. The US Subsidiary does not
have any plan or commitment to establish any new Employee Plan or enter
into any new Employment Agreement, or to modify any Employee Plan or
Employment Agreement (except to the extent required by law or to conform
any Employee Plan or Employment Agreement to the requirements of any
applicable law, in each case as previously disclosed to the Purchaser in
writing, or as required by this Agreement), or to adopt or enter into
any Employee Plan or Employment Agreement.
19.4 The Disclosure Documents include correct and complete copies of: (i) all
documents embodying each Employee Plan and each Employment Agreement
including (without limitation) all amendments thereto and all related
trust documents, administrative service agreements, group annuity
contracts, group insurance contracts, and policies pertaining to
fiduciary liability insurance covering the fiduciaries for each Employee
Plan; (ii) the most recent annual actuarial valuations, if any, prepared
for each Employee Plan; (iii) the three (3) most recent annual reports
(Form Series 5500 and all schedules and financial statements attached
thereto), if any, required under ERISA or the Code in connection
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with each Employee Plan; (iv) if the Employee Plan is funded, the most
recent annual and periodic accounting of Employee Plan assets; (v) the
most recent summary plan description together with the summary(ies) of
material modifications thereto, if any, required under ERISA with
respect to each Employee Plan; (vi) all IRS determination, opinion,
notification and advisory letters, and all applications and
correspondence to or from the IRS or the DOL with respect to any such
application or letter; (vii) all communications material to any Employee
or Employees relating to any Employee Plan and any proposed Employee
Plan, in each case, relating to any amendments, terminations,
establishments, increases or decreases in benefits, acceleration of
payments or vesting schedules or other events which would result in any
material liability to the US Subsidiary; (viii) all correspondence to or
from any governmental agency relating to any Employee Plan; (ix) all
COBRA forms and related notices (or such forms and notices as required
under comparable law); (x) the three (3) most recent plan years
discrimination tests for each Employee Plan; and (xi) all registration
statements, annual reports (Form 11-K and all attachments thereto) and
prospectuses prepared in connection with each Employee Plan.
19.5 The US Subsidiary has performed in all material respects all obligations
required to be performed by it under, is not in default or violation of,
and has no knowledge of any default or violation by any other party to
each Employee Plan, and each Employee Plan has been established and
maintained in all material respects in accordance with its terms and in
compliance with all applicable laws, statutes, orders, rules and
regulations, including but not limited to ERISA or the Code; (ii) each
Employee Plan intended to qualify under Section 401(a) of the Code and
each trust intended to qualify under Section 501(a) of the Code has
either received a favourable determination, opinion, notification or
advisory letter from the IRS with respect to each such Employee Plan as
to its qualified status under the Code, including all amendments to the
Code effected by the Tax Reform Act of 1986 and subsequent legislation,
or has remaining a period of time under applicable Treasury regulations
or IRS pronouncements in which to apply for such a letter and make any
amendments necessary to obtain a favourable determination as to the
qualified status of each such Employee Plan; (iii) no "prohibited
transaction," within the meaning of Section 4975 of the Code or Sections
406 and 407 of ERISA, and not otherwise exempt under Section 4975 of the
Code or Section 408 of ERISA (or any administrative class exemption
issued thereunder), has occurred with respect to any Employee Plan; (iv)
there are no actions, suits or claims pending, or, to the knowledge of
the Sellers, threatened or reasonably anticipated (other than routine
claims for benefits) against any Employee Plan or against the assets of
any Employee Plan; (v) each Employee Plan (other than any stock option
plan) can be amended, terminated or otherwise discontinued after the
Closing Date, without material liability to the Purchaser, or the US
Subsidiary or any of its Affiliates (other than ordinary administration
expenses); (vi) there are no audits, inquiries or proceedings pending
or, to the knowledge of the US Subsidiary or any Affiliates, threatened
by the IRS or DOL with respect to any Employee Plan; and (vii) neither
the US Subsidiary nor any Affiliate is subject to any penalty or tax
with respect to any Employee Plan under Section 502(i) of ERISA or
Sections 4975 through 4980 of the Code.
19.6 Neither the US Subsidiary nor any Affiliate has ever maintained,
established, sponsored, participated in, or contributed to, any Pension
Plan which is subject to Title IV of ERISA or Section 412 of the Code.
19.7 At no time has the US Subsidiary or any Affiliate contributed to or been
obligated to contribute to any Multiemployer Plan. Neither the US
Subsidiary, nor any Affiliate has at
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any time ever maintained, established, sponsored, participated in, or
contributed to any multiple employer plan, or to any plan described in
Section 413 of the Code.
19.8 No Employee Plan provides, or reflects or represents any liability to
provide retiree health to any person for any reason, except as may be
required by COBRA or other applicable statute, and the US Subsidiary has
never represented, promised or contracted (whether in oral or written
form) to any Employee (either individually or to Employees as a group)
or any other person that such Employee(s) or other person would be
provided with retiree health, except to the extent required by statute.
19.9 Neither the US Subsidiary nor any Affiliate has, in any material
respect, violated any of the health care continuation requirements of
COBRA, the requirements of FMLA, the requirements of the Health
Insurance Portability and Accountability Act of 1996, the requirements
of the Women's Health and Cancer Rights Act of 1998, the requirements of
the Newborns' and Mothers' Health Protection Act of 1996, or any
amendment to each such act, or any similar provisions of state law
applicable to its Employees.
19.10 The execution of this Agreement and the consummation of the transactions
contemplated hereby will not (either alone or upon the occurrence of any
additional or subsequent events) constitute an event under any Employee
Plan, Employment Agreement, trust or loan that will or may result in any
payment (whether of severance pay or otherwise), acceleration,
forgiveness of indebtedness, vesting, distribution, increase in benefits
or obligation to fund benefits with respect to any Employee.
19.11 No payment or benefit which will or may be made by the US Subsidiary or
its Affiliates with respect to any Employee or any other "disqualified
individual" (as defined in Code Section 280G and the regulations
thereunder) will be characterised as a "parachute payment," within the
meaning of Section 280G(b)(2) of the Code.
19.12 The US Subsidiary: (i) is in compliance in all respects with all
applicable federal, state and local laws, rules and regulations
respecting employment, employment practices, terms and conditions of
employment and wages and hours, in each case, with respect to Employees;
(ii) is not liable for any arrears of wages or any taxes or any penalty
for failure to comply with laws or agreements regarding withholding and
reporting with respect to wages, salaries and other payments to
Employees; and (iii) is not liable for any payment to any trust or other
fund governed by or maintained by or on behalf of any governmental
authority, with respect to unemployment compensation benefits, social
security or other benefits or obligations for Employees (other than
routine payments to be made in the normal course of business and
consistent with past practice). There are no pending, threatened or
reasonably anticipated claims or actions against the US Subsidiary under
any worker's compensation policy or long-term disability policy.
19.13 No work stoppage or labour strike against the US Subsidiary is pending,
threatened or reasonably anticipated. The US Subsidiary does not know of
any activities or proceedings of any labour union to organise any
Employees. There are no actions, suits, claims, labour disputes or
grievances pending, or, to the knowledge of the Sellers, threatened or
reasonably anticipated relating to any labour, safety or discrimination
matters involving any Employee, including, without limitation, charges
of unfair labour practices or discrimination complaints, which, if
adversely determined, would, individually or in the aggregate, result in
any material liability to the US Subsidiary. Neither the US Subsidiary
nor any of its Affiliates has engaged in any unfair labour practices
within the meaning of the National Labor Relations Act. The US
Subsidiary is
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not presently, nor has it been in the past, a party to, or bound by, any
collective bargaining agreement or union contract with respect to
Employees and no collective bargaining agreement is being negotiated by
the US Subsidiary.
20. INTELLECTUAL PROPERTY
20.1 In this Agreement:
"COPYRIGHT" means copyright, design rights, topography rights and
database rights, whether registered or unregistered (including any
applications for registration of any such thing) and any similar or
analogous rights to any of the above, whether arising or granted under
the law of England or of any other jurisdiction;
"KNOW HOW" means trade secrets and confidential business information,
including details of supply arrangements, customer lists and pricing
policy; sales targets, sales statistics, market share statistics,
marketing surveys and reports; marketing research; other information
including procedures, ideas, concepts, formulae, manufacturing
techniques and processes, specifications and tests; information
comprised in Software; together with all common law or statutory rights
protecting any such thing, including by any action for breach of
confidence and any similar or analogous rights to any of the above,
whether arising or granted under the law of England or any other
jurisdiction;
"INTELLECTUAL PROPERTY" means Patent Rights, Know How, Copyright
(including rights in Software), Trade Marks and IP Materials;
"IP AGREEMENTS" means agreements, arrangements or licences relating to
the Relevant IP;
"IP MATERIALS" means all documents, records, tapes, discs, diskettes and
any other materials whatsoever containing Copyright works, Know How or
Software;
"LICENCES-IN" means IP Agreements whereby the Company uses or exploits
any Intellectual Property belonging to a third party;
"LICENCES-OUT" means IP Agreements whereby the Company has authorised or
otherwise permitted (expressly or by implication) any use whatsoever of
any Intellectual Property, or granted to any third party any right or
interest in respect of any Intellectual Property;
"PATENT RIGHTS" means patent applications or patents, author
certificates, inventor certificates, utility certificates, improvement
patents and models and certificates of addition, including any
divisions, renewals, continuations, refilings, confirmations-in-part,
substitutions, registrations, confirmations, additions, extensions or
reissues of any such thing and any similar or analogous rights to any of
the above, whether arising or granted under the law of England or any
other jurisdiction;
"REGISTERED IP" means the Intellectual Property owned, licensed, used or
exploited by the Company and listed in Schedule 4;
"RELEVANT IP" means all Registered IP and Unregistered IP;
"SOFTWARE" means any and all computer programs in both source and object
code form, including all modules, routines and sub-routines such
programs and all source and other
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preparatory materials relating to them, including user requirements,
functional specifications and programming specifications, ideas,
principles, programming languages, algorithms, flow charts, logic, logic
diagrams, orthographic representations, file structures, coding sheets,
coding and any manuals or other documentation relating to them and
computer generated works;
"TRADE MARKS" means trade or service xxxx applications or registered
trade or service marks, registered protected designations of origin,
registered protected geographic origins, refilings, renewals or reissues
of any of the above, unregistered trade or service marks, get up and
company names in each case with any and all associated goodwill and all
rights or forms of protection of a similar or analogous nature,
including rights which protect goodwill, whether arising or granted
under the law of England or of any other jurisdiction;
"UNREGISTERED IP" means Intellectual Property owned, licensed, used or
exploited by the Company other than Registered IP.
20.2 OWNERSHIP AND RIGHTS
20.2.1 Schedule 4 contains particulars of all Registered IP and material
Unregistered IP.
20.2.2 The Company is the sole beneficial owner of all Relevant IP
(subject to Licences-In and Licences-Out).
20.2.3 The Company does not require any further Intellectual Property in
relation to the current manufacture, marketing, sale or planned
development of its products or services or in relation to any of
the processes employed in the Business.
20.3 ENFORCEMENT
20.3.1 The Relevant IP (insofar as it is owned by the Company) is valid
and subsisting and none of the Registered IP is the subject of
outstanding or, so far as the Principal Sellers are aware,
threatened disputes, claims or proceedings for cancellation,
revocation, opposition, interference, rectification or contested
ownership.
20.3.2 Where an application for registration has been made, the Company
has received no adverse opinion, whether from any registry
concerned or its own advisers, in relation to any such
application.
20.3.3 All Registered IP has been maintained and all renewal fees have
been paid on time.
20.3.4 Except as set out in Schedule 4, all Know-How owned, used or
exploited by the Company has been kept secret and confidential
and has not been disclosed to third parties except in the
ordinary course of business to third parties who have agreed to
keep such know-how secret and confidential.
20.3.5 Nothing has been done to diminish or otherwise affect the
reputation of unregistered Trade Marks owned, used or otherwise
exploited by the Company.
20.4 IP AGREEMENTS
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20.4.1 Complete copies of all the IP Agreements have been Disclosed. All
of the IP Agreements are valid and binding and none has been the
subject of any breach or default by any party or of any event
which with notice or lapse of time or both would constitute a
default. There are no disputes, claims or proceedings arising out
of or relating to any of them.
20.4.2 Schedule 4 respectively contain particulars of all Licences-In
and Licences-Out.
20.4.3 Except as set out in Schedule 4, none of the Relevant IP is
subject to any Encumbrance.
20.4.4 All IP Agreements have been duly recorded or registered with the
proper authorities whenever a requirement to do so exists.
20.5 INFRINGEMENT
20.5.1 The Company has not infringed and does not infringe any
Intellectual Property of a third party as a result of the
Company's use or exploitation of the Relevant IP, nor will such
use or exploitation give rise to any infringement dispute, claims
or proceedings against the Company.
20.5.2 There has been and is no current or anticipated infringement by
any third party of any Relevant IP.
21. INFORMATION TECHNOLOGY AND TELECOMMUNICATIONS
21.1 In this Agreement:
"HARDWARE" means any and all computer, telecommunications and network
equipment and any aspect or asset of a business which relies in any
respect on computer hardware or other information technology (whether
embedded or not);
"IT CONTRACTS" means any agreements, arrangements or licences with third
parties relating to IT Systems or IT Services, including all hire
purchase contracts or leases of Hardware, licences of Software, and
other IT procurement;
"IT SERVICES" means any services relating to the IT Systems or to any
other aspect of the Company's data processing or data transfer
requirements, including facilities management, bureau services, hardware
maintenance, software development or support, consultancy, source code
deposit, recovery and network services;
"IT SYSTEMS" means Hardware and/or Software owned or used by the
Company.
21.2 IDENTIFICATION AND OWNERSHIP
21.2.1 All IT Systems are identified in the Disclosure Documents, and
are not wholly or partly dependent on any facilities or services
not under the exclusive ownership and control of the Company.
21.2.2 All the IT Contracts are valid and binding. None of the IT
Contracts has been the subject of any breach or default, or of
any event which (with notice or lapse of time or both) would
constitute a default, or is liable to be terminated or otherwise
adversely affected by the transaction contemplated by this
Agreement.
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21.2.3 The Company has in its possession or in its control the source
code of all Software owned or used by the Company for the
purposes of the Business.
21.3 COMPUTER OPERATION AND MAINTENANCE
21.3.1 All IT Systems are in good working order, function in accordance
with all applicable specifications, and have been and are being
properly and regularly maintained and replaced. No part of the IT
Systems has materially or consistently failed to function at any
time during the 2 years prior to the date of this Agreement.
21.3.2 All IT Services are being and have been provided in accordance
with all applicable specifications.
21.3.3 The Company has full and unrestricted access to and use of the IT
Systems, and no third party agreements or consents are required
to enable the Company to continue such access and use following
completion of the transaction contemplated by this Agreement.
21.3.4 So far as the Sellers are aware:
(a) it is not necessary or desirable to incur any further
expenditure on the modification, development, expansion or
(save in the normal course of business) replacement of the
IT Systems; and
(b) the present capacity of the IT Systems is sufficient in
order to satisfy the requirements of the Company with
regard to data processing and communications during the
period ending three years from the date of this Agreement.
