EXHIBIT 10.4
DATED 1998
TIOXIDE EUROPE LIMITED
and
N L INDUSTRIES, INC.
SHARE SALE AND PURCHASE AGREEMENT
OF
NEWCO
THIS AGREEMENT is made on 1998 BETWEEN:
(1) TIOXIDE EUROPE LIMITED (registered number 832447), a company
incorporated under the laws of England, whose registered office is
at ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the "SELLER");
(2) N L INDUSTRIES, INC., a corporation incorporated under the laws of
the State of New Jersey, whose principal place of business is at
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ (the
"PURCHASER").
WHEREAS:
(A) [ ] Limited is a company registered in England, short particulars
of which are set out in Schedule 1 (the "COMPANY").
(B) The Seller holds shares in the Company (the "SALE SHARES")
particulars of which are contained in Schedule 1.
(C) The Seller has agreed to sell and the Purchaser has agreed to
purchase the Sale Shares on the terms set out in this agreement.
IT IS AGREED as follows:
1 INTERPRETATION
1.1 In this agreement:
"ACT" means the Companies ▇▇▇ ▇▇▇▇;
"ACTUAL NET WORKING CAPITAL" has the meaning ascribed thereto in
Schedule 4 of the Hivedown Agreement;
"AFFILIATES" means with respect to a specified entity, an entity that
directly or indirectly, through one or more intermediaries, Controls,
or is Controlled by, or is under common Control with the entity
specified, provided that, without limiting the generality of the
foregoing, in relation to the Seller and its subsidiary companies, the
term "Affiliates" shall not include any entity in which a party has a
fifty per cent. or less ownership interest. For the purposes hereof,
"CONTROL" means possession, directly or indirectly, of the power to
direct or cause the direction of the management and operating policies
of the entity in respect of which the determination is being made,
through the ownership of voting securities, contract, voting trust or
otherwise but any reference in this agreement to an Affiliate of the
Seller or the Purchaser shall exclude the Company, and references to
the Seller's Group or the Purchaser's Group shall be construed
accordingly;
"AGREED FORM" means, in relation to any document, the form of that
document which has been initialled for the purpose of identification
by the parties to this agreement;
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks are generally open for normal business in both London and New
York;
"CAP" has the meaning set forth in sub-Clause 5.6;
"CLAIM" means any claim (other than in respect of Taxation) by the
Purchaser for breach of the Warranties or under the indemnities or
under any other provision of this agreement or under any of the
Implementation Agreements for which the Seller accepts liability or
shall be adjudicated as being liable;
"COMPLETION" means completion of the sale and purchase of the Sale
Shares in accordance with Clause 7 which shall occur immediately
following signature and exchange of this agreement;
"COMPLETION DATE" means immediately after completion of the Hivedown
Agreement;
"COMPUTER SYSTEMS" means all computer hardware, software, micro
processors and firmware which in each case are used in the Grimsby
Business;
"DEFAULT INTEREST" means LIBOR plus 200 basis points compounded
monthly;
"ENVIRONMENT" has the meaning given in Schedule 6;
"ENVIRONMENTAL AUTHORISATIONS" means all or any permits, consents,
licences, approvals and other authorisations required under
Environmental Laws and all terms and conditions thereof required under
any Environmental Law for the operation of the business of the
Company;
"ENVIRONMENTAL LAWS" has the meaning given in Schedule 6;
"ESTIMATED HIVEDOWN CONSIDERATION" has the meaning ascribed to
Estimated Consideration in the Hivedown Agreement;
"ESTIMATED NEWCO HIVEDOWN DEBT" has the meaning ascribed thereto in
sub-Clause 3.1.1 of the Hivedown Agreement;
"EXCLUDED ASSETS" means the carbon dioxide liquefaction plant owned by
ICI or its relevant Affiliate(s) and currently at the Grimsby Site;
"FINAL HIVEDOWN CONSIDERATION" has the meaning ascribed to Final
Consideration in the Hivedown Agreement;
"GRIMSBY ASSETS" has the meaning ascribed to Business Assets in the
Hivedown Agreement but excluding the Excluded Assets;
"GRIMSBY BUSINESS" means the business purchased by the Company
pursuant to the Hivedown Agreement;
"GRIMSBY BUSINESS DATA" has the meaning ascribed to Business Data in
the Hivedown Agreement;
"GRIMSBY CONTRACTS" has the meaning ascribed to Contracts in the
Hivedown Agreement;
"GRIMSBY DISCLOSURE LETTER" means the letter of the same date as this
agreement from the Seller to the Purchaser;
"GRIMSBY EMPLOYEES" has the meaning ascribed to Transferring Employees
and Offer Employees in the Hivedown Agreement;
"GRIMSBY FINANCIAL INFORMATION" means the financial information
attached as Schedule 8;
"GRIMSBY PROPERTIES" has the meaning ascribed to Properties in the
Hivedown Agreement;
"GRIMSBY SITE" means the property short particulars of which are set
out in the table contained in Schedule 2 Part I of the Hivedown
Agreement;
"GRIMSBY STOCKS" has the meaning ascribed to Stock-in-Trade in the
Hivedown Agreement;
"HIVEDOWN AGREEMENT" means the agreement of even date between the
Seller and the Company relating to the sale and purchase of the
Grimsby Business;
"ICI" means Imperial Chemical Industries PLC;
"ICI'S CONTROLLER'S MANUALS" means the control manuals in existence at
14 July 1997 and which are compiled in accordance with UK GAAP used
for accounting purposes within the ICI Group, copies of which have
been received by the Purchaser (and which consist of an introduction
to the Group Controller's Manual Bulletin Board of Accounting
Language, Bulletin Board Reporting, Accounting Definitions and
Conventions, Accounting Policies and Procedures, Controls, Reporting);
"ICI GROUP" means ICI and its Affiliates as at the Completion Date;
"IMPLEMENTATION AGREEMENTS" means the documents listed in Schedule 5;
"INTELLECTUAL PROPERTY" means all patents, trademarks, service marks,
registered designs, copyrights, and rights to inventions and
applications for and rights to apply for protection or registrations
of any of the same including any continuing, reissue, divisional and
re-examination patent applications and Technical Information;
"LIBOR" means the rate for deposits in US Dollars for a period of one
month which appears on the Reuters Screen ISDA Page (or such other
page as the parties may agree) at approximately 11.00 a.m., London
time, on the first day of the period to which any interest period
relates (the "RELEVANT DATE"). If such rate does not appear on the
Reuters Screen ISDA Page on the Relevant Date, the rate for that
Relevant Date will be determined as if the parties had specified that
the rate for the Relevant Date will be determined on the basis of the
rates at which deposits in US Dollars are offered by Midland Bank plc
at approximately 11.00 a.m., London time, on the Relevant Date to
prime banks in the London interbank market for a period of one month
commencing on that Relevant Date for amounts of US$10,000,000;
"MATERIAL GRIMSBY CONTRACTS" means all Grimsby Contracts (i) which at
Completion have in excess of 12 months to run and which in that time
can reasonably be expected to involve income or expenditure in respect
of the Grimsby Business in excess of US$200,000 per annum; or (ii)
which at Completion have less than 12 months to run and which in that
time can reasonably be expected to involve income or expenditure in
respect of the Grimsby Business in excess of US$1,000,000; or (iii)
which relate to the treatment and/or disposal of waste; or (iv) which
relate to contract manufacturing or processing of products by third
parties; and/or (v) relating to third party distribution or agency in
respect of products;
"PARENT UNDERTAKING" shall have the meaning given in section 258 of
the Companies ▇▇▇ ▇▇▇▇;
"PERMITS" means all licences, permits, authorisations, registrations
and approvals issued or granted by statutory or local authorities for
the purposes of operation of the Grimsby Business (but excluding, for
the avoidance of doubt, planning permissions issued by relevant
planning authorities (save for Environmental Authorisations) and any
licence, permit, authorisation or approval which falls within the
Regulatory Conditions);
"PLANT AND EQUIPMENT" has the meaning ascribed to Plant and Equipment
in the Hivedown Agreement;