21.3.5 The Company has taken all steps necessary to ensure that its
business can continue in the event of a failure of the IT Systems
(whether due to natural disaster, power failure or otherwise).
22. LEGISLATION
The Company is not in breach of and has not received notice of and is
not aware of any allegation of breach of the requirements of any
legislation which is applicable to it.
23. INFORMATION
23.1 INFORMATION
The information set out in Schedules 1 to 4 (inclusive) and all
information contained in the Disclosure Documents is complete, true,
full and fair and not misleading. Insofar as any such information
amounts to a forecast or an expression of opinion, intention or
expectation, such information is so far as the Sellers are aware fair
and honest and made on reasonable grounds.
23.2 DISCLOSURE
There is no fact or matter which has not been Disclosed which renders
any such information untrue, inaccurate or misleading in any material
respect or the disclosure of
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which might reasonably affect the willingness of a willing purchaser to
purchase the Shares on the terms of this Agreement.
23.3 FINANCIAL AND TRADING POSITION
The information disclosed to the Purchaser or its representatives or
professional advisers by the Principal Sellers and the directors,
officers, or professional advisers of the Company regarding the current
financial and trading position and prospects of the Company comprises
all information which is material for the reasonable assessment of the
financial and trading prospects of the Company.
24. BROKERS' FEES
The Company has no liability in respect of, or obligation to pay, any
fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement.
25. PRODUCT WARRANTY
Each product manufactured, sold, leased, or delivered by the Company has
been in conformity with all applicable contractual commitments and all
express and implied warranties, and the Company has no liability (and so
far as the Principal Sellers are aware there is no basis for any present
or future action, suit, proceeding, hearing, investigation, charge,
complaint, claim, or demand against any of them giving rise to any
liability) for replacement or repair thereof or other damages in
connection therewith. No product manufactured, sold, leased, or
delivered by the Company is subject to any guaranty, warranty, or other
indemnity beyond the applicable standard terms and conditions of sale or
lease. The Disclosure Documents include copies of the standard terms and
conditions of sale or lease for the Company (containing applicable
guaranty, warranty, and indemnity provisions). The Company has not sold
or leased products other than under those standard terms and conditions
of sale or lease.
26. PRODUCT LIABILITY
The Company has no liability (and so far as the Principal Sellers are
aware there is no basis for any present or future action, suit,
proceeding, hearing, investigation, charge, complaint, claim, or demand
against any of them giving rise to any liability) arising out of any
injury to individuals or property as a result of the ownership,
possession, or use of any product manufactured, sold, leased, or
delivered by the Company.
27. EXPENSES
The Company has not borne and will not bear any of the Sellers' costs
and expenses in connection with this Agreement or any of the
transactions contemplated hereby (including without limitation legal and
accounting fees and expenses).
28. DISCLOSURE
The representations and warranties contained in this Schedule 6 do not
contain any untrue statement of a fact or omit to state any fact
necessary in order to make the statements and information contained in
this Schedule 6 not misleading.
29. PROPERTIES
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29.1 DEFINITIONS
In this Agreement:
"EXISTING USE" means in relation to any Property the purpose(s) referred
to in Schedule 3 in relation to that Property;
"LEASE" means in relation to any Property, if applicable, the lease
under which the Property is held by the Company;
"LETTING DOCUMENTS" means in relation to any Property leases,
underleases, tenancies, licences or other agreements or arrangements
giving rise to rights of occupation (in each case as amended) to which
the Property is subject.
References to a "Property" includes a reference to each of the
Properties, unless the context requires otherwise.
29.2 GENERAL
29.2.1 The Properties comprise all the land owned, controlled, used or
occupied by the Company and all the estates, interests or rights
vested in the Company relating to any land at the date of this
Agreement.
29.2.2 The Company has no liability (whether actual, contingent or
otherwise) as tenant, assignee, guarantor, covenantor or
otherwise arising from or relating to any estate, interest or
right in any land other than the Properties.
29.2.3 The Company has not assigned any lease or tenancy (other than a
lease or tenancy which is a new tenancy as defined in section 28
LTCA and in respect of which the Company has not entered into any
authorised guarantee agreement) without receiving a full and
effective indemnity from the assignee in respect of its liability
under such lease or tenancy.
29.3 TITLE
In relation to each Property:-
29.3.1 The Company has a good and marketable legal title and is solely
legally entitled to it.
29.3.2 The details of the title set out in Schedule 3 are complete and
accurate in all respects.
29.3.3 If the title is registered at HM Land Registry, the Company is
registered with the class of title shown in Schedule 3 and under
the title number referred to in Schedule 3.
29.3.4 Any Letting Documents to which the Property is subject are
referred to in Schedule 3. Otherwise the Company is in actual
occupation of the Property on an exclusive basis and, except by
virtue of the Letting Documents, no person, other than the
Company, has any right (actual or contingent) to possession,
occupation or use of or interest in the Property.
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29.3.5 There are no circumstances which could render any transaction
affecting the Company's title liable to be set aside under the
provisions of the Insolvency Xxx 0000.
29.4 EXISTING USE
The present use is for the purpose(s) referred to in Schedule 3.
29.5 DOCUMENTS OF TITLE
The documents of title consist of original documents or properly
examined abstracts, all of which are in the possession of the Company or
are unconditionally held to its order. Where necessary all title deeds
are fully stamped with ad valorem stamp duty and a produced document
stamp.
29.6 REGISTRATION
Where title is not registered at HM Land Registry, there is no caution
registered against first registration and no event has occurred in
consequence of which such registration of title should have been
effected.
29.7 FIXTURES AND FITTINGS
All fixtures and fittings at the Property other than landlord's/tenant's
fixtures are the property of the Company free from Encumbrances.
29.8 ACCESS
A roadway maintainable at public expense abuts the Property at each
point of access or egress or the Property has the benefit of all
necessary rights of way to and from such a roadway.
29.9 CONSTRUCTION WORK
Details of all construction projects undertaken in the last 6 years have
been Disclosed and, in relation to any such construction:
29.9.1 all necessary consents and permissions were obtained for such
construction;
29.9.2 the construction works were carried out in material compliance
with professional building standards and with the applicable laws
and regulations relating to technical quality of construction;
29.9.3 the Company obtained all mandatory policies of insurance with a
level of cover appropriate to such project and performed all its
obligations under such contracts of insurance, including the
payment of all premiums.
29.10 TITLE POLICIES
There are no insurance policies relating to any question of title or
covenants.
29.11 CHARGES
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There are no mortgages, charges or liens, legal or equitable, specific
or floating.
29.12 AGREEMENTS
There are no agreements for sale or lease, estate contracts, options,
rights of pre-emption or similar matters, the provisions of which remain
to be performed.
29.13 ENCUMBRANCES
There is no breach of any covenants, restrictions, stipulations,
easements or other matters to which the Property is subject.
29.14 ADVERSE RIGHTS
No one is in adverse possession or has acquired or is acquiring any
adverse rights.
29.15 OVERRIDING INTERESTS
There are no overriding interests as referred to in section 70 Land
Registration Xxx 0000.
29.16 COMPLAINTS
The Company has not had occasion to make any claim or complaint in
relation to any neighbouring property or its use or occupation and has
not received any such complaint from any such neighbouring property.
29.17 DISPUTES
There are no disputes, claims, actions, demands or complaints which are
outstanding or which are expected by the Company.
29.18 NOTICES
Neither the Company nor the Sellers have received actual notice of any
resolution, proposal, order or act made or contemplated for the
compulsory acquisition of the Property by the local or any other
authority nor any outstanding order, notice or other requirement of any
such authority that affects the existing use or involves expenditure in
compliance with it nor any other circumstances which may result in any
such order or notice being made or served or which may otherwise affect
the Property.
29.19 CONDITION
No flooding, subsidence, settlement, landslip, heave, rising damp or
damp penetration, fungoid or insect attack or infestation or other
material defect (including a design or construction defect) affects or
has affected the Property and no building or structure contains a
deleterious substance or a substance which, at the date of this
Agreement, is not used in generally accepted good building practice.
There is no material defect in the plumbing, air conditioning, heating
or other parts of the Property which renders such part of the Property
unfit for their intended use.
29.20 OUTGOINGS
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Save as disclosed in the title deeds there is no liability for the
payment of any outgoings or charges other than the uniform business rate
or water rates (and in the case of leasehold property sums due under the
Lease including rent, insurance and service charge reserved by the
Lease) and all such payments have been made to date.
29.21 LAWFUL USE
The Existing Use is a lawful use under the Town and Country Planning
legislation (which includes the Town and Country Planning Xxx 0000, the
Planning (Listed Buildings and Conservation Areas) Xxx 0000 and the
Planning (Hazardous Substances) Act 1990).
29.22 DEVELOPMENT
No development (as defined in the Town and Country Planning legislation)
which has been or is being carried out is unlawful, no development has
been carried out without any necessary consents and permissions being
obtained, no enforcement proceedings under the Town and Country Planning
legislation have been commenced or notices served and no such
proceedings or notices have been proposed.
29.23 VALIDITY OF PERMISSIONS
To the best of the Sellers' knowledge and belief, all planning
permissions received by the Company are valid, subsisting and
unimpeachable and are either unconditional or subject only to conditions
which have been satisfied in full.
29.24 CONDITIONS
All planning permissions are either unconditional or subject only to
conditions which have either been satisfied, so that nothing further
remains to be done under them or, in the case of continuing conditions,
are being complied with and there is no reason why such conditions
should not continue to be so complied with.
29.25 PENDING APPLICATIONS
There is no application for planning permission awaiting determination
and no planning decision or deemed refusal which is subject to appeal.
29.26 PLANNING AGREEMENTS
There is no agreement or planning obligation under section 38 or section
000 Xxxxxxxx Xxx 0000, section 33 Local Government (Miscellaneous
Provisions) Xxx 0000, section 106 Town and Country Xxxxxxxx Xxx 0000,
section 000 Xxxxx Xxxxxxxx Xxx 0000 or any provision in legislation of a
similar nature and the Company is not required to enter into any such
agreement or obligation.
29.27 LISTED BUILDINGS ETC
No building or structure has been listed under section 1 Planning
(Listed Buildings and Conservation Areas) Xxx 0000 nor has the relevant
local authority served or authorised the service of any building
preservation notice under section 3 Planning (Listed Buildings and
Conservation Areas) Xxx 0000 or any repairs notice under section 48
Planning (Listed Buildings and Conservation Areas) Xxx 0000 in respect
of the Property.
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29.28 COMPENSATION POTENTIALLY REPAYABLE
No compensation has been received under the Town and Country Planning
legislation which is potentially repayable under such legislation.
29.29 DESIGNATED AREAS
It is not within an area of archaeological importance nor is any
building or structure a scheduled monument within the meaning set out in
the Ancient Monuments and Xxxxxxxxxxxxxx Xxxxx Xxx 0000.
29.30 STATUTORY REQUIREMENTS
There is no outstanding order, notice or other requirement of any local
or other authority that affects the Existing Use or involves expenditure
in compliance with it nor any other circumstances which may result in
any such order or notice being made or served.
29.31 STATUTORY COMPLIANCE
There is no material breach of the requirements of:-
the Shops Acts 1950 to 1965
the Xxxxxxxxx Xxx 0000
the Offices, Shops and Railway Premises Act 1963
the Fire Precautions Xxx 0000
the Health and Safety at Work, etc Xxx 0000
the Sunday Trading Xxx 0000
the Clean Air Xxx 0000
the Construction (Design and Management Regulations) Xxx 0000
the Control of Pollution Xxx 0000
the Planning (Hazardous Substances) Xxx 0000
and other current or previous legislation or any regulations, orders,
notices or directions made or issued under such legislation capable of
enforcement at the date of this Agreement.
29.32 FIRE CERTIFICATE
Either a fire certificate is not required or a fire certificate covering
the Existing Use is in force and the Property complies in all material
respects with current fire regulations and the current requirements of
the insurers.
29.33 LEASEHOLD PROPERTY
In relation to each Property where the Company's tenure is leasehold:
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29.33.1 Details of Lease
The details of the Lease set out in Schedule 3 are complete and
accurate in all respects.
29.33.2 Collateral assurances and undertakings
No collateral assurances, undertakings, waivers, releases or
concessions have been made by any party to the Lease.
29.33.3 Head lease
The Lease is a head lease.
29.33.4 Consents
Any consents required for the vesting of the Lease in the
Company or for the grant of any sub-lease or for any works
carried out by or change of use effected by the tenant have
been obtained and placed with the documents of title along with
evidence of the registration of any such grant or vesting where
requisite.
29.33.5 Registration of title
Where title to the Lease is not registered at HM Land Registry,
the Lease was not subject to compulsory registration when it
was granted and any subsequent disposition of the leasehold
interest was not subject to compulsory registration at the
relevant time.
29.33.6 Payment of rent
The last instalment of rent (and service charge if any) was
paid to and was accepted by the landlord or its agents without
qualification.
29.33.7 Subsisting breaches of covenant
There is no subsisting breach of the covenants contained in the
Lease or any other event which could give rise to forfeiture of
the Lease and no notice alleging any breach of the covenants
contained in the Lease, whether on the part of the landlord or
the tenant, remains outstanding.
29.33.8 Adverse matters
There are no matters affecting the Property (other than any
referred to in the Lease) which are protected either by
registration against any estate owner in the Land Charges
Department or by an entry in the registered title (if any) or
in any superior title which may be registered.
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PART 2
WARRANTIES RELATING TO TAX
PART 2A
IN THIS PART 2A OF SCHEDULE 6 A REFERENCE TO THE COMPANY SHALL BE DEEMED TO BE A
REFERENCE TO THE COMPANY AND THE UK SUBSIDIARY, BUT NOT TO THE US SUBSIDIARY.
1. ADMINISTRATION AND RETURNS
1.1 PROVISION
The Company has no liability for Tax (whether actual, deferred or
contingent) in respect of any financial period down to and including the
Accounts Date or referable to profits (including income and gains) made
or deemed to have been made on or before the Accounts Date which has not
been provided for or disclosed in the Unaudited Combined Results.
1.2 PAYMENT OF TAX
The Company has duly paid all Tax which it has become liable to pay and
has not in the six years ending on the date of this Agreement been
liable to pay a penalty, surcharge, fine or interest in connection with
Tax or the submission or failure to submit any returns.
1.3 INTEREST/PENALTIES
The Company is under no liability to pay any interest, penalty, fine or
default surcharge in connection with any Tax nor is any such liability
likely to arise.
1.4 RETURNS
The Company has properly and duly made all returns and supplied all
notices, accounts, computations and information for the purposes of Tax
required to have been made or supplied to any Tax Authority.
1.5 DISPUTES
None of the aforementioned returns, notices, accounts and information
has been or, so far as the Principal Sellers are aware, is likely to be
the subject of any dispute by any Tax Authority or will give rise to any
disallowance of relief, allowance, deduction or credit or any assessment
(including any claim for any penalty, interest, surcharge or fine).