"PURCHASER'S AUDITORS" means PricewaterhouseCoopers;
"PURCHASER'S GROUP" means the Purchaser's ultimate parent undertaking
and that parent undertaking's Affiliates;
"REGULATORY CONDITIONS" means the anti-trust or regulatory approvals
necessary to complete the sale of the Company on the terms set out in
this agreement;
"QUALIFYING AMOUNT" has the meaning set forth in sub-Clause 5.5.1;
"QUALIFYING CLAIM" has the meaning set forth in sub-Clause 5.5;
"SCHEME" means the Tioxide Pension Fund;
"SELLER'S AUDITORS" means PricewaterhouseCoopers of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇;
"SELLER'S GROUP" means the Seller's ultimate parent undertaking and
that parent undertaking's Affiliates as at the Completion Date;
"TAXATION" means:
(a) any tax, duty, impost or levy, past or present, of
the United Kingdom or elsewhere, whether
governmental, state, provincial, local governmental
or municipal, including but not limited to income tax
(including income tax required to be deducted or
withheld from or accounted for in respect of any
payment under Section 203 of the United Kingdom
Income and Corporation Taxes Act 1988 or otherwise),
corporation tax, advance corporation tax, capital
gains tax, value added tax, customs and other import
or export duties, stamp duty, stamp duty reserve tax,
national insurance and social security contributions
but excluding rates, council tax or any similar
charge; and
(b) any fine, penalty, surcharge, interest or other
imposition relating to any tax, duty, impost or levy
mentioned in paragraph (a) of this definition or to
any account, record, form, return or computation
required to be kept, preserved, maintained or
submitted to any person for the purposes of any such
tax, duty, impost or levy;
"TECHNICAL INFORMATION" shall mean all technical data and know-how,
industrial and technical information, trade secrets, confidential
information, drawings, formulations, technical reports, operating and
testing procedures, instruction manuals, raw material or production
specifications, the results of research and development work, whether
in hard copy or in computer held form (including, for the avoidance of
doubt, such media as microfilm and microfiche);
"TEL SHARE SALE AGREEMENT" means the share sale agreement dated [ ]
1998 between Tioxide Group Limited (1) and Du Pont (U.K.) Limited (2)
relating to the sale and purchase of the whole of the issued share
capital of the Seller;
"THRESHOLD AMOUNT" has the meaning given in sub-Clause 5.5.2;
"TRANSFER TIME" has the meaning given to it in the Hivedown Agreement;
"UK GAAP" means generally accepted accounting principles in the United
Kingdom;
"US DOLLARS", "US$" or "$" means the lawful currency of the United
States of America; and
"WARRANTIES" has the meaning given in sub-Clause 5.1.
1.2 Unless otherwise stated, any express reference to an enactment
includes references to:
1.2.1 that enactment as amended, extended or applied by or under any
other enactment before or after this agreement;
1.2.2 any enactment which that enactment re-enacts (with or without
modification); and
1.2.3 any subordinate legislation made (before or after this
agreement) under any enactment, including one within
sub-Clauses 1.2.1 or 1.2.2 above,
except to the extent that any of the matters referred to in
sub-Clauses 1.2.1 to 1.2.3 occurring after the date of this agreement
would increase or alter the liability of the Seller under this
agreement.
1.3 The singular shall include the plural and vice versa and words
denoting persons shall include bodies corporate and unincorporated
associations of persons and, unless otherwise stated, shall include
successors or assigns of such persons.
1.4 Sub-Clauses 1.1 to 1.3 apply unless the contrary intention appears.
1.5 The headings in this agreement do not affect its interpretation.
1.6 Any Schedule or Annex to this agreement shall take effect as if set
out in this agreement and references to this agreement shall include
its Schedules and Annexes.
1.7 Where any statement in this agreement (or in the attached Schedules or
Annexes) (other than in Schedule 3 paragraphs H(2) and H(3) is
qualified by the expression "so far as the Seller is aware", "to the
Seller's knowledge, information and belief", "known to the Seller" or
any similar statement, that statement shall be deemed to mean the
knowledge, after reasonable investigation, of the officers and
operational and functional managers of the Seller and its Affiliates
who have direct responsibility for the subject matter concerned being
those listed in Schedule 7.
1.8 Unless the context otherwise requires and except in relation to
Taxation matters, references in sub-Clause 1.1, sub-Clause 6.1,
Schedule 3 and Schedule 6 to the "Company" in the context of the
carrying on or operation of the Grimsby Business shall be deemed to be
a reference to the Seller in relation to the carrying on or operation
of the Grimsby Business up to and until the Transfer Time.
2 SALE AND PURCHASE OF THE SALE SHARES
2.1 The Seller shall with full title guarantee sell and the Purchaser
shall purchase the Sale Shares together with all rights attaching to
them.
2.2 The Sale Shares shall be sold free from all liens, charges, equities
and encumbrances and other rights exercisable by third parties or
Affiliates of the Seller.
3 CONSIDERATION
3.1 The consideration for the sale of the Sale Shares shall be US$1
payable in cash by the Purchaser on Completion (the "CONSIDERATION").
3.2 The payment under sub-Clause 3.1 shall be paid to the correspondent
bank named below for credit to the US$ account of o (the "TEL
ACCOUNT") referred to below:
Correspondent bank:
Bank account:
Account name:
Account no:
Sort code:
3.3 Any payments to the Purchaser under this agreement shall be paid to
the correspondent bank named below for credit to the US$ account of
[ ] (the "PURCHASER ACCOUNT") referred to below:
Correspondent bank:
Bank account:
Account name:
Account no:
Sort code:
4 PURCHASER'S WARRANTIES AND UNDERTAKINGS
4.1 The Purchaser warrants to the Seller that:
4.1.1 it (and each of its Affiliates, in respect of the
Implementation Agreements to which such Affiliate is a party)
has the requisite power and authority to enter into and to
perform this agreement and such Implementation Agreements;
4.1.2 it (and each of its Affiliates, in respect of the
Implementation Agreements to which such Affiliate is a party)
has obtained or satisfied all corporate, regulatory and other
approvals, or any other significant conditions, necessary to
execute and perform this agreement and such Implementation
Agreements;
4.1.3 this agreement and the Implementation Agreements constitute
valid and binding obligations of the Purchaser (and each of
its Affiliates, in respect of the Implementation Agreements to
which such Affiliate is a party) enforceable in accordance
with their terms; and
4.1.4 compliance with the terms of this agreement by the Purchaser
and the Implementation Agreements by the Purchaser or its
Affiliates (as appropriate) will:
(i) not constitute a breach of any agreement or contract to
which the Purchaser or such Affiliate of the Purchaser is
a party or by which it is bound; and
(ii)be in compliance with the Purchaser's or such
Affiliate of the Purchaser's by- laws; and
(iii)not contravene:
(a) any order, judgment or decree; or
(b) any statute, rule or regulation; or
(c) any other restriction of any kind by which the
Purchaser or such Affiliate of the Purchaser is
bound.
4.2 The Company will discharge and pay in full the Estimated Newco
Hivedown Debt at Completion and any additional amount payable in
relation to any adjustment thereto as described in sub-Clause 7.2
below, such payments to be made to the TEL Account.
5 SELLER'S WARRANTIES AND UNDERTAKINGS
5.1 The Seller warrants to the Purchaser that, save as otherwise stated in
this agreement and subject to all matters and circumstances fairly
disclosed in the Grimsby Disclosure Letter, each of the statements set
out in Schedule 3 to this agreement (the "WARRANTIES") is true and
accurate as at the date of this agreement and the Seller acknowledges
that the Purchaser has entered into this agreement in reliance upon
the Warranties.
5.2 Each of the Warranties shall be separate and independent and no
Warranty shall limit the scope or construction of any other Warranty
or any other provision of this agreement.
5.3 The Purchaser acknowledges and agrees that:
5.3.1 except for the Warranties, no statement, promise or forecast
made by or on behalf of the Seller or any member of the
Seller's Group or any member of the ICI Group may form the
basis of, or be pleaded in connection with, any claim by the
Purchaser under or in connection with this agreement or the
Implementation Agreements (save as may be set out in the
Implementation Agreements); and
5.3.2 any claim by the Purchaser or any person deriving title from
it in connection with the Warranties shall be subject to the
following provisions of this Clause.
5.4 The liability of the Seller under or in respect of a Claim shall be
governed by the terms of this Clause 5 and shall be limited in respect
of any liability which is contingent, unless and until such liability
becomes an actual liability and is due and payable, provided that the
Purchaser shall not be prohibited from bringing such claim pending
such liability becoming due and payable.
5.5 It is hereby agreed that the Seller shall have no liability for any
Claim:
5.5.1 unless the amount of such Claim exceeds US$100,000 (the
"QUALIFYING Amount"); and
5.5.2 until and to the extent only that the aggregate liability for
all Claims exceeding the Qualifying Amount (notified
previously or at the same time) exceeds US$5,300,000 (the
"THRESHOLD AMOUNT").
For the avoidance of doubt, notwithstanding that the aggregate
liability for Claims exceeding the Qualifying Amount ("QUALIFYING
CLAIMS") of the Seller has exceeded the Threshold Amount, the Seller
shall be liable solely for that excess.
5.6 It is hereby agreed that the maximum aggregate liability of the Seller
in respect of all Claims shall under no circumstances exceed (to the
extent that the relevant Claim has been brought by the Purchaser in
accordance with the terms of this agreement within the relevant time
period) an amount to be determined as follows (the "CAP"):
5.6.1 in respect of all Claims notified to the Seller pursuant to
this agreement in the period commencing on the Completion Date
up to but not including the third anniversary thereof, the Cap
shall be US$63,152,000;
5.6.2 on the third anniversary of the Completion Date the Cap
shall reduce to US$44,206,400;
5.6.3 on the fourth and each subsequent anniversary of the
Completion Date the Cap shall reduce (but so that the
applicable anniversary date for determining whether a Claim is
subject to a Cap reduction as aforesaid shall be by reference
to the date upon which the Claim is notified to the Seller
pursuant to this agreement and not the date upon which
liability thereunder is accepted or adjudicated) by an amount
of US$6,315,200 such that on the tenth anniversary of the
Completion Date it is completely extinguished.
5.7 Subject to sub-Clause 5.14, the Seller shall have no liability for any
Claims notified by the Purchaser on or after the tenth anniversary of
the Completion Date.
5.8 For the avoidance of doubt, in no circumstances whatsoever shall the
maximum aggregate liability of the Seller in respect of all Claims
exceed US$63,152,000.
5.9 The Purchaser acknowledges and agrees that:
5.9.1 no liability shall attach to the Seller by reason of any
breach of any of the Warranties or other provisions of this
agreement or the Implementation Agreements to the extent that
the loss has been recovered by the Purchaser under Schedule 6
or any other term of this agreement or any of the
Implementation Agreements and accordingly the Purchaser may
only recover once in respect of the same loss; and
5.9.2 in calculating the liability of the Seller for any breach of
the Warranties there shall be taken into account the amount by
which any Taxation for which the Purchaser or the Company is
now or in the future accountable or liable to be assessed is
reduced or extinguished as a result of the matter giving rise
to such liability.
5.10 The Purchaser shall not be entitled to make any Claim:
5.10.1 to the extent that the Claim arises as a result only of any
change after Completion in the accounting bases upon which the
Company values its assets or computes its profits or arises as
a result of the taxation or accounting policies, bases or
practices of the Purchaser being different to those adopted or
used in preparing the Grimsby Financial Information; or
5.10.2 to the extent that the matter which constitutes the Claim was
specifically consented to in writing by the Purchaser.
5.11 The Purchaser shall not be entitled to rescind or terminate this
agreement after Completion in any circumstances provided that nothing
in this sub-Clause shall exclude or limit any liability for fraud.
5.12 Save as otherwise provided in this agreement, the Seller shall not be
liable in respect of any Claim as a result of any legislation not
brought into force at the date of this agreement or as a result of any
change in or repeal of legislation hereafter or as a result of the
introduction or cessation of or change in the published practice of
any taxation authority after the date of this agreement.
5.13 The Purchaser shall not be entitled to make any claim in respect of
any breach or alleged breach of the Warranties or the indemnities
contained in this agreement or under any other provision of this
agreement to the extent that:
5.13.1 the facts, matters or circumstances giving rise thereto (in
respect of which any such claim or alleged claim arises) have
been fairly disclosed in the Grimsby Disclosure Letter; or
5.13.2 such claim arises or is incurred as a result of any voluntary
act or omission of the Purchaser or any Affiliate of the
Purchaser after the date of this agreement other than any such
act or omission which is in the ordinary course of business or
is required by law or is pursuant to a legally binding
commitment of the Company or any member of the Seller's Group
created or entered into before Completion; or
5.13.3 allowance, provision or reserve in respect of the subject
matter of such claim has been made or has otherwise been taken
into account or reflected in the mechanics for the calculation
of the Final Hivedown Consideration or the Actual Net Working
Capital.
5.14 The Purchaser shall take all reasonable steps to mitigate any loss
which may give rise to a Claim including, without limiting the
generality of the foregoing, the making of a claim which is available
to the Purchaser or its Affiliates under any available insurance
policy. It is agreed that:
5.14.1 no Claim by the Purchaser in respect of a breach of the
Warranties shall be enforceable unless written notice thereof
(including all material details thereof then reasonably
available to the Purchaser) has been given by the Purchaser to
the Seller as soon as reasonably practicable after the
Purchaser has become aware of the facts and circumstances
giving rise to such claim and their implications for the
purposes of this agreement and unless such written notice has
been duly served on the Seller within 24 months of the
Completion Date;
5.14.2 no other Claims by the Purchaser shall be enforceable unless
written notice thereof (including all material details thereof
or relating thereto then reasonably available to the
Purchaser) has been given by the Purchaser to the Seller (in
accordance with the terms of this agreement) as soon as
reasonably practicable after the Purchaser has become aware of
the facts and circumstances giving rise to the claim and their
implications for the purpose of this agreement;
Provided however that the Purchaser shall be able to bring any Claim
against the Seller without complying with the terms of sub-Clauses
5.14.1 and 5.14.2 hereof to the extent that the Seller has not
suffered prejudice as a result of any such non-compliance by the
Purchaser.
5.15 If any claim is made against the Company the subject matter of which
might also reasonably be expected to give rise to a Claim, but
excluding matters provided for in Schedule 6 in relation to which the
specific provisions set out in Schedule 6 shall apply:
5.15.1 the Purchaser shall, if so requested by the Seller, take all
steps which are necessary and reasonable to avoid, resist,
appeal, compromise or defend any such claim and any
adjudication in respect thereof (but subject in any such case
to the Purchaser being indemnified by the Seller against all
costs and expenses which may reasonably and necessarily be
incurred in connection therewith) and the Seller shall, at its
request, be allowed to conduct any negotiations, proceedings
or appeals incidental thereto;
5.15.2 the Seller shall raise no objection to the Purchaser attending
(and, where the rights of the Purchaser are, or may be,
detrimentally affected) being separately legally represented
(at its own expense) and, where appropriate, heard at any
negotiations, proceedings or appeals which the Seller has
taken conduct of pursuant to sub-Clause 5.15.1 above and the
Purchaser shall be consulted by the Seller prior to any
compromise, settlement or admission of liability being made by
the Seller at such negotiation, proceedings or appeals; and
5.15.3 the Purchaser shall at all reasonable times and upon
reasonable prior notice allow the Seller and its agents
reasonable access to all relevant properties of the Grimsby
Business, and access to, with the right to inspect and take
copies of, all relevant books and records and Grimsby Business
Data of the Grimsby Business (as then carried on) subject
always to keeping the same confidential other than in respect
of necessary disclosures in connection with such action or
claim which disclosures shall only be made and then only in
compliance with sub-Clause 5.15.4, if required by law or the
procedures of any court or tribunal or otherwise with the
prior written consent of the Purchaser (such consent not to be
unreasonably withheld or delayed);
5.15.4 if the Seller or its agents become legally compelled
(including by deposition, interrogatory, request for
documents, subpoena, civil investigative demand or similar
process) to disclose any of the information, records, or other
material referred to in sub-Clause 5.15.3, the party so
compelled shall provide the Purchaser with prompt prior
written notice of such requirement so that the Purchaser may
seek a protective order or other appropriate remedy. So far as
it is legally able so to do, the Seller agrees to cooperate in
the Purchaser's efforts to obtain a protective order or other
reasonable assurance that confidential treatment shall be
accorded any such information. If such protective order or
other remedy is not obtained, the party so compelled agrees to
disclose only that portion of the information, records, or
other material which it is advised by opinion of outside
counsel is legally required to be disclosed and to take all
reasonable steps to preserve the confidentiality of the
information, records, or other material referred to in this
sub-Clause 5.15.4.