1.6 INVESTIGATIONS
No Tax Authority has investigated or indicated that it intends to
investigate or enquire into the Tax affairs of the Company or carried
out any audit or enquiry in relation to the Tax affairs of the Company
and, so far as the Principal Sellers are aware, there are no
circumstances which are likely to give rise to any such investigation or
enquiry.
1.7 CLAIMS AND ELECTIONS
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1.7.1 All claims, disclaimers, elections, surrenders, appeals or
applications which the Company has made or is entitled to make in
respect of Tax have been Disclosed and the particulars thereof
are sufficient to enable the Purchaser to procure that any time
limit to such entitlement expiring within six months of
Completion can be met.
1.7.2 All Tax claims, disclaimers, elections, surrenders, notices,
consents and all other things in respect of Tax the making,
giving or doing of which was assumed to have been made for the
purposes of the Unaudited Combined Results have been duly and
properly made, given or done.
1.8 CLEARANCES AND CONSENTS
1.8.1 All clearances or consents relating to Tax (including for the
avoidance of doubt clearances made pursuant to Section 765 of the
Taxes Act) obtained by or on behalf of the Company have been
properly obtained on the basis of full and accurate disclosure to
the appropriate section of the relevant Tax Authority of all
material facts and circumstances; any transaction for which such
consent or clearance was obtained has been carried out in
accordance with the terms of the relevant application and consent
or clearance; and any such consent or clearance was and remains
valid and effective.
1.8.2 All agreements, concessions or other arrangements which are not
based on a strict application of the relevant legislation
(whether formal or informal) currently subsisting which have been
made with or by any Tax Authority have been Disclosed and no
action has been taken by or on behalf of the Company which has
had or is likely to have the result of altering, prejudicing or
in any way disturbing any such agreement, concession or
arrangement.
1.9 COLLECTION AND DEDUCTION OF TAX
1.9.1 All payments by the Company which ought to have been made under
deduction of Tax have been so made and the Company has accounted
to the Tax Authority for the Tax so deducted and in particular
has complied in all respects with the following provisions of the
Taxes Act and other legislation and all regulations made under
any of those provisions:
(a) Section 43 (payments of rent to a non-resident landlord);
(b) Section 123 and Schedule 3 (collection of foreign
dividends on behalf of a UK resident);
(c) Section 339 (deduction of Tax from donations to a
charity);
(d) Sections 349 and 350 (deduction of Tax from interest and
annual payments);
(e) Section 524 (deduction of Tax from patent receipts);
(f) Section 536 (deductions of Tax from royalties);
(g) Sections 559 to 567 (deduction of Tax from payments to
sub-contractors in the construction industry);
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(h) Section 582 (deduction of Tax from funding bonds);
(i) Section 732 (deduction of Tax by dealers in securities
buying securities cum interest);
(j) Section 737 (deduction of Tax where dividends
manufactured);
(k) Section 777 (deduction of Tax following a Section 776
transaction in land); and
1.9.2 All rent interest, annual payments and other sums of an income
nature paid during or in respect of the six years ending on the
Accounts Date or which the Company is under an obligation to pay
in the future are wholly allowable as deductions or charges on
income in computing profits for the purposes of corporation Tax.
1.10 The Company is in possession of sufficient information or has reasonable
access to such information to enable it to make and complete all returns
for Tax purposes insofar as it depends on any Event (as defined in the
Tax Covenant) occurring on or before Completion and the books and
records of the Company contain sufficient detail in appropriate form to
enable the Tax liability of the Company to be established and to
determine the Tax consequences which would arise on any disposal or
realisation of any asset owned at the Accounts Date or acquired since
that date but before Completion and to comply with its obligations under
Part III of Schedule 18 to the Finance Xxx 0000 ( duty to keep and
preserve records);
1.11 The execution or completion of this Agreement will not result in any
profit or gain being deemed to accrue to the Company for Tax purposes
whether under Section 178 or 179 TCGA 1992 or otherwise.
1.12 The Disclosure Letter contains full and accurate particulars of any
transaction outside the ordinary course of trade in respect of which the
Company is required to make a return or provide information to a Tax
authority, where such return or information will not have been provided
at Completion;
1.13 The Company has not made any payment to or provided any benefit for any
officer or employee during the six years ended on the Accounts Date
which is not or was not allowable as a deduction in calculating the
profits of the Company for Tax purposes in the accounting period in
which it was paid and is under no obligation to make any such payment or
provide any such benefit.
1.14 No Event has occurred as a result of which the Company has or may become
liable to pay or to bear any Tax which is primarily or directly
chargeable against or attributable to any person, firm or company other
than the Company.
1.15 No relief (whether by way of deduction, reduction, set off, exemption,
postponement, rollover, holdover, repayment or allowance or otherwise)
from, against or in respect of any Tax has been claimed and/or given to
any Company which, so far as the Principal Sellers are aware, could or
might be effectively withdrawn, postponed, restricted, clawed back or
otherwise lost as a result of any act, omission, event or circumstance
arising or occurring in the ordinary course of business at or at any
time after Completion.
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1.16 The Company is not, and will not become, liable to pay, or make
reimbursement or indemnity in respect of, any Tax (or amounts
corresponding to any Tax) payable by or chargeable on or attributable to
any other person, whether in consequence of the failure by that person
to discharge that Tax within any specified period or otherwise, where
such Tax relates to a profit, income or gain, transaction, event,
omission or circumstance arising, occurring or deemed to arise or occur
(whether wholly or partly) on or prior to Completion.
2. ANTI-AVOIDANCE
2.1 The Company has not at any time within the last six years (nor at any
time except as has been fully disclosed to the relevant tax authority)
entered into any transaction, series of transactions, schemes or
arrangements of which the main purpose, or one of the main purposes, was
the avoidance of, or a reduction in liability to Tax and the Company has
not at any time entered into a transaction the main purpose of which was
a commercial purpose but into which a step or a series of steps have
been inserted with a view to the avoidance of, or a reduction in, or the
mitigation of, or the deferral of a liability to Tax; or in respect of
or to any transaction which the Company could be liable to Tax as a
result of the principles enunciated by the House of Lords in the line of
cases including Xxxxxxx v Xxxxxx, Xxxxxx v White and McGuckian v IRC,
and, without prejudice to the generality of the foregoing, to which any
of the following provisions could apply:
2.1.1 Sections 35 and 36 of the Taxes Act (assignment of lease granted
at undervalue; sale with right to conveyance);
2.1.2 Section 43A Taxes Act (rent factoring);
2.1.3 Section 56 of the Taxes Act (transactions in deposits with and
without certificates or in debts);
2.1.4 Section 116 of the Taxes Act (arrangements for transferring
relief);
2.1.5 Section 240 of the Taxes Act (surrender of advance corporation
Tax);
2.1.6 Section 341 of the Taxes Act (payments of interest etc between
related companies);
2.1.7 Section 395 of the Taxes Act (leasing contracts and company
reconstructions);
2.1.8 Section 399 of the Taxes Act (dealings in commodity futures etc;
withdrawal of loss relief);
2.1.9 Section 410 of the Taxes Act (arrangements for transfer of
company to another group or consortium);
2.1.10 Part XVII of the Taxes Act (Tax Avoidance);
2.1.11 Part 2 Chapter 17 of the CAA (Anti-Avoidance);
2.1.12 Section 106 of the TCGA (disposals of shares and securities
within prescribed period of acquisition);
2.1.13 Sections 29 to 34 of the TCGA (value shifting); and
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2.1.14 Schedule 9A to the VATA.
2.2 The Company has not been a party to any transaction to which any of the
following provisions have been, or could be, applied, other than where
all necessary consents or clearances have been obtained:
2.2.1 Sections 703 to 709 (inclusive) of the Taxes Act (cancellation of
Tax advantages from certain transactions in securities);
2.2.2 Sections 765 to 767 (inclusive) of the Taxes Act (migration etc.
of companies);
2.2.3 Section 776 of the Taxes Act (transactions in land; Taxation of
capital gains); and
2.2.4 Sections 135 to 139 (inclusive) of the TCGA (company
reconstructions and amalgamations).
3. CAPITAL ALLOWANCES
3.1 All capital expenditure which the Company has incurred or may incur
under any subsisting commitment has qualified or will qualify for
capital allowances.
3.2 The Principal Sellers are not aware of any circumstances as to why the
capital expenditure on which capital allowances have been claimed should
not continue to attract capital allowances either under the Taxes Act or
the CAA.
3.3 Full details of capital allowances claimed in each of the last six years
and of all disclaimers of capital allowances and reductions in initial
allowances on industrial buildings have been Disclosed.
3.4 All capital allowances made or to be made to the Company in respect of
capital expenditure incurred prior to Completion or to be incurred under
any subsisting commitment have been made or will be made for the purpose
of its trade.
3.5 Since the Accounts Date the Company has not done or omitted to do or
agreed to do or permitted to be done any act as a result of which there
may be a balancing charge or reduction in allowance under Sections 55,
314, 376 or 417 of the CAA, or a withdrawal of first year allowances or
recovery of excess relief under Sections 111 or 112 of the CAA.
3.6 None of Sections 325 or 326, Part 2 Chapter 17, or Sections 567 to 570
inclusive, or 157 of the CAA applies in respect of any of the assets
owned by the Company.
3.7 The Company has not made any election under Part 2 Chapter 9 of the CAA
nor has it made an election thereunder for assets to be treated as
short-life assets.
3.8 The Company has not incurred any capital expenditure on the provision of
machinery or plant for leasing (Part 2 Chapter 14).
3.9 The Company is not and has not been the lessee of any plant or
machinery.
3.10 No balancing charge under the CAA would arise on the disposal of any
asset or the assets of the Company taken as a whole if each of the
assets were disposed of for a consideration equal to its book value in
or adopted for the purposes of the Accounts
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(and for the purposes of this warranty "asset" shall be taken to include each
and every part of such asset).]
3.11 The Company is not in dispute with any person as to the availability of
allowances under Part 2 Chapter 4 CAA and there are no circumstances
which are likely to give rise to such a dispute.
3.12 None of the Company's assets, expenditure on which has qualified for a
capital allowance under Part 3 CAA, has at any time since that
expenditure was incurred been used otherwise than as an industrial
building or structure.
3.13 The Company has not entered into, nor agreed to enter into, any
elections under Section 198 CAA.
4. CLOSE COMPANIES
4.1 The Company is not and has never been a close company within the meaning
of Section 414 of the Taxes Act (close companies).
5. CORPORATION TAX ON CHARGEABLE GAINS
5.1 The Company has not made nor has it been entitled to make any claim
under any of the following provisions of the TCGA:
5.1.1 Section 23 (compensation and insurance proceeds applied to
replace or restore asset);
5.1.2 Section 24(2) (assets lost or destroyed or whose value becomes
negligible);
5.1.3 Sections 48 and 280 (consideration due after time of disposal);
5.1.4 Section 242 (small part disposals);
5.1.5 Sections 247 (roll-over relief on compulsory acquisition of
land);
5.1.6 Sections 152 to 158 (roll-over relief on business assets);
5.1.7 Section 161(3) (appropriation to trading stock);
5.1.8 Section 175 (replacement of business assets by members of a
group);
5.1.9 Sections 253 or 254 (reliefs for loans to traders and for debts
on qualifying corporate bonds), and no chargeable gain has arisen
or is likely to arise under Sections 253 or 000 XXXX; and
5.1.10 Section 280 (consideration payable by instalments).
5.2 The book value of each asset of the Company as shown in or adopted for
the purposes of the Unaudited Combined Results is such that if an asset
were disposed of at Completion for a consideration or deemed
consideration equal to its book value no liability to Tax would be
incurred and for this purpose any relief or allowance available to the
Company, other than amounts to be deducted in calculating the amount
liable to Tax, shall be disregarded.
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5.3 No assessment has been postponed under Section 279 of the TCGA (delayed
remittance of capital gain on disposal of a foreign asset).
5.4 In respect of the TCGA:
5.4.1 no loss which might accrue on the disposal by the Company of any
asset is liable to be reduced or eliminated by the application of
Section 35(3) or (4) of the TCGA (exclusion of rebasing);
5.4.2 the Company has not made any election under Section 35(5) of the
TCGA for capital gains and allowable losses on assets held on 31
March 1982 to be computed by reference to their market value on
that date irrespective of their acquisition cost nor is it
treated by paragraph 8 of Schedule 3 of the TCGA as having made
an election that all disposals fall outside Section 35 of the
TCGA;
5.4.3 since 6 April 1988 the Company has not disposed of any asset
which was held by it on 31 March 1982 (time period for making
election under Section 35(5) of the TCGA);
5.4.4 the provisions of paragraph 2 of Schedule 3 of the TCGA would not
apply to any asset held by the Company (asset governed by
rebasing elections made by other persons);
5.4.5 the Company does not hold any asset on the disposal of which a
claim may be made under paragraph 9 of Schedule 4 of the TCGA;
and no gain to which paragraph 4(1)-(4) of Schedule 4 of the TCGA
may apply in consequence of an event occurring after Completion
would be treated as accruing to the Company (deferred gains and
assets acquired since 31 March 1982);
5.4.6 the Company has not disposed of any asset and no gain has been
treated as accruing to the Company in respect of which a claim
could be made under paragraph 9 of Schedule 4 of the TCGA and in
respect of which no such claim has been made; and
5.4.7 the Company does not own any asset to which paragraph 4(2) of
Schedule 3 to the TCGA would apply on its disposal.
5.5 The Company has not taken or omitted to take any action whereby either:
5.5.1 the Company is denied the right to the time apportionment basis
for computing the chargeable gain on any asset held at 6 April
1965 by reason of any election, part disposal, reorganisation,
reconstruction or transfer to a close company; or
5.5.2 the Company is deprived of the right to make an election to have
a chargeable gain on any asset held at 6 April 1965 assessed by
reference to its value at that date.
5.6 The Company has not disposed of or acquired any asset in circumstances
such that Section 17 of the TCGA could apply (disposals and acquisitions
treated as made at market value).
5.7 The Company is not entitled to a capital loss to which Section 18(3) and
(4) of the TCGA is applicable (disposals to a connected person).
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5.8 The Company has not acquired shares as a "new holding" within the
meaning of Sections 126 to 130 of the TCGA (inclusive) (reorganisations
of share capital, etc.), as extended by Sections 132, 135 and 136 of the
TCGA.
5.9 No gain chargeable to corporation Tax will accrue to the Company on the
disposal of any debt owed to the Company.
5.10 No loss which may accrue on the disposal by the Company of any asset is
liable to be reduced by virtue of any depreciatory transaction within
the meaning of Section 176 of the TCGA (transactions in a group) or
Section 177 of the TCGA (dividend stripping).
5.11 The Company has not engaged in any transactions which may hereafter
result in an adjustment being made under Sections 29, 30, 31, 32, 33 or
34 of the TCGA of the consideration received on any future disposal
(value shifting).
5.12 The Company has made no election pursuant to Section 171A TCGA (Notional
transfers within a group).
5.13 The Company has not take part in any transaction in respect of which
Section 176 of the TCGA could apply to reduce any allowable loss.