5.16 If the Seller pays to the Purchaser any amount under this agreement in
respect of any Claim and the Purchaser or the Company is able to
recover any sum from any third party (including any insurer) in
respect of that Claim, the Purchaser shall, and shall procure that the
Company shall, use all reasonable endeavours to so recover any such
sum and shall repay to the Seller so much of the amount paid by the
Seller as is equal to any sum recovered, after allowing for the
reasonable costs and expenses of the Purchaser or the Company
reasonably incurred in connection therewith, provided that, in the
event that the Purchaser or the Company elects not to recover any such
sum from such third party, the Seller shall be entitled at its cost to
require that the Purchaser or the Company assign such right of
recovery to the Seller. Furthermore, if any liability on the part of
the Seller hereunder which results in a payment being made by the
Seller to the Purchaser gives rise to any corresponding saving or
rebate to the Purchaser or the Company (including any tax saving or
rebate) then the value of such corresponding saving or rebate to the
Purchaser or the Company shall be set against the liability of the
Seller hereunder.
5.17 Any payment by the Seller made to the Purchaser (or for the
Purchaser's benefit) in respect of any liability under this agreement
for breach of the Warranties or otherwise shall be deemed to be a
reduction in the consideration payable hereunder in respect of the
Sale Shares.
5.18 No party hereto shall be entitled to set off any amounts due to it by
any other party (whether under this agreement, the Implementation
Agreements or otherwise) against sums owing (or claimed by such other
party to be owing) under the terms of this agreement (whether for
breach of the Warranties or otherwise).
5.19 The provisions of this Clause 5 shall have effect notwithstanding any
other provisions of this agreement.
5.20 The parties are of the view that the provisions of Section 343 of the
Income and Corporation Taxes ▇▇▇ ▇▇▇▇ and Section 171 of the Taxation
of Chargeable Gains ▇▇▇ ▇▇▇▇ will not apply in connection with the
sale and purchase of the Grimsby Assets under the Hivedown Agreement
and the Seller agrees and undertakes to prepare and submit tax returns
on the basis that the said Sections 343 and 171 are not applicable
(the "AGREED BASIS"). Subject to compliance by the Seller with the
foregoing provisions of this Clause 5.20, the Seller shall have no
liability to the Purchaser if, notwithstanding such compliance, Newco
fails to obtain capital allowances or allowable expenditure under the
said Section 343 in a manner consistent with the Agreed Basis.
6 SELLER'S INDEMNITY
6.1 The Seller undertakes to indemnify and keep indemnified the Purchaser,
its Affiliates and the Company (the "INDEMNIFIED PARTIES") against all
claims by third parties (other than any subsequent purchaser or
purchasers of either the Sale Shares or the business or assets of the
Company and their successors in title or assigns) giving rise to
losses, costs, liabilities, proceedings, claims, demands and expenses
(including reasonable legal fees) other than liabilities expressly
assumed by the Purchaser pursuant to this agreement or the
Implementation Agreements or to the extent that such liabilities have
been taken into account in the mechanics for the calculation of the
Final Hivedown Consideration or the Actual Net Working Capital
(together, "LIABILITIES") which may be incurred by any of the
Indemnified Parties or to which any of the Indemnified Parties may
become subject and which arise as a result of the operation of the
Grimsby Business by the Company prior to Completion (unless the claim
made by the third party giving rise to the Liabilities was fairly
disclosed in the Grimsby Disclosure Letter), including:
6.1.1 Liabilities arising as a result of the failure by the Company
to comply with relevant and legally enforceable corporate or
other laws, rules, ordinances or regulations with respect to
the operations of the Grimsby Business prior to Completion
6.1.2 any breach of contract, tort, product liability or other claim
arising from, or with respect to, the operation of the Grimsby
Business prior to Completion and asserted by any third party;
and
6.1.3 any suit, action, arbitration, charge, governmental
investigation, claim, litigation or proceedings pending or
threatened at Completion and affecting the Grimsby Business or
the Company.
For the avoidance of doubt, the indemnity contained in this Clause 6
shall not apply to (i) any liability to Taxation; or (ii) any
Environmental Liabilities, any failure or omission to obtain or comply
with Environmental Authorisations, any failure or omission to comply
with any Environmental Laws or any claim by any person in respect of
any matter concerning the Environment. All definitions in this
sub-Clause (ii) are as defined in Schedule 6.
6.2 The Purchaser agrees to give the Seller notice of any and all claims
asserted against any Indemnified Party for which indemnification is or
may be sought under this Clause 6. Such notice shall be given as soon
as the Purchaser becomes aware that it has or may have a claim against
the Seller under this Clause 6. Failure to give such notice shall not
abrogate or diminish the Seller's obligation under this Clause if the
Seller has or receives knowledge of the existence of any such claim by
any other means or if such failure does not prejudice the Seller's
ability to defend such a claim.
6.3 In any litigation, administrative proceedings, negotiation or
arbitration pertaining to any claim for which indemnification is
sought pursuant to sub-Clause 6.1 above the Seller shall have the
right to select legal counsel to represent any Indemnified Party and
otherwise to control such litigation, proceedings, negotiation or
arbitration. If the Seller elects to control such litigation,
proceeding, negotiation or arbitration, the Purchaser shall have at
all times the right fully to participate in the defence at its own
expense. If the Seller shall within a reasonable time after notice
unreasonably fail to defend the claim, the Purchaser shall have the
right but not the obligation to undertake the defence of and to
compromise or settle the claim or any other matter on behalf, for the
account, and at the risk, of the Seller provided that such settlement
shall be negotiated and entered into by the Purchaser on a bona fide
basis and shall not exceed the sum claimed. In the event that the
claim is one that cannot by its nature be defended solely by the
Seller with reference to the personnel and information available to
the Seller, the Purchaser shall make available all information and
assistance as the Seller may reasonably request at the Seller's
expense.
6.4 Notwithstanding the foregoing provisions, should the subject matter of
any litigation, proceeding, negotiation or arbitration include a claim
against any Indemnified Party seeking injunctive relief, the Purchaser
shall have the right to take exclusive control of the defence of the
entire proceedings.