5.14 Full details of all assets currently owned by the Company in relation to
which a charge to Tax might at any time within the next six years arise
under Sections 178-181 (inclusive) of the TCGA (company ceasing to be
member of a group):-
(a) on the sale of the Company pursuant to this Agreement; or
(b) on the sale of any company which is at the date of this Agreement
a subsidiary of the Company
are (together with the current allowable expenditure in relation to each
of such assets) Disclosed.
5.15 The Company has not been assessed and no event has occurred as a result
of which the Company is or could be liable to be assessed to corporation
Tax under Section 190 of the TCGA (tax on one member recoverable from
another).
5.16 The Company has not received any capital distribution to which the
provisions of Section 189 of the TCGA (Capital Distribution of
Chargeable Gains: Recovery of Tax from Shareholders) could apply.
5.16.1 The Company has not acquired benefits under any policy of
assurance which would on disposal give rise to a chargeable gain
under Section 210 of the TCGA (disposals by a person other than
the original beneficial owner).
5.16.2 The Company has not received any assets by way of gift and as
mentioned in Section 282 of the TCGA (recovery of Tax from
donee).
5.16.3 The Company is not nor has it been a shareholder in a company
which has made a transfer as mentioned in Section 125 of the TCGA
(close company transferring assets at an undervalue).
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5.16.4 The Company is not deemed to have made a disposal of any assets
under Section 186 of the TCGA (assets ceasing to be within the
charge to UK Tax).
5.16.5 The Company has not made any claim or election under Section 187
of the TCGA (postponement of gains relating to foreign trades).
5.16.6 The Company does not own any assets which are wasting assets
within Section 44 of the TCGA and which do not qualify for
capital allowances.
5.16.7 The Company has not carried out or been involved in or connected
with any scheme of reconstruction or amalgamation involving a
transfer of business assets whether or not Section 139 TCGA
applied to the transfer.
5.16.8 The Company has not realised a pre-entry loss or acquired any
pre-entry asset as defined in Schedule 7A TCGA.
5.16.9 The Company has not disposed of any chargeable asset for a
consideration not payable wholly in cash on completion of the
disposal.
5.16.10 The Company has not made an election under paragraph 4 Schedule
2 TCGA and no asset owned by the Company is subject to a deemed
disposal and re-acquisition under paragraph 16, 19 or 20
Schedule 2 TCGA.
5.16.11 The Company has not acquired any policy of assurance or contract
for a deferred annuity or interest in any such policy or
contract in circumstances such that a chargeable gain could
arise on disposal under Section 210 TCGA.
5.16.12 The Company has not transferred a trade carried on by it outside
the United Kingdom through a branch or agency in circumstances
such that a chargeable gain could be deemed to arise at a date
after such transfer under Section 140 TCGA.
6. LOANS, FINANCIAL INSTRUMENTS, AND EXCHANGE GAINS AND LOSSES
6.1 The Company is not a party to any loan relationship within the meaning
of Section 81 of the Finance Xxx 0000 with a person with which it is
connected so that Section 87 of that Act applies.
6.2 The Company is not and has not been a party to any loan relationship in
circumstances where the debt has become a bad debt, has been or could be
estimated to be bad or has been released so that paragraphs 5 or 6 of
Schedule 9 of the Finance Xxx 0000 could apply.
6.3 The Company uses an accruals basis as its authorised accounting method
for the purpose of Chapter II Part IV of the Finance Xxx 0000.
6.4 There are no outstanding debts owed to or by the Company, or any
securities issued by the Company or which it owns or in which it has an
interest, which will not be repaid at Completion, other than trade debts
which fall within the exemption in Section 251(1) TCGA and which do not
arise out of loan relationships of the Company for the purposes of
Section 81(1) FA 1996.
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6.5 No loan relationship entered into by the Company has an unallowable
purpose within paragraph 13 Schedule 9 of the Finance Xxx 0000.
6.6 The Company is not and never has been a party to any interest rate
contract or option, or currency contract or option which is or may
become a qualifying contract as described in Chapter II Part IV FA 1994.
6.7 The Company has and has never had any assets or liabilities and is not
and has never been a party to a currency contract to which Chapter II
Part II FA 1993 could apply.
7. DISTRIBUTIONS
7.1 The Company has not made any distributions or failed to so treat any
amount which ought to have been to so treated for the purposes of Part
VI or Section 418 of the Taxes Act except for dividends shown in its
audited accounts nor is the Company bound to make any such distributions
and has not issued or agreed to issue share capital as paid up other
than by the receipt of new consideration within the meaning of Part VI
Taxes Act.
7.2 The Company has not issued or agreed to issue any security within the
meaning of Section 254 of the Taxes Act the interest or other
consideration given in respect of which falls to be Taxed under Section
209.
7.3 The Company has not redeemed, repaid or purchased any of its own shares
or agreed to redeem, repay or purchase any of its own shares or
converted or agreed to convert its share capital or capitalised or
agreed to capitalise in the form of redeemable shares or debentures any
profits or reserves of any class or description.
7.4 The Company has not been a party to an exempt distribution within the
meaning of Sections 213 to 218 (inclusive) of the Taxes Act within the
last six year (demergers -- exempt distributions).
7.5 The Company has not issued any share capital to which the provisions of
Section 249 of the Taxes Act (stock dividends treated as income) could
apply nor does it own any such share capital (shares carrying the right
to bonus share capital).
7.6 The Company has not made an election under Section 246A of the Taxes Act
(Foreign Income Dividends).
8. EMPLOYMENT TAXES
8.1 The Company has duly paid and accounted for all sums payable to the
Inland Revenue in respect of income Tax under the Pay As You Earn system
(including any sums payable in respect of benefits provided to the
Company's Directors, employees or former employees) and has complied
with all its reporting obligations in connection with all payments to
and benefits provided for the Company's Directors, employees and former
employees.
8.2 The Company has duly paid and accounted for all National Insurance
Contributions required of it under the provisions of the Social Security
Contributions and Benefits Act 1992 (as amended) and regulations made
thereunder.
8.3 No PAYE audit has been made in respect of the Company by the Inland
Revenue and no notice has been given that any such audit will or may be
made.
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8.4 The Company has duly applied, paid and accounted for all income related
benefits within Section 123 Social Security Contributions and Benefits
Xxx 0000 and regulations made thereunder.
8.5 The Company is not and has not been a party to any arrangement which has
been, is being or may be challenged as being an abnormal pay practice
under regulation 21 of the Social Security (Contributions) Regulations
(SI 1979/591).
8.6 Full details of all dispensations granted to the Company by the Inland
Revenue under Section 166 Taxes Act or otherwise relating to payments
and benefits made or provided, or treated as made or provided, to its
directors, employees or officers or former directors, employees or
officers or any persons required to be treated as such, and the
reporting requirements mentioned in relation to such payments and
benefits in paragraph 8.1 together with full details of any PAYE
settlement agreements negotiated and agreed with the Inland Revenue
under Section 206A Taxes Act are Disclosed.
8.7 The Company has complied fully with its obligations under the provisions
of sections 136(6), 139(5) and 140G Taxes Act and Section 85 FA 1988.
8.8 Full details of all share option schemes and profit sharing schemes
established by the Company, whether approved by the Inland Revenue under
the provisions of Schedule 9 Taxes Act or otherwise and employee share
ownership plans under FA2000 Schedule 8 are Disclosed, and the Company
has complied with all statutory requirements in respect of such schemes.
8.9 The Company has not established a qualifying employee share ownership
trust within the meaning of Section 74 and Schedule 5 FA 1989 and no
chargeable event within the meaning of section 69 FA 1989 has occurred.
8.10 Full details of all profit-related pay schemes providing for the payment
to any employee of the Company of emoluments calculated by reference to
profits, which have ever been registered under Chapter III Part V Taxes
Act are Disclosed.
8.11 Full details of all agreements pursuant to paragraph 3A and elections
pursuant to paragraph 3B, Schedule 1 Social Security Contributions and
Benefits Xxx 0000 are Disclosed and no relief thereunder has been
withdrawn and, so far as the Principal Sellers are aware, there are no
circumstances under which it can be expected that any such relief could
be withdrawn.
8.12 The Company has complied fully with its obligations under Chapter IV
Part XIII Taxes Act (subcontractors in the construction industry).
8.13 There are no rights to acquire shares in the Company in respect of which
notice has, could or could have been given pursuant to Section 1(1)
Social Security Contributions (Share Options) Xxx 0000.
9. FOREIGN MATTERS
9.1 The Company is and has at all times been resident in the United Kingdom
for Tax purposes.
9.2 The Company is not regarded and has never fallen to be treated for the
purposes of any double Taxation relief arrangements as resident in a
territory outside of the United
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Kingdom and is not liable to Tax on gains arising on disposals of assets
of descriptions specified in any such arrangements nor are the Principal
Sellers aware of any circumstances as to why this would be the case.
9.3 The Company has not carried out any transaction within Section 765A of
the Taxes Act (migration of companies).
9.4 The Company has not carried out any transaction to which Section 765A of
the Taxes Act applies (movement of capital between residents of the
European Community).
9.5 The Company is not a person to whom Section 132(2) of the Finance Xxx
0000 or Section 191(2) of the TCGA applies (liability of other persons
for unpaid Tax of migrating companies: non-payment of Tax by
non-resident companies).
9.6 The Company has not transferred a trade carried on by it outside the
United Kingdom through a branch or agency to a company not resident in
the United Kingdom in circumstances such that a chargeable gain may be
deemed to arise at a date after the transfer under Section 140 of the
TCGA (postponement of charge on transfer to a non-resident company).
9.7 The Company does not hold shares in a company which is not resident in
the United Kingdom and which would be a close company if it were
resident in the United Kingdom in circumstances such that a chargeable
gain accruing to the company not resident in the United Kingdom could be
apportioned to the Company pursuant to Section 13 of the TCGA.
9.8 The Company has not carried out nor been engaged in any transactions to
which the provisions of Section 770 of the Taxes Act (as extended by
Section 773 of the Taxes Act) (transactions at an undervalue) or
Schedule 28AA (transfer pricing) have been or may be applied.
9.9 The Company does not and has not ever had an interest in a controlled
foreign company within the meaning of Sections 747 and 752 Taxes Act.
9.10 The Company has no material interest in:
9.10.1 an offshore fund; or
9.10.2 a UK resident company or a unit trust scheme the trustees of
which are resident in the United Kingdom;
any of which is or has at any material time been a non-qualifying
offshore fund for the purposes of Sections 757 to 764 (inclusive) of and
Schedules 27 and 28 to the Taxes Act.
9.11 The Company is not and has never been a dual resident investment company
within the meaning of Section 404 of the Taxes Act.
9.12 The Company is not liable to be assessed to Tax under Sections 78 or 79
of the Taxes Management Xxx 0000 (branch or agent of a non-resident),
Sections 126 to 130 of the Finance Xxx 0000 (UK representative of
non-residents) or otherwise.
9.13 The Company has not made, nor is it entitled to make any claim under
Section 584 of the Taxes Act.
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9.14 The Company has not at any time been subject to Tax in any jurisdiction
outside the United Kingdom or had a branch outside the United Kingdom or
any permanent establishment (as that expression is defined in the
respective double Taxation relief orders current at the date of this
Agreement) outside the United Kingdom.
10. INHERITANCE TAX
10.1 No circumstances exist whereby any power within Section 212 of the IHTA
(powers to raise Tax) could be exercised in relation to any shares,
securities or other assets of the Company, or which could be exercised
but for the provisions of Section 204(6) IHTA.
10.2 There is no Inland Revenue charge outstanding for unpaid inheritance Tax
as provided by Sections 237 and 238 of the IHTA (Inland Revenue charge
for unpaid Tax) over any asset of the Company or in relation to any
shares in the capital of the Company.
10.3 The Company has not been a party to associated operations in relation to
a transfer of value within the meaning of Section 268 IHTA.
10.4 The Company has made no transfer of value within section 94 or 99 IHTA
1984.
11. LOSSES AND RELIEFS
11.1 There has been no change in the ownership of the Company or major change
in the nature or conduct of a trade or business carried on by the
Company and no event or series of events which might cause the
disallowance of the carry forward of losses or excess charges under the
provisions of Section 768 of the Taxes Act or the disallowance of the
carry forward, set-off or surrender of advance corporation Tax under the
provisions of Sections 000, 000X xx 000X xx xxx Xxxxx Xxx (xxxxxx of
ownership of company; calculation and treatment of advance corporation
Tax) or restrictions on the set off of pre-entry losses under Schedule
7A of the TCGA.
11.2 The Company has not surrendered or claimed any amount by way of group
relief under the provisions of Sections 402 to 413 (inclusive) of the
Taxes Act (group relief) or under the provisions of Section 240 of the
Taxes Act (surrender of advance corporation Tax).
12. MATTERS SINCE THE ACCOUNTS DATE
Since the Accounts Date:-
12.1 no Event has occurred which has given rise or may give rise to a Tax
liability on the Company other than transactions entered into in the
ordinary course of business; and
12.2 the Company has not made any payment either alone or in aggregate with
any other payments of a similar nature which exceed Pound Sterling10,000
which will not be deductible for the purposes of corporation Tax in
computing the Taxable profits of the Company.
13. STAMP DUTY AND STAMP DUTY RESERVE TAX
13.1 All documents which are required to be stamped and which are in the
possession or under control of the Company or to which the Company is a
party have been properly stamped and the appropriate stamp duty has been
paid and there is no liability for any interest or penalty in respect of
such duty and no such documents which are outside the United Kingdom
would attract stamp duty if they were brought into the United
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Kingdom and no documents are presently subject to adjudication of claims
for exemption or relief.
13.2 Within the period of five years ending on today's date the Company has
not made any claim for relief or exemption from stamp duty under Section
42 of the Finance Xxx 0000, Sections 75, 76 or 77 Finance Xxx 0000, or
Section 151 of Finance Xxx 0000.
13.3 The Company has not had transferred to it chargeable securities (as
defined in Section 99 of the Finance Act 1986) in circumstances which
have given rise to or which may give rise to a liability for Stamp Duty
Reserve Tax nor are there any other circumstances in which the Company
may have a liability for Stamp Duty Reserve Tax.
14. VALUE ADDED TAX
14.1 For the purpose of this paragraph:-
"THE VAT LEGISLATION" means the law relating to VAT in any jurisdiction
including VATA 1994 and all regulations made or imposed thereunder (or
any earlier enactment of which VATA 1994 is a consolidation) and any
other statutes or other provisions relating to value added Tax including
all EC legislation whether in the form of directives, regulations or
otherwise; and
"VAT" means UK value added Tax and its equivalent under the law of any
other country.
14.2 The Company is a registered Taxable person for the purposes of VAT and
has been duly registered at all times that it has been required to be
registered and such registration is not subject to any conditions
imposed or agreed with HM Customs & Excise. The Company has at all times
issued correct Tax invoices to all persons properly requiring the same
in respect of its Taxable supplies either by way of goods or of services
and has likewise requested and received all appropriate Tax invoices
from its suppliers and others and has kept all necessary records and
documents required to complete and verify its VAT returns, and is not
subject to any conditions imposed by HM Customs & Excise under Part 6
Schedule II VATA.
14.3 The Company has in all other respects complied with the VAT legislation
and all regulations, notices, orders, provisions, directions and
conditions relating to VAT.
14.4 The Company is not in arrears with any payments or returns under the VAT
legislation or liable to any abnormal or non-routine payment or any
forfeiture, penalty, interest or surcharge or to the operation of a
penalty, interest or surcharge provisions contained therein.
14.5 The Company is not and has never been partially exempt for VAT purposes
and has not been denied credit for any input Tax.
14.6 The Company has never been required by the Commissioners of HM Customs
and Excise to give security.
14.7 There is not, nor has there at any time been, in force a group or
similar election for VAT purposes in relation to the Company and the
Company has not been the subject of an application for group
registration, and no transaction has been effected in consequence
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of which the Company is or may be held liable for any VAT arising from
supplies made by another company.
14.8 The Company is not and will not become for VAT as agent, manager or
factor (for the purposes of Section 47 of the VATA) nor as VAT
representative (for the purposes of Section 48 of the VATA) of any
person who is not resident in the United Kingdom.
14.9 Full particulars of any claim for bad debt relief made or which may be
made by the Company under Part XIX of the Value Added Tax Regulations
1995 (SI 1995/2518) have been Disclosed.
14.10 The Company has not received a surcharge liability notice under Section
59 of the VATA (default surcharge) or a penalty liability notice under
Section 64 of the VAT Xxx 0000 (persistent misdeclaration resulting in
understatements or overclaims).
14.11 The Company nor any relevant associate of the Company (within the
meaning of paragraph 3(7) of Schedule 10 to the VAT Act 1994) has not
made and will not prior to Completion make an election under paragraph 2
of Schedule 10 to the VAT Xxx 0000 (election to waive exemption).
14.12 The Company is not and has not at any time been liable nor has it taken
any action likely to make it liable to a self supply charge under
paragraph 6 of Schedule 10 to the VAT Xxx 0000 (developers of certain
non-residential buildings etc.)
14.13 No notice has been received by the Company and the Company is not aware
of anything which indicates that the grant to the Company of any
interest in or right over land or of any licence to occupy land is and
will continue to be other than an exempt supply for VAT purposes.
14.14 The Company does not own any assets which are or could be subject to the
Capital Goods Adjustment Scheme pursuant to Part XV Value Added Tax
Regulations 1995 (SI 1995/2518).
14.15 All supplies of goods and services made by the Company are Taxable
supplies for the purposes of the VATA and all input Tax is deductible in
accordance with the provisions of sections 25 and 26 VATA.
14.16 All goods or services supplied to the Company, or goods imported by the
Company, in respect of which the Company has claimed credit for input
Tax under the rules set out in VATA, are used or to be used wholly for
the purposes of the Company's business.
14.17 The Company has never disposed of or acquired any business or assets in
the circumstances mentioned in Section 49 VATA or Article 5 of the Value
Added Tax (Special Provisions) Order 1995.
14.18 The Company has never been registered for the purposes of VAT by reason
of its intention to make Taxable supplies (within the meaning of Section
4 VATA) and has not claimed input Tax on the basis of anticipated
Taxable supplies which have not yet been made.
14.19 There are set out in the Disclosure Letter details of all outstanding
claims made by the Company under Section 22 Value Added Tax Xxx 0000 and
Section 36 VATA.
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14.20 The Company has not been a party to any transaction or arrangement as a
result of which a direction has been or may be given under Schedule 9A
VATA.
14.21 The Company has not received any supplies of the type described in
Schedule 5 VATA.
14.22 The Company has not incurred any liability in respect of VAT (whether to
HM Customs and Excise or to any other person) by reason of the
provisions of paragraph 2(1) Schedule 10 VATA and there are no
circumstances whereby the Company could become so liable as a result of
a person making an election under that paragraph.
14.23 Neither the Company nor any relevant associate (within the meaning of
paragraph 3(7) Schedule 10 VATA) has made any election under paragraph
2(1) Schedule 10 VATA in respect of any land in, over or in respect of
which the Company has any interest, right or licence to occupy and the
Principal Sellers are not aware of any intention to make such an
election.
14.24 The Company does not own the fee simple in any building or work such as
is referred to in Item 1(a) Group 1 Schedule 9 VATA the supply of which
would be standard rated.
14.25 No interest in or right over land or any licence to occupy land of the
Company constitutes or is subject to a developmental tenancy,
developmental lease or developmental licence such as is referred to in
Item 1(b) Group 1 Schedule 9 VATA.
15. LANDFILL TAX
The Company has never had land which is a landfill site and has never
been an operator or the controller of the whole or a part of a landfill
site within Part III Finance Xxx 0000.
16. AGGREGATES LEVY
The Company has never been required to be registered and has not been an
operator of a site for the purposes of the Aggregates Levy within Part 2
Finance Xxx 0000.
17. GROUP PROVISIONS
17.1 The Company is a member of the Group for the purposes of Section 402 of
the Taxes Act and there are no arrangements in existence within the
meaning of Section 410 of the Taxes Act which would preclude the Company
from being a member of the Group.
17.2 The provisions of Section 413(7) and (8) of the Taxes Act as
supplemented by the provisions of Schedule 18 to the Taxes Act do not
apply and the Principal Sellers are not aware of any reason as to why
they may apply (restriction of group relief).
17.3 Details of all claims and surrenders for group relief and of the
surrender of advance corporation Tax pursuant to Section 240 of the
Taxes Act and refunds present to Section 102 of the Finance Xxx 0000
have been Disclosed.
17.4 The Company has not made, nor is it liable to make any payment for the
surrender of group relief or advance corporation Tax.
17.5 All claims for the surrender of group relief and advance corporation Tax
were valid when made and have been or will be allowed by way of relief
from corporation Tax.
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17.6 The Company does not own any asset which it has acquired from another
company which was at the time a member of the same group of companies as
defined in Section 170 TCGA and which owned that asset other than as
trading stock within the meaning of Section 173 of the TCGA.
17.7 The Company has not ceased and will not cease to be a member of a group
of companies in circumstances in which a charge under Sections 178 and
179 of the TCGA has arisen or may arise.
17.8 The Company has made no claim under Section 175 of the TCGA (replacement
of business assets by a member of a group) or Sections 247 and 152 to
154 (inclusive) TCGA.
17.9 There have been Disclosed copies of all elections made pursuant to
Section 247 of the Taxes Act (claim to have dividends and interest paid
gross) and all such elections were validly made and are now in force.
17.10 The Company has not made any payment without deduction of income Tax in
the circumstances specified in Section 247(6) of the Taxes Act or, prior
to 6 April 1999, paid any dividend without advance corporation Tax.
17.11 The provisions of Sections 245A and 245B of the Taxes Act have not and
will not apply to any advance corporation Tax which has been surrendered
to the Company.
17.12 No shares owned by the Company are held as trading stock.
17.13 The Company has not entered into or been otherwise involved in any
transaction to which Section 774 Taxes Act applies.
17.14 The Company has not been a party to any such reconstruction as is
described in Section 343 Taxes Act.
17.15 The Company has not been the subject of or otherwise involved in any
arrangements as are referred to in Section 240(11) or 410 Taxes Act.
17.16 The Company has not acquired an asset as trading stock from a member of
the same group where the asset did not form part of the trading stock of
any trade carried on by the other member, as mentioned in Section 173(1)
TCGA, or disposed of an asset which formed part of the trading stock of
any trade carried on by the Company to another member of the same group
which acquired the asset otherwise than as trading stock of a trade
carried on by the other member, as mentioned in Section 173(2) TCGA.
17.17 The Company has not been, and there are no circumstances by virtue of
which the Company could be, assessed or charged to corporation Tax by
virtue of the provisions of Section 178(9), 179(11), 190 or 191 TCGA and
is not entitled to recover or liable to have recovered from it any sums
paid pursuant to any of those sections.
18. LOSSES, ACT AND SHADOW ACT
18.1 Within the period of three years ending on the date of this Agreement
there has been no major change in the nature or conduct of a trade or
business carried on by the Company within the meaning of Xxxxxxx 000,
000X xx 000 Xxxxx Xxx.
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18.2 There has at no time been a change in the ownership of the Company
(otherwise than pursuant to this Agreement) such that Section 245B, 768
or 768A Taxes Act has been or may be applied to deny relief in respect
of any ACT or loss or losses or excess charges on income of the Company.
18.3 The Company has complied with the provisions of the Corporation Tax
(Treatment of Unrelieved Surplus Advanced Corporation Tax) Regulations
SI 1999/358 in utilising any surplus ACT in existence at 6 April 1999.
19. SHARES AND SECURITIES
19.1 The Company has not at any time:-
19.1.1 purchased or agreed to purchase, repaid or agreed to repay or
redeemed or agreed to redeem any shares of any class of its share
capital or any amount paid up on any of its shares;
19.1.2 capitalised or agreed to capitalise in the form of redeemable
shares or debentures any profits or reserves of any class or
description or passed or agreed to pass any resolution to do so;
or
19.1.3 provided capital to any company on terms whereby the company so
capitalised has in consideration of the provision of capital
issued loan stock or other securities on terms which were
otherwise than by way of a bargain made at arm's length.
19.2 The Company does not hold or have in issue any shares or securities (as
defined in section 132(3)(b) TCGA) other than the Shares.
20. QUARTERLY INSTALMENT PAYMENTS
The Company is not obliged to pay corporation Tax in quarterly
instalments under the provisions of Corporation Tax (Instalment
Payments) Regulations 1998 (SI 1998 No 3175) and Section 59E TMA.
21. GROUP PAYMENT ARRANGEMENTS
The Company has not entered into any group payment arrangements under
the provisions of Section 36 FA 1998.
22. TRANSFER PRICING
22.1 The Company has not, nor agreed to, undertake any transactions which are
within the provisions of Schedule 28AA Taxes Act and the Disclosure
Letter sets out the details of the documentation the Company has
prepared to enable it to fulfil its obligations under Schedule 18 FA
1998 in respect of accounting periods ending after 30 June 1999 in
relation to transfer pricing.
22.2 The Company has not entered into any advance pricing agreements with the
Inland Revenue under the provisions of Section 85 FA 1999.
23. UNAUDITED COMBINED RESULTS
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23.1 The Unaudited Combined Results fully provide or reserve for all Tax
(including deferred Tax attributable to timing differences capable of
reversal after the Accounts Date) for which the Company is or may be
liable, or for which it may be accountable, as at the Accounts Date by
reference to:
23.1.1 the profits, gains, income and earnings (whether actual or
deemed) for any period ended on or before the Accounts Date; or
23.1.2 any distributions (within the meaning of Part VI or Xxxxxxx 000
Xxxxx Xxx) made or deemed to be made on or before Accounts Date;
or
23.1.3 any other transaction entered into or deemed to be entered into
on or before the Accounts Date.
23.2 To the extent that provision for deferred Tax was not made in the
Unaudited Combined Results, full details of the amounts of deferred Tax
not provided for and the matter to which the deferred Tax relates are
disclosed in the notes to the Unaudited Combined Results.
23.3 The Unaudited Combined Results fully provide or reserve, in accordance
with the accounting policies set out in the notes included in the
Unaudited Combined Results, for all Tax (including deferred Tax
attributable to timing differences capable of reversal after the
Accounts Date) for which the Company is or may be liable, or for which
it may be accountable, as at the Accounts Date by reference to:
23.3.1 the profits, gains, income and earnings (whether actual or
deemed) for any period ended on or before the Accounts Date; or
23.3.2 any distributions (within the meaning of Part VI or Xxxxxxx 000
Xxxxx Xxx) made or deemed to be made on or before Accounts Date;
or
23.3.3 any other transaction entered into or deemed to be entered into
on or before the Accounts Date.
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PART 2B
This Part 2B of Schedule 6 shall apply to and in respect of the US Subsidiary,
but not the Company or the UK Subsidiary.
1. In this Part 3B of Schedule 6: (a) "Tax" shall mean means any federal,
state, local, or foreign income, gross receipts, license, payroll,
employment, excise, severance, stamp, occupation, premium, windfall
profits, environmental, customs duties, capital stock, franchise,
profits, withholding, social security (or similar), unemployment,
disability, real property, personal property, sales, use, transfer,
registration, value added, alternative or add-on minimum, estimated, or
other tax of any kind whatsoever, including any interest, penalty, or
addition thereto, whether disputed or not; and (b) "Tax Return" shall
mean any return, declaration, report, claim for refund, or information
return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
2. The US Subsidiary has filed all Tax Returns that it was required to
file. All such Tax Returns were correct and complete in all respects.
All Taxes owed by the US Subsidiary (whether or not shown on any Tax
Return) which have fallen due for payment have been paid. The US
Subsidiary is not the beneficiary of any extension of time within which
to file any Tax Return. No claim has ever been made by an authority in a
jurisdiction where the US Subsidiary does not file Tax Returns that it
is or may be subject to taxation by that jurisdiction. There are no
Encumbrances on any of the assets of any of US Subsidiary that arose in
connection with any failure (or alleged failure) to pay any Tax.
3. The US Subsidiary has withheld, reported and paid all Taxes required to
have been withheld, reported and paid in connection with amounts paid or
owing to any employee, independent contractor, creditor, stockholder, or
other third party.
4. So far as the Principal Sellers are aware, no director or officer (or
employee responsible for Tax matters) of the US Subsidiary expects any
authority to assess any additional Taxes for any period for which Tax
Returns have been filed. There is no dispute or claim concerning any Tax
liability or alleged Tax liability of the US Subsidiary either (A)
claimed or raised by any authority in writing or (B) as to which any of
the Principal Sellers, or the directors and officers (or employees
responsible for Tax matters) of US Subsidiary has knowledge. All of the
federal, state, local, and foreign income Tax Returns, examination
reports and statements of deficiencies filed or assessed, as the case
may be, with respect to the US Subsidiary are included in the Disclosure
Documents for taxable periods after 31 October 1998.
5. The US Subsidiary has not waived any statute of limitations in respect
of Taxes or agreed to any extension of time with respect to a Tax
assessment or deficiency.
6. The US Subsidiary is not a party to any Tax allocation or sharing
agreement.
7. The unpaid Taxes of US Subsidiary did not, as of the Accounts Date,
exceed the reserve for Tax liability (rather than any reserve for
deferred Taxes established to reflect timing differences between book
and Tax income) set forth on the face of the JCI Accounts (rather than
in any notes thereto) and (B) do not exceed that reserve as adjusted for
the passage of time through the Completion Date in accordance with the
past custom and practice of the US Subsidiary in filing Tax Returns.