7 COMPLETION
7.1 Completion shall take place at the offices of the [ * ] immediately
after the signature of this agreement when:
7.1.1 each party shall provide to the other evidence in a form
reasonably satisfactory to the other that it (and each of its
relevant Affiliates entering into an Implementation Agreement)
has all necessary corporate approvals and its signatories have
necessary authority to enter into this agreement and the other
agreements referred to herein
7.1.2 each party shall (or shall procure that its relevant
Affiliates) duly execute and, to the extent applicable,
complete the Implementation Agreements
7.1.3 the Seller shall deliver to the Purchaser:
(i) a duly executed transfer or transfers in favour of the
Purchaser of all the Sale Shares;
(ii)share certificate(s) or other documents of title relating
to the Sale Shares (or an express indemnity in a form
reasonably satisfactory to the Purchaser in the case of
any missing certificates or documents of title);
(iii)the company books relating to the Company, including
certificates of incorporation, common seals, minute books,
statutory registers, shareholders' agreements and share
certificate books (duly written up to date);
(iv)resignations of [all] the directors and secretary of the
Company in the Agreed Form;
[(v)the written resignation of the auditors of the Company to
take effect on Completion, with acknowledgments signed by
them to the effect that they have no claim against the
Company and to the effect that there are no circumstances
connected with their resignation which they consider
should be brought to the notice of the shareholders or
creditors of the Company;]
(vi)the Grimsby Business Data;
(vii)the documentation and title deeds to the Grimsby
Properties in accordance with the provisions of
Schedule 2;
7.1.4 the Purchaser shall pay to the Seller the Consideration;
7.1.5 the Company shall discharge and pay in full the Estimated
Newco Hivedown Debt (being the sum of US$118,410,000) to the
Seller, such payment to be made to the TEL Account;
7.1.6 the Seller shall take, or shall procure the taking of, such
steps as may be necessary to:
(i) approve the transfers referred to in sub-Clause 7.1.3 (i)
(subject only to the Purchaser arranging and paying any
taxes or duties arising in relation to the transfer); and
(ii)appoint such directors and secretary as the Purchaser
may specify as directors and the secretary of the Company.
7.2 If the Final Hivedown Consideration exceeds the Estimated Hivedown
Consideration, the excess shall be paid by the Company to the Seller
in accordance with the provisions of sub-Clause 3.2 and Schedule 14 of
the Hivedown Agreement, such payment to be made to the TEL Account.
8 GRIMSBY EMPLOYEES
The Purchaser agrees to procure that the Company for a period of four
years from the Completion Date will procure that:
8.1 the Grimsby Employees will receive and enjoy contractual remuneration
and benefits (including retirement benefits) which, judged
objectively, are no less favourable overall than their contractual
remuneration and benefits at the Completion Date; and
8.2 it will not make any unilateral material change to the contractual
terms and conditions of employment with the Grimsby Employees (which
includes those terms contained in a letter to employees dated 19 June
1991 from the Seller) without prior consultation where required by any
local laws or agreements, with recognised trade unions, appropriate
employee representatives, or the Grimsby Employees.
9 GRIMSBY PROPERTIES
The Seller and the Purchaser shall observe and perform the provisions
of Schedule 2 expressed to be observed and performed by each of them
respectively.
10 PENSIONS
Schedule 4 shall apply.
11 ENVIRONMENTAL AND COPPERAS
11.1 The Seller and Purchaser shall observe and perform the provisions of
Schedule 6 expressed to be observed and performed by each of them
respectively.
11.2 The Seller covenants that for a period of three years from and after
the Completion Date, none of the Seller and/or any of its Affiliates
will directly or indirectly market, sell or offer for sale in the
United Kingdom any copperas product provided that nothing in this
clause shall prevent the Seller and/or any of its Affiliates from
purchasing shares in any company or purchasing any business which
carries on as an ancillary part of its entire business (so as not to
form a substantial part of the same), the marketing, sale or offer for
sale of any copperas product.
12 ANNOUNCEMENTS
Neither party shall make or permit any member of the Seller's Group
or the Purchaser's Group, as the case may be, to make any announcement
concerning this agreement or any ancillary matter except as required
by law or any competent regulatory body or with the prior written
approval of the other party.
13 DEFAULT INTEREST
Subject as otherwise provided to the contrary in this agreement, if
any sum due for payment under this agreement or in accordance with
this agreement is not paid on the due date the party in default shall
pay Default Interest on that sum from the due date until the date of
actual payment calculated on a day to day basis.
14 NOTICES
14.1 Any notice or other document to be served under this agreement shall
be in writing and may be delivered by hand or by courier, sent by fax
or by post to the party to be served at its address appearing in this
agreement (and marked for the attention of the person whose name is
referred to in sub-Clause 14.3 below) or at such other address (or
marked for the attention of such other person) as it may have notified
to the other party in accordance with this Clause. Any notice or other
document sent by post shall be sent by registered post (if both posted
and for delivery within the same jurisdiction) or by registered
airmail (if posted for delivery outside the jurisdiction in which it
is posted), in either case return receipt requested (or any
substantially equivalent service).
14.2 Any notice or document delivered or sent in accordance with
sub-Clause 14.1 shall be deemed to have been served:
14.2.1 if delivered by hand, at the time of delivery; or
14.2.2 if sent by fax, at the time of delivery if sent between
12.01 a.m. and 6.00 p.m. (local time at the destination)
or at 10.00 a.m. on the Business Day after transmission if
sent at any other time; or
14.2.3 if posted, at 10.00 a.m. on the second Business Day after it
was put into the post if posted for delivery within the same
jurisdiction, or at 10.00 a.m. (local time at the place of
destination) on the fifth Business Day after it was put in the
post if sent by registered airmail.
14.3 The person to whom notices or documents should be addressed for the
purposes of sub-Clause 14.1 is:
14.3.1 if to be served on the Seller or on Affiliates of the Seller:
Vice President & General Manager
White Pigment & Mineral Products
E.I. du Pont de Nemours and Company
Building ▇▇-▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Fax: (▇) ▇▇▇ ▇▇▇ ▇▇▇▇
with a copy to the Company Secretary of Imperial Chemical
Industries PLC of Imperial ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇, Fax: (▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇;
14.3.2 if to be served on the Purchaser:
General Counsel
N L Industries, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Fax: (▇) ▇▇▇ ▇▇▇ ▇▇▇▇
14.4 In proving service of a notice or document it shall be sufficient to
prove that delivery was made by hand or that the envelope containing
the notice or document was properly addressed and posted (either by
registered post or by registered airmail, as the case may be, in
accordance with the requirements of this Clause).
15 GENERAL
15.1 Each of the obligations, warranties and undertakings set out in this
agreement which is not fully performed at Completion will continue in
force after Completion.
15.2 Unless otherwise expressly stated, all claims made and payments to be
made under this agreement shall be made in US Dollars. Payments to the
Seller shall be made in immediately available funds to the account of
the Seller at the TEL Account or at such other account as the Seller
may notify to the Purchaser and to the Purchaser in immediately
available funds to the Purchaser Account or such other account as the
Purchaser may notify to the Seller. All payments and values under this
agreement shall be in US Dollars and, where an amount is not itself
calculated in US Dollars, it shall be converted into US Dollars at the
mid-market closing exchange rate for that currency in US Dollars as
published in the London Edition of The Financial Times published two
Business Days prior to the date on which the relevant payment is due
or, where no such rate is published, at the rate quoted by Citibank,
N.A. at the close of business in London on that date.
15.3 Save as otherwise provided to the contrary in this agreement, each
payment to be made under this agreement shall be made in the currency
in which the relevant amount is payable, free and clear of all
deductions or withholdings of any kind, except for those required by
law and, if any deduction or withholding must be made by law, an
additional amount will be paid which is necessary to ensure that the
recipient receives a net amount equal to the full amount which it
would have received if the payment had been made without the deduction
or withholding.
15.4 None of the rights or obligations under this agreement may be assigned
or transferred without the written consent of the other party (the
"NON-ASSIGNING Party") other than an assignment of the rights (but not
the obligations) to an Affiliate of the assigning party provided that:
15.4.1 such assignment shall only be permitted if the assignment has
no adverse effect on the Non-assigning Party;
15.4.2 if the Affiliate to which the rights have been assigned ceases
to be an Affiliate of the assigning party, the rights which
have been transferred shall be re-transferred to the party
which originally assigned those rights or to another Affiliate
of that original assigning party; and
15.4.3 it shall be a condition of any such assignment that reasonable
notice is given in writing to the Non-assigning Party of the
proposal to assign (identifying the rights proposed to be
assigned, the identity of the proposed assignee and such other
details relating thereto as the Non-assigning Party may
reasonably require).
15.5 Save as otherwise provided in this agreement, each party shall pay the
costs and expenses incurred by it and its Affiliates in connection
with the entering into and completion of this agreement.
15.6 This agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same agreement and
any party may enter into this agreement by executing a counterpart.