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SCHEDULE 7
LIMITATION OF LIABILITY
1. GENERAL LIMITATIONS
The Principal Sellers shall not be liable under the Warranties to the
extent that:
1.1 the facts which might result in a claim or possible claim under the
Warranties were Disclosed;
1.2 the subject of the claim is specifically provided for in the Audited
Financial Statements, the Unaudited Combined Results or the JCI
Accounts, and, in the case of the Audited Financial Statements and the
JCI Accounts,
1.3 a claim under the Warranties arises or is increased:-
1.3.1 as a result of an act or omission on the part of the Principal
Sellers occurring at the request of or with the written consent
of the Buyer after Completion;
1.3.2 as a result of an act or omission of the Company or any of the
Subsidiaries after Completion (otherwise than in the ordinary
course of trading);
1.3.3 wholly or partly as a result of the passing or coming into force
of or any change in any enactment, law, regulation, directive,
requirement or any published practice of any government,
government department or agency or regulatory body (including
extra-statutory concessions of the Inland Revenue) after
Completion, whether or not having retrospective effect;
1.3.4 as a result of an increase in rates of Taxation after the
Accounts Date or any provision or reserve in the Unaudited
Combined Results being insufficient as a result of any increase
in rates of Taxation after the Accounts Date;
1.4 the Buyer has recovered any amount under the Tax Covenant or otherwise
under this Agreement in respect of the same loss, damage or deficiency;
1.5 that it arises as a result of any change in the accounting policy or
practice or in the accounting reference date of the Company or the
Subsidiaries after Completion.
2. QUANTUM
2.1 The liability of the Principal Sellers in respect of any claim under the
Warranties (other than the Tax Covenant) shall not arise unless and
until the amount of such claim when aggregated with the amount of any
other claim made against the Sellers under this Agreement or under the
Tax Covenant exceeds Pound Sterling100,000 in which event all of such
claim or claims (and not just the excess) shall be recoverable and no
minimum shall apply to any subsequent claims.
2.2 The individual liability of each of the Principal Sellers in respect of
any claim under the Warranties and/or the Tax Covenant shall not, when
aggregated with the amount of all other claims under the Warranties and
under the Tax Covenant, exceed an amount equal to the aggregate of:
(a) the cash amount received by that Principal Seller;
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(b) the principal amount of the Loan Notes issued to that
Principal Seller; and
(c) the sterling equivalent (as determined by reference to the
spot rate of exchange of Barclays Bank PLC) of the market
value of the Consideration Stock received by that
Principal Seller as at the close of trading on the date
prior to the date on which such claim was first notified.
3. TIME LIMITS
3.1 The liability of the Principal Sellers in respect of any claim under the
Warranties and the Tax Covenant shall cease:
3.1.1 in the case of any claim the subject matter of which relates to
Taxation, three months after the publication of the sixth
consolidated audited statutory accounts of the Group following
Completion; and
3.1.2 in the case of any other claim, on the second anniversary of the
Completion Date
except in respect of matters which before that period expires
have been the subject of a bona fide written claim made by or on
behalf of the Buyer to the Principal Sellers giving reasonable
details of all material aspects of the claim, including the
Buyer's bona fide estimate of the amount.
3.2 Any such claim shall (if it has not previously been satisfied, settled
or withdrawn) be deemed to have been withdrawn unless legal proceedings
in respect of it have been commenced by being issued and by all
commercially reasonable efforts being made to serve the same within 12
months of such notification to the Principal Sellers.
4. THIRD PARTIES
Where the Buyer or the Company or a Subsidiary is entitled to recover an
amount from a third party, including an insurer, which may reduce the
amount payable by the Principal Sellers in respect of a claim under the
Warranties or the Tax Covenant, the Buyer, the Company or Subsidiary (as
the case may be) shall:
4.1 make all efforts which are commercially reasonable to pursue such claim
against such third party; and
4.2 where the amount claimed has been recovered from the Principal Sellers,
reimburse to the Principal Sellers the amount by which the amount of the
claim for which the Principal Sellers are liable is reduced by any
amount recovered from such third party, subject to the deduction of the
reasonable costs and expenses of recovering such amount,
PROVIDED THAT
(i) the ability to claim any such amount from the Principal Sellers
shall not be conditional upon the Buyer, Company or Subsidiary,
as the case may be, having first exhausted its claim against such
third party; and
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(ii) the Buyer will procure that, as a minimum, the level of insurance
cover currently in place for the Company and the Subsidiaries at
the date of this Agreement is maintained following Completion.
5. CLAIMS
Upon the Buyer becoming aware of an event whereby it appears that a
claim will or is likely to be made under the Warranties or the Tax
Covenant, the Buyer will:-
5.1 as soon as practicable notify the Principal Sellers in writing of any
claim and of any matter which may give rise to a claim;
5.2 disclose in writing to the Principal Sellers such information and
documents relating to any claim or matter which may give rise to a claim
as the Principal Sellers may reasonably request and give the Principal
Sellers and their professional advisers reasonable access to any
documents and records within the power, possession or control of the
Buyer and/or of the Company or other relevant Group Company to enable
the Principal Sellers and their professional advisers to examine such
documents and records and to take copies or photographs thereof at their
own expense; and
5.3 not make any admission of liability, agreement or compromise with any
person in relation thereto without giving prior notification thereof to
the Principal Sellers.
6. COMMON LAW
Nothing herein shall in any way diminish the Buyer's or the Company's or
any other Group Company's common law obligation to mitigate its loss.
7. CONTINGENT LOSS
If any potential claim shall arise by reason of a liability of the
Company or any other Group Company which is contingent only, then the
Principal Sellers shall not be under any obligation to make any payment
pursuant to such claim until such time as the contingent liability
ceases to be contingent and becomes actual.
8. SAME SUBJECT MATTER
Payment of any claim shall to the extent of such payment satisfy and
preclude any other claim which is capable of being made in respect of
the same subject matter.
9. OVERRIDING PROVISIONS
The provisions of this Schedule apply notwithstanding any other
provision of this Agreement or the Tax Covenant to the contrary and will
not cease to have effect in consequence of any rescission or termination
by the Buyer of any other provisions of this Agreement.
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SCHEDULE 8
TAX COVENANT
1. DEFINITIONS AND INTERPRETATION
1.1 In this Schedule:-
"CLAIM" includes any claim, assessment, notice, demand, letter,
direction, order, counterclaim or other document issued or made, or
action taken by or on behalf of any Tax Authority (including any action
deemed to be a self-assessment) or any other person including the
Company by virtue of which the Company has, or is alleged to have, a
liability to Tax, or from which it appears that the Company has, or will
or may have, a liability to Tax, or from which it is sought to impose
upon the Company a liability to Tax (whether in each case the same is
primarily payable by the Company and whether or not the Company shall or
may have any right of reimbursement against any other person) or is
denied or sought to be denied any Relief;
"COMPANY" means Xxxxx Chromatography Limited and its successors and
assigns and each of the Subsidiaries and each of their successors and
assigns, as the case may be;
"EVENT" includes any event, transaction, act, omission, or occurrence of
whatsoever nature including receipt, or accrual of any income,
distribution or deemed distribution or failure to distribute,
acquisition, disposal, transfer, payment, loan or advance, the death of
any person, the change in residence of any person, entry into the
Agreement, Completion, the Reorganisation or the inclusion of a company
within a group of companies for any purpose;
"GROUP RELIEF" means (i) relief for trading losses and other amounts by
way of group relief under Sections 402 to 413 of the Taxes Act; (ii) the
surrender of advance corporation tax under Section 240 of the Taxes Act;
and (iii) the surrender of tax refunds under Section 102 of the Finance
Xxx 0000; or, in each case, the nearest equivalent under the laws of any
other jurisdiction;
"RELIEF" includes any relief, loss, allowance, exemption, set-off,
deduction or credit claimed or available in respect of any Tax, or any
set-off or deduction in computing income, profits or gains for the
purposes of any Tax, whether pursuant to any legislation or otherwise;
1.2 References to an Event occurring on or before any date or on or before
other Events shall be deemed to include any combination of two or more
Events the first of which has taken place or took place on or before
that date or on or before that other Event and shall include any Event
which is deemed for Tax purposes to have occurred prior to such date.
1.3 Words and expressions (if any) which are defined in the Agreement and
which are not expressly defined in this Schedule, and rules of
interpretation which are provided for in the Agreement and which are not
otherwise expressly provided for in this Schedule, shall have the same
meaning in and shall apply to this Schedule and shall be deemed to be
incorporated in this Schedule respectively.
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1.4 Words and expressions (if any) neither defined in this Schedule nor in
the Agreement but which are defined or used in any legislation relating
to Tax which is relevant in the context shall have the same meaning in
this Schedule as they have in such legislation.
1.5 References to statutes or statutory provisions shall be construed as
references to such provisions (including any subordinate legislation
made thereunder) as notified or reenacted from time to time and any
prior enactment thereof.
1.6 References to income, profits or gains accrued, or being earned or
received, on or before a particular period shall include any profits
deemed for Tax purposes to have accrued, or to have been earned or
received, on or before that date or in respect of that period.
1.7 References to "income, profits or gains" shall include any such income,
profits or gains as are deemed to be or treated as earned accrued or
received and receipts, value and any other criterion used in
establishing the incidence of any Tax or measure in establishing the
amount of any Tax.
1.8 Unless otherwise expressly stated the rule of construction known as "the
ejusdem generis rule" shall not apply in interpreting this Schedule so
that words or phrases of a generally descriptive nature shall not be
given a restrictive meaning by reason only of the fact that they are
preceded by more specific words or phrases;
2. COVENANT
2.1 Subject to clause 3, the Principal Sellers hereby jointly and severally
agree with the Buyer to pay to the Buyer an amount equal to:-
2.1.1 any liability to Tax of the Company which arises as a consequence
of or by reference to:-
(a) any Event occurring on or before Completion; or
(b) any income, profits or gains accrued, or earned or
received, on or before Completion,
2.1.2 any reasonable costs and expenses (including legal costs on a
full indemnity basis) incurred or payable by the Buyer or the
Company in connection with any matter in respect of which a claim
is made under this Schedule;
2.1.3 any liability to Tax of the Company which would have been saved
but for the loss, reduction, modification, setting-off or
cancellation of some Relief in consequence of an Event occurring
on or before Completion;
2.1.4 any liability to Tax of the Company which arises in consequence
of an Event occurring on or before Completion and which would
have been payable but for the utilisation or set-off of some
Relief or right to repayment where the Relief or right to
repayment arises in respect of an Event occurring after
Completion;
2.1.5 any liability to Tax of the Company arising in consequence of an
Event occurring after Completion and for which the Company is
liable as a result of having been a member of any group for Tax
purposes at any time before Completion;
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2.1.6 any Tax which would have been repaid to the Company but for the
loss, reduction, set-off or cancellation of any right to
repayment of Tax in consequence of an Event occurring on or
before Completion;
2.1.7 (a) any liability of the Company (other than to any other
Company) to repay in whole or in part any payment for
Group Relief or surrender of advance corporation tax
received pursuant to an agreement or arrangement entered
into on or before Completion; or
(b) any payment which a Company fails to obtain for Group
Relief which was taken into account as an asset in the
Unaudited Combined Results;
2.1.8 any amount the Company is obliged to pay by way of reimbursement,
recharge, indemnity, covenant, guarantee, damages or charge
connected in any way with Tax:-
(a) in respect of or arising from any Event effected or deemed
to have been effected on or before Completion; or
(b) by reference to any profits earned accrued or received on
or before Completion; and
2.1.9 any depletion in or reduction in value of the assets or increase
in the liabilities of the Buyer and the Company as a result of
any inheritance tax which:-
(a) is at Completion a charge on or gives rise to a power to
sell, mortgage or charge any of the shares or assets of
the Company; or
(b) after Completion becomes a charge on or gives rise to a
power to sell, mortgage or charge any of the shares or
assets of the Company, which is a liability in respect of
inheritance tax payable as a consequence of the death of
any person (whenever occurring) within seven years after a
transfer of value, occurring on or before Completion; or
(c) arises as a consequence of a transfer of value occurring
on or before Completion (whether or not in conjunction
with the death of any person whenever occurring) made by
or to the Company;
2.1.10 any liability to tax which arises as a result of any Event which
occurs after Completion pursuant to a legally binding obligation
(whether or not conditional) entered into by the Company on or
before Completion otherwise than in the ordinary course of
business of the Company;
2.1.11 any liability to tax in respect of a chargeable gain which arises
as a result of the disposal after Completion of any asset
acquired by the Company on or before Completion, to the extent
that such liability would not have arisen if the expenditure
allowable under section 38(1)(a) TCGA in respect of the asset
(ignoring any other Relief) had not been less than the value of
the asset after deducting any revaluation reserve shown in the
Unaudited Combined Results;
2.1.12 any liability of the Company to make a payment to any person
(other than another Company) under any agreement or arrangement
relating to any VAT group, in either case entered into by the
Company on or before Completion;
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2.1.13 any liability to tax which arises under section 767A or 767AA
ICTA, section 132 FA 1988, section 179, 189, 190 or 191 TCGA,
Schedule 28 FA2000 as a result of the combined effect of two or
more Events, the first of which occurred on or before Completion;
2.1.14 any liability to tax which arises in respect of a chargeable gain
as a result of the Company ceasing after Completion to use an
asset acquired on or before Completion for the purposes of a
trade, as mentioned in section 154(2)(b) TCGA, or as a result of
the expiry after Completion of a period of ten years beginning on
or before Completion with the acquisition of an asset, as
mentioned in section 154(2)(c) TCGA;
2.2 For avoidance of doubt, any payment made by the Company or the Buyer to
discharge or remove any power to sell, mortgage or charge shall give
rise to a liability and notwithstanding any provision of this Schedule
the Company or the Buyer may disregard any right to pay any Tax in
instalments in discharging or removing a charge or power.
2.3 Section 213 of the Inheritance Tax Xxx 0000 shall not apply in relation
to any payments to be made by the Principal Sellers under this Schedule.
2.4 There shall be treated as an amount of Tax which would for the purposes
of clause 2.1.3 have been saved but for the loss, reduction,
modification, setting-off or cancellation of some Relief, the amount of
Tax which would have been saved by the Relief lost, reduced, modified,
set-off or cancelled applying the relevant rates of Tax in force or
(where the rate has at the relevant time not been fixed) at the last
known rate, in the earliest period in respect of which Tax becomes
payable which would not have been payable if the Relief had not been
lost, reduced, modified, set-off or cancelled.
2.5 Each of the covenants contained in clause 2.1 shall be construed as
giving rise to separate and independent obligations and shall not be
restricted by the other save that (for the avoidance of doubt) any
payment by the Principal Sellers in respect of a liability under one
covenant shall pro tanto discharge any liability under the other so far
as it arises from the same subject matter.
3. LIMITATIONS
The Principal Sellers shall not be liable under clause 2 to the extent
that:
3.1 the loss occasioned has been recovered pursuant to a claim under the
Warranties in the Agreement;
3.2 such liability would not have arisen but for any Event occurring in the
ordinary course of trade of the Company between the Accounts Date and
Completion;
3.3 such liability would not have arisen but for a change in legislation
(including but not limited to an increase in rates of Taxation) or in
the published practice of any Taxation Authority announced or introduced
after Completion but with retrospective effect; or
3.4 such liability would not have arisen but for a voluntary act,
transaction or omission of the Company or the Buyer after Completion:-
3.4.1 otherwise than pursuant to a legally binding obligation entered
into on or before Completion or imposed by any legislation; and
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3.4.2 other than in the ordinary course of business or in relation to
or arising from the Reorganisation; or
3.5 such liability would not have arisen but for a disclaimer by the Company
after Completion of capital allowances available to and claimed by the
Company before Completion in respect of any period ended on or before
the Accounts Date;
and for the avoidance of doubt the following shall not be regarded as an
Event in the ordinary course of trade of the Company:
(a) any Event giving rise to Taxation arising as a result of the
application either of any anti-avoidance provisions contained in
any Taxation Statute or of any principles established in case law
concerning anti-avoidance;
(b) any dividend, distribution or deemed distribution;
(c) any acquisition, disposal or supply or the deemed acquisition,
disposal or supply of any assets, goods, services or business
facility of any kind (including a loan of money or the letting,
hiring or licensing of any tangible or intangible property) for a
consideration deemed for Taxation purposes to be different from
that (if any) actually received, but only insofar as such
Taxation is attributable to the difference between the
consideration actually received and the consideration deemed for
Taxation purposes to have been received;
(d) any Event giving rise to Taxation arising as a result of the
Company being liable to pay Taxation primarily chargeable against
or attributable to some other person;
(e) any failure duly to deduct, charge, recover or account for
Taxation;
(f) any Event giving rise to an amount payable to HM Customs and
Excise by the Company as a result of Part XV of the Value Added
Tax Regulations 1995 or equivalent provisions in any other
relevant jurisdiction; and
(g) the Reorganisation.
4. CONDUCT OF CLAIMS
4.1 If the Buyer or the Company becomes aware of any Claim, the Buyer shall
or shall procure that the Company as soon as reasonably practicable give
notice of such Claim to the Principal Sellers PROVIDED that the giving
of such notice shall not be a condition precedent to the liability of
the Principal Sellers under this Schedule.
4.2 If the Principal Sellers shall first indemnify and secure the Company
and the Buyer to their reasonable satisfaction against any Tax,
additional Tax, losses, fines, penalties, interest, charges, damages,
costs and expenses, the Company and the Buyer shall subject to clause
4.3 take such action as the Principal Sellers may reasonably request to
avoid, dispute, resist, appeal, compromise, or defend such Claim.
4.3 Neither the Buyer nor the Company shall be obliged to appeal against any
Claim if, having given the Principal Sellers notice of the receipt of
that Claim, it has not within ten Business Days received instructions in
writing from the Principal Sellers in accordance with the preceding
provisions of this clause to make that appeal.
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4.4 Neither the Buyer nor the Company shall be obliged to take any action or
further action under this clause in respect of any Claim if, in the
reasonable opinion of the Buyer, either the Principal Sellers, or the
Company prior to its being in the ownership of the Buyer, have committed
acts or omissions which may constitute fraudulent or negligent conduct
(within Section 36 Taxes Management Xxx 0000 or Finance Xxx 0000
Schedule 18 Paragraph 46).
4.5 Neither the Buyer nor the Company shall be required to take any action
which either interferes with the normal course of its business or which
in its reasonable opinion is likely to prejudice its business or its
relationship with any Tax Authority or result in the Buyer or any
company which forms part of the Buyer's group incurring a Liability to
Tax or an increased Liability to Tax.
4.6 Neither the Buyer nor the Company shall be obliged to take any action
under this clause 4 which involves contesting any Claim before any court
or other appellate body (excluding the Tax Authority demanding the Tax
in question) unless the Principal Sellers furnishes the Buyer with the
written opinion of tax counsel of at least five years' standing to the
effect that an appeal against the Claim in question will, on the balance
of probabilities, be won.
4.7 The Buyer and the Company shall be at liberty, without reference to the
Principal Sellers, to admit, compromise, settle, discharge or otherwise
deal with any Claim after whichever is the earliest of:-
4.7.1 the Buyer or the Company being notified by the Principal Sellers
that they consider the Claim should no longer be resisted;
4.7.2 the expiry of a period of ten Business Days following the service
of a notice by the Buyer or the Company on the Principal Sellers,
requiring the Principal Sellers to clarify or explain the terms
of any request made under clause 4.2 during which period no such
clarification or explanation has been received by the Buyer or
the Company; and
4.7.3 if appropriate, the expiration of any period prescribed by
applicable legislation for the making of an appeal against either
the Claim or the decision of any court or tribunal in respect of
any such Claim, as the case may be.
4.8 The Principal Sellers shall be bound to accept for the purposes of this
Schedule any admission, compromise, settlement or discharge of any Claim
and the outcome of any proceedings relating thereto made or arrived at
in accordance with the provisions of this clause 4.
5. DUE DATE FOR PAYMENT
5.1 The Principal Sellers shall pay to the Buyer any payment required to be
made by them in cleared funds:-
5.1.1 in a case that involves an actual payment of Tax by the Company,
seven Business Days immediately before the last date on which the
Company would have had to pay to the relevant Tax Authority the
Tax that has given rise to the Covenantor's liability under this
Schedule in order to avoid incurring a liability to interest or a
charge or penalty in respect of that Liability to Tax; or
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5.1.2 to the extent the claim under this Schedule involves the denial
or loss or set-off in whole or in part of any right to repayment
of Tax, the date which is or would have been the "material date"
for the purposes of Sections 825 and 826 of the Taxes Act or, in
the case where those sections do not apply to the repayment in
question, the date on which such Tax would otherwise have been
repaid;
5.1.3 to the extent the claim under this Schedule involves the denial,
loss, reduction, cancellation, modification or set-off in whole
or in part of any Relief the seventh Business Day prior to the
date on which the Tax, which would have been saved but for such
denial, loss reduction, modification, cancellation or set-off,
becomes due and payable;
5.1.4 in the case of a liability under clause 2.1.4 the date which
would have been the due date in clause 5.1.1 but for the
availability of the Relief; and
5.1.5 in any other case that involves an actual payment by the Company,
seven Business Days immediately before the last date on which the
Company would have had to pay to the relevant person the amount
that has given rise to the Covenantor's liability under this
Schedule in order to avoid incurring a liability to interest in
respect of that liability.
5.2 If any payment required to be made by the Principal Sellers under this
Schedule is not made by the due date then, except to the extent that the
Principal Sellers' liability under clause 2 compensates the Company for
the late payment by virtue of its extending to interest and penalties,
that payment shall carry interest from that due date until the date when
the payment is actually made at the rate of 2 per cent above the base
rate from time to time of Barclays Bank PLC.
5.3 The Principal Sellers shall pay to the Company or the Buyer as the case
may be any amount required to be paid by them pursuant to clause 2.1
within seven Business Days after the Company or the Buyer notifies the
Principal Sellers in writing that it has incurred or suffered such costs
or expenses.
5.4 Notice of the amount of the payment required to be made by the Principal
Sellers under clause 5.3 and the due date for payment shall be given in
writing by the Company or the Buyer and shall (save for manifest error)
be conclusive and binding on the Principal Sellers.
6. TAXES AND DEDUCTIONS FROM PAYMENTS
6.1 All sums payable by the Principal Sellers to the Buyer under this
Schedule shall be paid free and clear of all deductions or withholdings
whatsoever, save only as may be required by law.
6.2 If any deduction or withholding in respect of Tax or otherwise is
required by law to be made from any such sums, the Principal Sellers
shall pay to the Buyer such greater sum as will, after deduction or
withholding as is required to be made has been made, leave the Buyer
with the same amount as it would have been entitled to receive in the
absence of any such requirement to make a deduction or withholding.
6.3 If any sum ("the first sum") payable by the Principal Sellers to the
Buyer under this Schedule shall or in the reasonable opinion of the
Buyer be subject to Tax in the hands
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of the Buyer or would have been taxable in the hands of the Buyer other
than a reduction in the base cost to the Buyer of the shares in the
Company, then the Principal Sellers shall pay to the Buyer such
additional sum or sums as will after such Tax (and any Tax on such
additional sum or sums) leave the Buyer with such amount as the Buyer
would have been left with had the first sum not been subject to Tax in
the hands of the Buyer.
6.4 All sums payable by the Principal Sellers under this Schedule are to be
paid in the currency or currencies appropriate to the Claim as a result
of which the liability to make a payment of Tax has arisen.
6.5 The Buyer may direct the Principal Sellers to pay to the Company any
sums due to the Buyer under this Schedule and such payment shall be
treated as a payment to the Buyer and not a payment to the Company.
7. SAVINGS
7.1 If (whether or not at the request and expense of the Principal Sellers)
the auditors of the Company certify that the Company or the Buyer has
obtained any Saving, the Buyer shall as soon as reasonably practicable
thereafter pay to the Principal Sellers the amount of such Saving (as
certified by the auditors).
7.2 Upon the Company or the Buyer becoming aware that the Company or the
Buyer has obtained or may obtain a Saving (on the assumption that
payment has been made under clause 2 (whether or not that is the case))
the Buyer shall as soon as reasonably practicable give notice of that
fact to the Principal Sellers and thereafter take and procure the taking
by the Company of all lawful and all reasonable steps to obtain such
saving as soon as reasonably practicable.
7.3 In certifying any Saving pursuant to clause 7.1, the Company's auditors
shall act as experts and not as arbitrators and their certificate shall
(in the absence of manifest error) be conclusive and binding on all
concerned.
7.4 "Saving" means the reduction of any liability of the Company to Tax by
virtue of the set-off against such liability or against any income,
profits or gains of any Relief arising as a result of a Tax liability in
respect of which the Principal Sellers have made payment under the
Warranties and if and to the extent that:-
7.4.1 any expenditure by the Company or provision or reserve for or on
account of any matter has been treated as deductible or allowable
for Tax purposes in computing any provision, reserve or
allowances for Tax in the Unaudited Combined Results; and
7.4.2 a liability dealt with under this Schedule arises or may arise
because the expenditure, provision or reserve or a part of it is
not deductible in respect of the accounting period in which it
was treated as deductible or available but is deductible or
available in another accounting period.
The value to the Company of the deduction or allowance obtained in the
relevant accounting period in respect of the expenditure, provision or
reserve whether by way of a reduced Tax liability, an amount available
for surrender by way of Relief or otherwise is to be treated as a
"Saving" for the purposes of this clause 7.
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7.5 If and to the extent that:-
(a) any income, profits or gains of the Company not received by the
Company are found to be subject to Tax; and
(b) the Tax gives or may give rise to a liability of the Principal
Sellers under this Schedule; and
(c) the Company subsequently receives the income, profits or gains
and is not subject to Tax,
the amount of Tax which would otherwise have been payable in respect of
the income, profits or gains is to be treated as a Saving for the
purpose of this Schedule.
8. RECOVERY FROM THIRD PARTIES
8.1 If the Company or the Buyer recovers or becomes aware that it is
entitled to recover from any third party (including but not limited to
any Tax authority) any amount which is referable to a Tax liability in
respect of which the Principal Sellers are liable hereunder, the Buyer
shall as soon as reasonably practicable give notice of that fact to the
Principal Sellers and shall take or procure that the Company takes (at
the Principal Sellers' expense and provided that the Principal Sellers
secure the Buyer and the Company to the reasonable satisfaction of the
Buyer against all losses, costs, damages, expenses and tax relating to
that recovery which may be incurred thereby) any lawful and reasonable
action necessary to effect such recovery which the Principal Sellers may
reasonably request in writing, and the Principal Sellers shall in the
event of the Principal Sellers having made payment under clause 2 repay
to the Principal Sellers the lesser of:-
(a) the amount so recovered together with any interest (net of Tax)
or repayment supplement received in respect thereof (net of any
agreed losses, costs, damages, expenses and tax relating to the
amount recovered not previously recovered from the Principal
Sellers); and
(b) the amount paid by the Principal Sellers under clause 2 in
respect of the Tax liability or Claim in question.
(c) If the amount provided for under clause 8.1(a) exceeds that under
clause 8.1(b), the amount of the excess shall be set against and
so shall reduce or eliminate any liability of the Principal
Sellers under clause 2 which arises after such recovery.
9. OVER-PROVISIONS
9.1 If (at the request and expense of the Principal Sellers) the auditors
for the time being of the Company certify that any provision in the
Unaudited Combined Results for any Tax liability has proved to be an
over-provision, the Buyer shall as soon as reasonably practicable
thereafter repay to the Principal Sellers the lesser of:-
(a) the amount over-provided (as certified by the auditors); and
(b) the aggregate amount (if any) paid by the Principal Sellers under
clause 2 prior to the certification of the over-provision.
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9.2 If upon certification of an over-provision by the auditors pursuant to
this clause 9 the amount mentioned in clause 9.1(a) exceeds the amount
mentioned in clause 9.1(b), the amount of the excess shall be set
against (and so shall reduce or eliminate) any liability of the
Principal Sellers under clause 2 which arises after such certification,
as and when such liability arises.
9.3 Upon the Company or the Buyer becoming aware that there has or may have
been an over-provision within the meaning of this clause 9, the Buyer
shall as soon as reasonably practicable give notice of that fact to the
Principal Sellers.
9.4 In certifying any over-provision pursuant to this clause 9, the auditors
for the time being of the Company shall act as experts and not as
arbitrators and their certificate shall (in the absence of manifest
error) be conclusive and binding on all concerned.
10. STAMP DUTY
The Principal Sellers hereby jointly and severally warrant to the Buyer
that all documents forming part of the title to any asset of a Company
or which a Company may wish to enforce or produce in evidence are duly
stamped and have where appropriate been adjudicated. The Principal
Sellers hereby jointly and severally agree that in the event of a breach
of this warranty they shall pay to the Buyer by way of liquidated
damages an amount equal to any unpaid stamp duty and any interest or
penalties payable in respect thereof.
11. BUYER'S COVENANT
The Buyer covenants with the Principal Sellers to pay to the Principal
Sellers an amount equal to any tax for which the Principal Sellers shall
have become liable pursuant to Section 767A, 767AA or 767B of the Taxes
Act to the extent that such tax liability is not one which would allow
it to be claimed by the Buyer from the Principal Sellers under clause 2
of this Schedule.
12. TIME LIMIT
The liability of the Principal Sellers under this Schedule shall cease
three months after the publication of the sixth consolidated audited
statutory accounts of the Group following Completion except in respect
of matters which have been the subject of a written claim made within
the said period by the Buyer to any of the Principal Sellers unless the
claim in question has arisen by reason of fraud, wilful concealment,
dishonesty or deliberate non-disclosure on the part of any of the
Principal Sellers or, prior to the Completion Date, on the part of any
member of the Group or on the part of any officer or representative of
any member of the Group in which event there shall be no contractual
limit on the time period within which such claim may be brought.
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SCHEDULE 9
LEGAL OPINION FROM SELLERS' LEGAL ADVISERS
[LETTERHEAD OF XXXXX XXXXX]
[ ] February 2002
Argonaut Technologies, Inc.
0000 Xxxxx Xxxxx
Xxxxxx Xxxx
Xxxxxxxxxx 00000
XXX
Dear Sirs
XXXXX CHROMATOGRAPHY LIMITED ("THE COMPANY")
We refer to the Agreement for the sale and purchase of the entire issued share
capital of the Company dated [ ], 2002 (the "Agreement"), entered into between
Argonaut Technologies, Inc, a Delaware corporation ("the Buyer") and the Sellers
(as defined therein).