15.7 No amendment, variation or waiver of this agreement or any provision
of this agreement shall be effective unless it is in writing and duly
executed by or on behalf of both parties.
15.8 Both parties shall at their own expense at all times from the date of
this agreement do all things as may be required to give effect to this
agreement including, without limitation, the execution of all deeds
and documents, procuring the convening of all meetings, the giving of
all waivers and consents and the passing of all resolutions and
otherwise exercising all powers and rights available to them.
16 WHOLE AGREEMENT
16.1 Subject to sub-Clause 16.2 below, this agreement and the
Implementation Agreements (if and when executed) contain the whole
agreement between the parties and their respective Affiliates relating
to the transactions contemplated by this agreement and the
Implementation Agreements and supersede all previous agreements
between the parties and their respective Affiliates relating to such
transactions.
16.2 A provision in another agreement between the parties to this agreement
or between the respective parent undertakings of the parties (and
whether made before or after the date of this agreement) which refers
to this agreement and which extends or supplements any provision in
this agreement will be deemed for the purposes of sub-Clause 16.1
above to form part of the whole agreement between the parties as
referred to in that sub-Clause.
16.3 Each of the parties to this agreement acknowledges on its own behalf
and on behalf of each of its Affiliates that, in agreeing to enter
into this agreement and the Implementation Agreements, it has not
relied on any representation, warranty, collateral contract or other
assurance (except those set out in this agreement) and waives all
rights and remedies which, but for this sub-Clause, might otherwise be
available to it in respect of any such representation, warranty,
collateral contract or other assurance, provided that nothing in this
Clause shall limit or exclude any liability for fraud.
17 GOVERNING LAW
This agreement is governed by and shall be construed in accordance
with English law.
18 JURISDICTION
The parties agree to submit to the exclusive jurisdiction of the
English courts for all purposes relating to this agreement. The
Purchaser irrevocably appoints ▇▇▇▇▇▇▇ ▇▇▇▇▇ (Ref 554) of ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ as its agent for service of
▇▇▇▇▇▇▇.▇▇ England.
AS WITNESS the hands of the duly authorised representatives of the
parties on the date which first appears on page 1.
SCHEDULE 1
PARTICULARS OF THE COMPANY
(RECITAL A)
[ ] LIMITED
Date and place of incorporation:
Registered Office:
Registered number:
Authorised Share Capital: GBP *
Issued Share Capital: GBP * divided into 2 Ordinary Shares
of GBP1 each
Shareholders: Tioxide Europe Limited (or its nominees)
Directors:
Secretary:
SCHEDULE 2
GRIMSBY PROPERTIES
(SUB-CLAUSE 7.1.3(VII))
On Completion the Seller shall deliver to the Purchaser all title
documentation (and other documentation disclosed to the Purchaser) in
connection with the Grimsby Properties.
SCHEDULE 3
WARRANTIES
(CLAUSE 5)
A. GENERAL
A.1 CAPACITY AND CONDUCT OF THE GRIMSBY BUSINESS
(1) The Seller (and each of its Affiliates in respect of the
Implementation Agreements to which they are parties) has the requisite
power and authority to enter into and to perform this agreement and
such Implementation Agreements.
(2) The Seller (and each of its Affiliates, in respect of the
Implementation Agreements to which they are parties) has obtained or
satisfied all corporate, regulatory and other approvals, or any other
significant conditions, necessary to execute and perform this
agreement and the Implementation Agreements.
(3) This agreement and the Implementation Agreements constitute (or when
executed will constitute) valid and binding obligations of the Seller
(and each of its Affiliates, in respect of the Implementation
Agreements to which they are parties) enforceable in accordance with
their terms.
(4) The execution and compliance with the terms of this agreement by the
Seller and the Implementation Agreements by the Seller or its
Affiliates (as appropriate) will:
(a) not constitute a breach of any Material Grimsby Contract
to which the Seller (or any of its Affiliates) is a party
or by which it or they are bound or entitle any person to
terminate or avoid any such agreement or contract;
(b) be in compliance with the Seller's and the Company's
memorandum and articles of association or other
constitutional documents (or those of any of its
Affiliates);
(c) not contravene any order, judgment, decree or regulation
or any other restriction of any kind by which the Seller
or any of its Affiliates or the Company is bound; or
(d) not result in the loss or impairment of or any default
under any licence, authorisation or consent required by
the Company for the purposes of its business.
(5) All factual information contained in Schedule 1 relating to the
Company is true and accurate in all material respects.
A.2 THE COMPANY
(1) The information relating to the Company contained in
Schedule 1 is true and accurate.
(2) Compliance has been made with all legal requirements in
connection with the formation of the Company and all issues
and grants of shares, debentures or other securities of the
Company.
A.3 OWNERSHIP OF SALE SHARES
(1) The Seller is the sole legal owner of the Sale Shares which
constitute the entire issued share capital of the Company.
(2) The Seller is entitled to sell and procure the transfer of the
full legal ownership in the Sale Shares free from any
encumbrance, equity or third party right of whatsoever nature,
from any agreement or contract to grant the same and from any
claim to any of the same.
(3) The Sale Shares are fully paid up or credited as fully paid up
and constitute the whole of the issued and allotted share
capital owned by the Seller in the Company.
(4) No agreement or contract has been entered into which requires
or may require the Company to allot or issue any share or loan
capital and the Company has not allotted or issued any
securities which are convertible into share or loan capital.
A.4 SUBSIDIARIES
(1) The Company is not the holder or beneficial owner of (nor has
agreed to acquire) any class of any shares or loan capital or
other securities of any other corporation (whether
incorporated in the United Kingdom or elsewhere).
(2) The Company is not and has not agreed to become a member of
any partnership or other unincorporated association,
joint-venture or consortium (other than recognised trade
associations).
(3) The Company does not have any place of business or permanent
establishment (as that expression is defined in double
taxation conventions) outside the United Kingdom.
A.5 OWNERSHIP OF GRIMSBY ASSETS
(1) Except for the Excluded Assets and those assets that are
leased (as described in the Grimsby Disclosure Letter) the
Company has full legal and beneficial title to all the Grimsby
Assets reflected in the Grimsby Financial Information (save
for current assets and fixed assets worth less than
US$100,000, both as defined for the purposes of the Grimsby
Financial Information, disposed of by the Company in the
ordinary course of its business since 28 February 1998) and to
all Grimsby Assets acquired by the Company since 28 February
1998.
(2) None of the Grimsby Assets is subject to any encumbrance
(including without limitation any debenture, mortgage, charge,
lien, deposit by way of security, ▇▇▇▇ of sale, option or
right of preemption) except those that arise in the ordinary
course of business and do not have a material adverse effect
on the Grimsby Business. All significant items of Grimsby
Plant and Equipment have been regularly and adequately
maintained where such maintenance is normally required and are
in reasonable working order having regard to their age and use
and taken as a whole are capable of operating the Grimsby
Business fully and effectively as previously carried on by the
Company.
(3) Save for fluctuations and variations in the Grimsby Stocks due
to normal business factors including without limitation
production schedules and market demand (including seasonal
factors affecting the same) the Grimsby Stocks in aggregate
comprise broadly the same mix of products as has been required
and has been maintained at levels sufficient to meet the level
of sales of the Grimsby Business for the last four quarters.
The Grimsby Stocks are owned by the Company free and clear of
all liens, claims, charges and encumbrances other than any
such interests arising in the ordinary course of business. The
Grimsby Stocks are located at the Grimsby Properties.
(4) The Company owns or has the right to use all the property
rights and assets necessary for the Company to carry on fully
and effectively the Grimsby Business in the manner in and to
the extent to which it is presently conducted.
(5) The Grimsby Business Data (other than historical Grimsby
Business Data) contains in all material respects bona fide and
accurate records of all matters customarily or required to be
dealt with therein. The Grimsby Business Data and the
Company's information, and the means of access to them are
exclusively owned by it and under its direct control or are
under its authority.
(6) The Grimsby Disclosure Letter contains details of the current
insurance arrangements applicable to the Grimsby Business.