We have represented the Sellers in connection with the negotiation of the
Agreement, the agreements and instruments executed in connection therewith
except the Reorganisation in respect of which we acted for the Company and not
any of the Sellers (collectively, together with the Agreement, the "Transaction
Documents") and, in each case, the transactions contemplated thereby ("the
Transactions"). This opinion is furnished to you pursuant to clause 4.1.11 of
the Agreement. Unless otherwise defined herein, all terms used herein have the
meanings assigned to them in the Agreement.
For the purpose of giving the opinions contained in this letter we have examined
originals or copies of such corporate records of the Company and such other
documents, including the Transaction Documents, and conducted such searches, in
each case as are necessary or advisable including, without limitation, the
following:
a search in respect of the Company's file at the Companies Registry carried out
on [ ] February 2002;
the statutory books and records of the Company; and
a search of the Central Index of Winding-Up petitions in relation to the Company
conducted on [ ] February 2002.
In giving the opinions herein we have assumed:
a) the genuineness of all signatures on original documents examined by us;
b) the authenticity and completeness of all documents submitted to us as
originals;
c) the conformity to original documents of all copies submitted to us;
d) the due authorisation, execution and delivery by the Buyer of each of
the Transaction Documents to which it is a party, that the Buyer had the
requisite power and authority to
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enter into and perform all of its obligations thereunder, and that each
such document constitutes legal, valid and binding obligations of the
Buyer;
e) the due formation and valid existence of the Buyer under the laws of its
jurisdiction of incorporation; and
f) that the Company is solvent, has not passed any voluntary winding up
resolution or resolution to appoint a liquidator, that no petition has
been presented to or order made by any competent court for the winding
up of the Company and that no resolution has been passed or any petition
presented to or order made by any competent court in connection with the
appointment of an administrator in relation to the Company.
We are solicitors qualified in England and Wales and express no opinion herein
concerning laws other than the laws of England and Wales. We express no opinion
as to matters of fact, and our opinions are to be construed in accordance with,
and governed by, the laws of England and Wales.
All references herein to our "knowledge" means the actual present knowledge of
the lawyers of this office working on the Transactions after making reasonable
enquiries of the directors of the Company and having conducted the searches
listed above.
On the basis of the foregoing examinations and assumptions, and subject to the
qualifications, and reservations stated herein, we are of the opinion that:
1. the Company is duly incorporated, validly existing and in good standing
as a private company with limited liability under the laws of England
and Wales;
2. the Company has full power and authority to conduct its business as it
is now being conducted and to own, operate or lease the properties and
assets it currently owns, operates and leases;
3. as at the Completion Date, each Seller is the sole registered owner of
that number of Shares as are shown against his name in Schedule 1 of the
Agreement;
4. as at the Completion Date, the authorised share capital of the Company
consists of Pound Sterling500,000 divided into 500,000 Shares, and the
issued share capital of the Company consists of Pound Sterling179,018
divided into 179,018 Shares. All of the issued share capital of the
Company has been duly authorised and validly issued, and is fully paid
and not subject to any call by, or forfeiture to, the Company. None of
the Shares has been issued in violation of any pre-emptive rights,
rights of first refusal or similar rights, in each case whether
statutory or contractual. To our knowledge the Company has no obligation
to issue any further Shares or other securities;
5. the Company is the registered and beneficial owner of the entire issued
share capital of the UK Subsidiary and of the US Subsidiary and, to our
knowledge, there is no Encumbrance on, over or affecting any of the
shares in the UK Subsidiary and/or the US Subsidiary, other than those
specified in Schedule 2 of the Agreement;
6. the execution and delivery of the Transaction Documents, and the
consummation of the Transactions do not and will not:
(i) conflict with or result in the breach of or constitute a default,
on the part of the Company, under the Company's memorandum and
articles of association; or
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(ii) to our knowledge, conflict with, violate or result in a breach of
any law applicable to the Company;
7. no consent, approval, order or authorisation of, or declaration, filing
or registration with (except for filing and registration with the
Registrar of Companies and submission of stock transfer forms to the
Inland Revenue), any governmental authority is required to be made or
obtained by the Company in connection with the authorisation, execution,
delivery or performance of any of the Transaction Documents and/or the
Transactions.
The opinions expressed herein are subject to the following reservations and
qualifications:
(i) the obligations assumed by the Sellers under the Transaction
Documents to which they, respectively, are a party, are subject
to all bankruptcy, insolvency, liquidation, moratorium,
reorganisation and other laws of general application relating to
or affecting the rights of creditors;
(ii) an order for specific performance and an injunction are each a
discretionary remedy and accordingly an English court might
refuse to make such an order and grant an injunction and/or
instead make an award of damages if such a remedy is sought.
Furthermore, the exercise of any remedies will always be subject
to the general legal and equitable principles of the laws of
England and Wales and the general supervisory powers and
discretion of the English courts. We express no opinion as to
whether any equitable remedies, and in particular an order for
specific performance or an injunction would be available;
(iii) we express no opinion on any provision in any of the Transaction
Documents requiring written amendments and waivers of any of the
provisions thereof in so far as it suggests that oral or other
modifications, amendments or waivers could not be effectively
agreed upon or granted by or between the parties or implied by
the course of conduct of the parties.
The opinions expressed herein are given as of the date hereof, are solely for
your benefit in connection with the execution and delivery of the Transaction
Documents and the consummation of the Transactions, and may not be relied upon
by any other person or by you in any other context or for any other purpose.
Yours faithfully
XXXXX XXXXX
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SCHEDULE 10
INDIVIDUAL PARTIES TO OFFERS OF EMPLOYMENT
NAME
Xxxxx Xxxxx
Xxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxxxx Xxxxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx Xxxxx
Xxxxx Gairlock
Xxxxxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxx Xxxxx
Xxxxx Wharburton
Xxxx Xxxxxxx
Xxxx Xxxxxxxx
Xxxxx Small
Xxxxxxxx Xxxxx
Xxxxxx Xxxxxxx
Xxxx Xxxxxxx
-114-
EXECUTED AS A DEED BY )
)
ARGONAUT TECHNOLOGIES, INC. )
Acting by: )
EXECUTED AS A DEED BY )
)
SORBENT AB )
Acting by Xxxxx Xxxxx under a power of ) _____________________________
attorney dated 5 September 2001 ) as attorney for
in the presence of: ) Sorbent AB
)
EXECUTED AS A DEED BY )
)
NIVEVE AG )
Acting by Xxxxxxx Xxxxxxxxx under a power of) _____________________________
attorney dated 5 September 2001 ) as attorney for
in the presence of: ) Niveve AG
)
EXECUTED AS A DEED BY )
)
PROPEX ENTERPRISES AG )
Acting by Xxxxxxx Xxxxxxxxx under a power of) _____________________________
attorney dated 5 September 2001 ) as attorney for
in the presence of: ) Propex Enterprises AG
)
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EXECUTED AS A DEED BY )
)
UNIFLEX CO. LTD )
Acting by Xxxxx Xxxxx under a power of ) _____________________________
attorney dated 5 September 2001 ) as attorney for
in the presence of: ) Uniflex Co. Ltd
)
EXECUTED AS A DEED BY )
)
STEPBIO SRL )
Acting by Xxxxx Xxxxx under a power of ) _____________________________
attorney dated 5 September 2001 ) as attorney for
in the presence of: ) Stepbio SRL
)
SIGNED AS A DEED by )
THE TRUSTEES OF THE )
XXXXXXX XXXXX XXXXX 2002 TRUST )
Acting by Xxxxx Xxxxx under a power of ) _____________________________
attorney dated 4 February 2002 ) as attorney for
in the presence of: ) The Trustees of the
) Xxxxxxx Xxxxx Xxxxx 2002
Trust
SIGNED AS A DEED by )
XXXXXXX XXXXX XXXXX )
in the presence of )
)
)
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SIGNED AS A DEED by )
XXXXXXXXX XXXXX )
Acting by Xxxxx Xxxxx under a power of ) _____________________________
attorney dated 28 January 2002 ) as attorney for
in the presence of: ) Xxxxxxxxx Xxxxx
)
SIGNED AS A DEED by )
THE TRUSTEES OF THE )
XXXX XXXXXX 2002 TRUST )
Acting by Xxxxx Xxxxx under a power of ) _____________________________
attorney dated 2 February 2002 ) as attorney for
in the presence of: ) The Trustees of the
) Xxxx Xxxxxx 2002 Trust
SIGNED AS A DEED by )
XXXX XXXXXX )
in the presence of )
)
)
SIGNED AS A DEED by )
XXXXX XXXXXX )
Acting by Xxxxx Xxxxx under a power of ) _____________________________
attorney dated 28 January 2002 ) as attorney for
in the presence of: ) Xxxxx Xxxxxx
)
SIGNED AS A DEED by )
THE TRUSTEES OF THE )
XXXXXX XXXXXX 2002 TRUST )
Acting by Xxxxx Xxxxx under a power of ) _____________________________
attorney dated 2 February 2002 ) as attorney for
in the presence of: ) The Trustees of the
) Xxxxxx Xxxxxx 2002 Trust
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SIGNED AS A DEED by )
XXXXXX XXXXXX )
in the presence of )
)
)
SIGNED AS A DEED by )
XXXXX XXXXXX )
Acting by Xxxxx Xxxxx under a power of ) _____________________________
attorney dated 28 January 2002 ) as attorney for
in the presence of: ) Xxxxx Xxxxxx
)
SIGNED AS A DEED by )
XXXXX XXXXX XXXXX )
Acting by Xxxxx Xxxxx under a power of ) _____________________________
attorney dated 31 August 2001 ) as attorney for
in the presence of: ) Xxxxx Xxxxx Xxxxx
)
SIGNED AS A DEED by )
XXX XXXXX )
Acting by Xxxxx Xxxxx under a power of ) _____________________________
attorney dated 5 September 2001 ) as attorney for
in the presence of: ) Xxx Xxxxx
)
SIGNED AS A DEED by )
XXXX CRAVOS )
Acting by Xxxxx Xxxxx under a power of ) _____________________________
attorney dated 5 September 2001 ) as attorney for
in the presence of: ) Xxxx Cravos
)
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SIGNED AS A DEED by )
XXXXXXXXX CRAVOS )
Acting by Xxxxx Xxxxx under a power of ) _____________________________
attorney dated 5 September 2001 ) as attorney for
in the presence of: ) Xxxxxxxxx Cravos
)
SIGNED AS A DEED by )
XXXXX XXXXX XXXXX )
Acting by Xxxxx Xxxxx under a power of ) _____________________________
attorney dated 5 September 2001 ) as attorney for
in the presence of: ) Xxxxx Xxxxx Xxxxx
)
SIGNED AS A DEED by )
XXXXX XXXXXXXX )
Acting by Xxxxx Xxxxx under a power of ) _____________________________
attorney dated 5 September 2001 ) as attorney for
in the presence of: ) Xxxxx Xxxxxxxx
)
SIGNED AS A DEED by )
XXXXX XXXXX )
Acting by Xxxxx Xxxxx under a power of ) _____________________________
attorney dated 5 September 2001 ) as attorney for
in the presence of: ) Xxxxx Xxxxx
)
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SIGNED AS A DEED by )
XXXX XXXXXXXX )
Acting by Xxxxx Xxxxx under a power of ) _____________________________
attorney dated 5 September 2001 ) as attorney for
in the presence of: ) Xxxx Xxxxxxxx
)
SIGNED AS A DEED by )
XXXX XXXXXXX )
Acting by Xxxxx Xxxxx under a power of ) _____________________________
attorney dated 5 September 2001 ) as attorney for
in the presence of: ) Xxxx Xxxxxxx
)
SIGNED AS A DEED by )
XXXXXXX XXXXXX )
Acting by Xxxxx Xxxxx under a power of ) _____________________________
attorney dated 5 September 2001 ) as attorney for
in the presence of: ) Xxxxxxx Xxxxxx
)
SIGNED AS A DEED by )
XXXXX XXXXXX )
Acting by Xxxxx Xxxxx under a power of ) _____________________________
attorney dated 5 September 2001 ) as attorney for
in the presence of: ) Xxxxx Xxxxxx
)
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SIGNED AS A DEED by )
XXXXXXXX XXXXX )
Acting by Xxxxx Xxxxx under a power of ) _____________________________
attorney dated 5 September 2001 ) as attorney for
in the presence of: ) Xxxxxxxx Xxxxx
)
SIGNED AS A DEED by )
XXXXXXX XXXXXXXXX )
in the presence of )
)
)
SIGNED AS A DEED by )
XXX XXXXXXXXX )
Acting by Xxxxx Xxxxx under a power of ) _____________________________
attorney dated 28 January 2002 ) as attorney for
in the presence of: ) Xxx Xxxxxxxxx
)
SIGNED AS A DEED by )
THE TRUSTEES OF THE XXXXXXX AND )
XXXXXXXX XXXXX TRUST )
Acting by Xxxxxxx Xxxxx under a power of ) _____________________________
attorney dated ) as attorney for
in the presence of: ) The Trustees of the
) Xxxxxxx and Xxxxxxxx Xxxxx
Trust
SIGNED AS A DEED by )
XX XXXXX INVESTMENTS LIMITED )
PARTNERSHIP LLP )
Acting by Xxxxxxx Xxxxx under a power of ) _____________________________
attorney dated ) as attorney for
in the presence of: ) XX Xxxxx Investments Limited
) Partnership LLP
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SIGNED AS A DEED by )
XXXXXX X. XXXXXX )
Acting by Xxxxx Xxxxx under a power of ) _____________________________
attorney dated 21 September 2001 ) as attorney for
in the presence of: ) Xxxxxx X. Xxxxxx
)
SIGNED AS A DEED by )
XXX XXXXXXXX )
Acting by Xxxxx Xxxxx under a power of ) _____________________________
attorney dated 5 September 2001 ) as attorney for
in the presence of: ) Xxx Xxxxxxxx
)
SIGNED AS A DEED by )
XXXXXXX XXXX )
Acting by Xxxxx Xxxxx under a power of ) _____________________________
attorney dated 5 September 2001 ) as attorney for
in the presence of: ) Xxxxxxx Xxxx
)
SIGNED AS A DEED by )
XXXXXXXX XXXXXXXXXXXXX )
Acting by Xxxxx Xxxxx under a power of ) _____________________________
attorney dated 28 August 2001 ) as attorney for
in the presence of: ) Xxxxxxxx Xxxxxxxxxxxxx
)
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SIGNED AS A DEED by )
X X XXX XXXXX )
Acting by Xxxxx Xxxxx under a power of ) _____________________________
attorney dated 21 September 2001 ) as attorney for
in the presence of: ) X X Xxx Xxxxx
)
SIGNED AS A DEED by )
XXXXXX X. XXXXXXXXXX )
Acting by Xxxxx Xxxxx under a power of ) _____________________________
attorney dated 21 September 2001 ) as attorney for
in the presence of: ) Xxxxxx X. Xxxxxxxxxx
)
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