Those arrangements are in full force and effect, all premiums
have been duly paid and so far as the Seller is aware, nothing
has been done or omitted to be done which would make any
policy of insurance of the Company void or voidable. There is
no material claim outstanding under any such arrangement.
A.6 COMPLIANCE WITH STATUTES
In relation to the Grimsby Business, the Company is not in
contravention of any statute, order or regulation of the United
Kingdom or any relevant foreign country, including but not limited to
the Foreign Corrupt Practices Act and the United States anti-boycott
regulations, which is likely to result in a fine or penalty or which
would have a material adverse effect on the Grimsby Business. There is
no order, decree or judgment of any court or governmental agency of
the United Kingdom or any foreign country outstanding against the
Company in relation to the Grimsby Business.
A.7 LICENCES AND CONSENTS
In relation to the operation of the Grimsby Business prior to the
Transfer Time by the Seller, the Grimsby Business had all governmental
authorisations licences and consents necessary to own and operate the
Grimsby Assets and to carry on the Grimsby Business in the manner in
which such business was carried on. All such authorisations, licences
and consents were valid and subsisting and were complied with in all
material respects. The Seller has paid all fees due under the same. A
list of material Permits relating to the Grimsby Business has been
disclosed and identified in the Grimsby Disclosure Letter.
A.8 LITIGATION
(1) Except as disclosed in the Grimsby Disclosure Letter, the
Company is not engaged in any litigation or arbitration
proceedings except as plaintiff for collection of debts in the
ordinary course of business which is likely to involve the
Company claiming or paying sums in excess of US$100,000 or
which otherwise will have a material effect on the operation
of the Company and the Grimsby Business and there are no such
proceedings pending and no letter before action has been
received by the Company and so far as the Seller is aware
there are no facts likely to give rise to any such
proceedings. The Seller has disclosed in the Grimsby
Disclosure Letter a list (which is complete and accurate in
all material respects) which includes a general description of
each pending law suit, claim, including customer complaints,
administrative proceedings, arbitration, labour dispute or
governmental investigation or inspection to which the Company
is a party or involves the operation of the Grimsby Business
and which is likely to involve the Company claiming or paying
sums in excess of US$100,000. The Seller has disclosed in
general terms all material (individually or in the aggregate)
product liability claims received by the Company or by the
Seller during the last 3 years. There are no orders decrees
judgments or agreements with any Court or governmental
authority to which the Company or the Seller (on behalf of the
Company) is a party or by which the Company or the Seller are
bound and which will have a material effect on the operation
of the Company and the Grimsby Business.
(2) No administrator, receiver or administrative receiver or any
other equivalent officer has been appointed in respect of the
Company or in respect of any parts of the assets or
undertakings of the Company.
(3) No petition has been presented, no order has been made, no
resolution has been passed and no meeting has been convened
for the winding-up of the Company or for an administration
order to be made in relation to the Company nor has any such
order been made.
(4) No voluntary arrangement has been approved under Part I
Insolvency Act 1986 and no compromise or arrangement has been
sanctioned under Section 425 of the Act in respect of the
Company.
(5) The Company has not become unable to pay its debts.
(6) No distress, distraint, charging order, garnishee order,
execution or other process has been levied or applied for in
respect of the whole or any part of any of the property,
assets and/or undertaking of the Company.
A.9 ENVIRONMENTAL MATTERS
(1) Environmental authorisations
In relation to the Grimsby Business:
(a) Prior to the Transfer Time, the Seller had lawfully
obtained all Environmental Authorisations and each such
authorisation at such time was in full force and effect
and the Seller had complied at all times therewith and the
Company, having obtained all such Environmental
Authorisations (on the same terms and subject to the same
conditions as those held by the Seller), will be able to
continue to comply in the future with all conditions of
such authorisations.
(b) No works or costs are or will be necessary to obtain or
secure compliance with or maintain any existing
Environmental Authorisations or their conditions or
otherwise to comply with Environmental Laws.
(c) The Company has received no communication in any form in
respect of any Environmental Authorisation varying,
modifying in any material respect, revoking, suspending or
cancelling the same or indicating an intention or
threatening so to do and so far as the Seller is aware
there are no facts or circumstances which may result in
any Environmental Authorisation being so varied, modified,
revoked, suspended or which may prejudice their renewal.
(d) So far as the Seller is aware all appropriate or necessary
action in connection with the renewal or extension of an
Environmental Authorisation has been taken.
(e) The Company is not engaged in and, so far as Seller is
aware, there are no facts which make it likely or
desirable that it should be engaged in any appeal in
respect of any Environmental Authorisation or any
conditions contained therein or any refusal of any
Environmental Authorisation.
(f) So far as the Seller is aware there is no reason to
believe that those Environmental Authorisations which have
been applied for but which have not yet been granted or
are pending will not be granted within a reasonable period
of time and on terms which are acceptable in order for the
Company to continue its current business operations.
(g) So far as the Seller is aware the execution and/or
performance of this agreement and all other documents
which are to be executed at Completion will not result in
any Environmental Authorisations being varied, modified,
revoked, suspended, cancelled, or not renewed.
(2) Compliance with Environmental Laws
In relation to the Grimsby Business:
(a) The Company is in compliance with Environmental Laws and
the state and use of the Grimsby Properties have been at
all times in conformity with Environmental Laws.
(b) The Company has not received any communication in any form
from any competent authority requiring the taking of
remedial or other steps in relation to the pollution or
protection of the Environment or the state or use of the
Grimsby Properties. So far as the Seller is aware there
are no circumstances which might give rise to such
communications being received and the Seller is not aware
of any intention on the part of any such authority to give
such notice.
(c) No proceedings or other action, claim or investigation are
or have been in existence or are so far as the Seller is
aware pending or threatened against the Company arising
from or in relation to any Environmental Authorisations or
otherwise concerning Environmental Laws.
(3) Liability
In relation to the Grimsby Business:
(a) The Company or the Seller, in relation to the Grimsby
Business, has not received any notice or intimation of any
complaint or claim from any person in respect of any
matter concerning the Environment.
(b) The Company or the Seller, in relation to the Grimsby
Business, are not and have not been engaged in any action,
litigation, arbitration or dispute resolution proceedings
relating to or concerning any actual or potential
liability under Environmental Laws and the Seller is not
aware of any such matters pending or being threatened or
of any circumstances or facts likely to give rise to any
such matters.
(c) The Company or the Seller, in relation to the Grimsby
Business, are not and have not been subject to any
injunction or similar remedy or order by a court of
competent jurisdiction, or to any undertakings given to
such court in respect of any matters relating to or
concerning the Environment.
(4) As far as the Seller is aware, there has not been in relation
to the Grimsby Business in the last three years any adverse
report, complaint or investigation of the Health and Safety
Executive (or any non UK equivalent if any) or any
prosecution, formal caution or warning for any violation of
any applicable laws or regulations including the Health and
Safety at Work etc. ▇▇▇ ▇▇▇▇ and the Control of Substances
Hazardous to Health Regulations 1987.
A.10 DATA ROOM DOCUMENTS
(1) Save as disclosed in Schedule 7 of the Grimsby Disclosure
Letter, so far as the Seller is aware, each licence, permit,
contract, list and report set out in Annex 1 and disclosed in
the Data Room, and identified on Annex 1 by reference to the
reference number set out in the Data Room Index annexed to the
Grimsby Disclosure Letter:
(a) other than where redacted, is a true copy of the original;
(b) is the latest version thereof;
(c) is complete; and
(d) has not been altered, amended or varied since the date
thereon.
(2) To the extent that any note, summary or response to questions
of or in respect of the documents set out in Annex 1 referred
to in sub-Paragraph A.10(1) contains any expression of opinion
of the ICI Group (not including the opinion of third parties),
such opinion reflects the current reasonably held opinion of
its author given in good faith taking into account the
respective author's knowledge and understanding.
B. GRIMSBY FINANCIAL INFORMATION
(1) The Grimsby Financial Information has been derived from the
books of the Grimsby Business of the Seller, which books have
been regularly and consistently kept and maintained using
ICI's normal accounting policies and practices as set out or
referred to in the ICI's Controller's Manuals (and the
policies contained in these Manuals are in accordance with UK
GAAP) as applied by the Seller on a consistent basis in
accordance with UK GAAP and, on such basis, represents the
assets and liabilities of the Grimsby Business as at 28
February 1998.
(2) The Grimsby Financial Information does not, so far as the
Seller is aware, materially mis-state any of the matters
presented therein. Since 28 February 1998 there has been:
(a) no material change in any accounting or inventory
valuation methods used by the Company in connection with
the Grimsby Assets;
(b) no upward re-valuations of existing Grimsby Stocks; and
(c) no material adverse change in the Grimsby Business or
financial condition of the Company, which for this purpose
shall not include the inherently cyclical nature of the
titanium dioxide industry or general economic conditions.
C. ANTI-COMPETITIVE ARRANGEMENTS
(1) The carrying on of the Grimsby Business by the Company does
not require any agreement, arrangement, concerted practice or
course of conduct which is material to the Grimsby Business
and which:
(a) is subject to registration under the Restrictive Trade
Practices Acts 1976 and 1977 but is not so registered;
(b) infringes Article 85 or 86 of the Treaty establishing
the European Community;
(c) is an "anti-competitive practice" within the meaning of
the Competition ▇▇▇ ▇▇▇▇.
(2) The Company or the Seller, in relation to the Grimsby
Business, have not received in the last three years any
process, notice or communication, formal or informal, from the
Office of Fair Trading or Directorate General IV of the
European Commission, relating to any aspect of the Grimsby
Business which alleges any illegal practices in relation to
the Grimsby Business and so far as the Seller is aware no such
process, notice or communication is likely to be received.
D. MATERIAL GRIMSBY CONTRACTS
(1) Copies of all the Material Grimsby Contracts are annexed to
the Grimsby Disclosure Letter.
(2) The Company is not in breach of, or default under, any of the
Material Grimsby Contracts or any other Grimsby Contracts the
consequence of which would or may have a material adverse
effect on the Company in relation to the Grimsby Business and,
so far as the Seller is aware, no state of facts exists or
event has occurred, is pending or is threatened which, after
the giving of notice or the lapse of time, would or may
constitute or result in a breach or a default by the Seller or
by the Company or any other person, firm, corporation or
entity of or in relation to any contract the consequences of
which would have a material effect on the operation of the
Grimsby Business. All Material Grimsby Contracts are legal
valid and binding obligations of the Company and are
enforceable in accordance with their terms.
E. GRIMSBY EMPLOYEES
(1) Particulars of the material terms of employment of all Grimsby
Employees and officers of the Company are annexed to the
Grimsby Disclosure Letter and such particulars are true,
complete and accurate in all material respects.
(2) No Grimsby Employee of Grade 37 or above has given to the
Company or the Seller and neither the Company nor the Seller
have received, or given, notice of termination of his
employment.
(3) No more than 50 Grimsby Employees at the Grimsby Site have
given to the Company or the Seller and neither the Company nor
the Seller have received, or given, notice of termination of
their employment.
(4) Standard form consultancy agreements, agency or self-employed
or contracted labour agreements or contracts where sums in
excess of GBP50,000 per annum are paid or are payable by the
Company have been disclosed in the Grimsby Disclosure Letter.
(5) The collective agreements, union recognition agreements and
European Works Council agreements annexed to the Grimsby
Disclosure Letter are all the agreements between the Company
and the trade unions or representative bodies constituted
pursuant to the European Works Council Directive No. 94/45/EC.
(6) So far as the Seller is aware, there is no material industrial
action by the Grimsby Employees pending or threatened in
relation to the Grimsby Business nor has there been within the
last 12 months.
(7) Since 28 February 1998 there has been no material change in
rates of remuneration or other benefits or other terms of
employment of the Grimsby Employees. The Company is not a
party to any contractual arrangement to make material changes
to remuneration or other benefits or other terms of employment
or to establish any new bonus arrangements for the Grimsby
Employees.
(8) Particulars of all loans made by the Company to Grimsby
Employees which are in excess of US$100,000 and which shall
remain outstanding at Completion, together with sums owed by
the Company to any Grimsby Employee (other than remuneration
and other contractual or customary benefits) which are in
excess of US$100,000, are disclosed in the Grimsby Disclosure
Letter.
(9) No Grimsby Employee of Grade 37 or above previously employed
by the Company has a right to return to work or any right to
be reinstated or re-engaged by the Company whether under
statute or otherwise.
(10) No more than 50 Grimsby Employees at the Grimsby Site,
previously employed by the Company, have a right to return to
work or any right to be re-instated or re-engaged by the
Company whether under statute or otherwise.
(11) A list of all Grimsby Employees of Grade 37 and above seconded
from ICI at the Grimsby Site is set out in or annexed to the
Grimsby Disclosure Letter.
(12) In relation to the Grimsby Employees, there are no existing
nor, so far as the Seller is aware, threatened arbitration
procedures arising out of or under any union recognition or
works council agreement covering the Grimsby Employees nor, so
far as the Seller is aware, does any basis therefore exist nor
has the Seller or the Company received any request for
recognition or representation by any trade union not currently
recognised on the Grimsby Site.
(13) The Company has complied in all material respects with all
statutes, regulations, orders and codes of conduct relating to
employment and relations with Grimsby Employees and trade
unions and has maintained records required by law regarding
the service of each of its Grimsby Employees.
(14) The Grimsby Disclosure Letter contains approximate numbers of
Grimsby Employees at the Grimsby Site as at the stated date
together with approximate numbers of Grimsby Employees below
Grade 37 and approximate numbers of Grimsby Employees above
Grade 37. The Grimsby Disclosure Letter also contains
approximate numbers of employees of the Company who are
employed at locations other than at the Grimsby Site.
For the purposes of these employment warranties alone,
"GRIMSBY EMPLOYEES" means employees of the Company who are
employed at the Grimsby Site and Grimsby Site means the
Factory at Pyewipe Road, details of which are set out in Part
1 Section 2 of Schedule 2.
For the purposes of these employment warranties "GRADE 37"
refers to a particular grade of employee, as determined by the
Company, using the Hay-MSL evaluation system.
F. PENSIONS
In this Part F: "SCHEME DOCUMENTS" means the documents relating to the
Scheme identified in the Grimsby Disclosure Letter.
(1) Except pursuant to the Scheme, the Company has not paid,
provided or contributed towards, and is not under any
obligation (whether or not legally enforceable) to pay,
provide or contribute towards any relevant benefit (as defined
in Section 612(1) of the Income and Corporation Taxes Act 1988
(referred to in this Part F as ICTA)), payable on death or
retirement for or in respect of any present or past officer or
employee (or any spouse, child or dependant of any of them) of
the Company.
(2) The Scheme Documents comprise all the documents governing the
Scheme including all explanatory booklets and announcements to
the employees describing the terms of the Scheme (other than
routine benefit statements) of current effect and full
particulars of any enhancement of benefit and contributions
payable to the Scheme and there is no obligation to provide or
continue to provide benefits in respect of employees or former
employees of the Company under the Schemes other than as
revealed in the Scheme Documents.
(3) The Scheme is approved as an exempt approved scheme (within
the meaning of Chapter I of Part XIV of ICTA) and there is in
force in respect of the employments to which the Scheme
relates an appropriate contracting-out certificate (within the
meaning of section 7 of the Pension Schemes Act 1993) and so
far as the Seller is aware nothing has been done or omitted to
be done which will or may result in the Scheme ceasing to be
approved as an exempt approved scheme or the contracting-out
certificate in respect of the Scheme being cancelled,
surrendered or varied.
(4) So far as the Seller is aware, the Scheme has at all times
complied with the provisions of all relevant statutes,
regulations and requirements and has been administered in
accordance with the trusts, powers and provisions of the
Scheme and with due regard to the general requirements of
trust law and the advisers to the Scheme have not had and do
not have any cause to report any matter to OPRA.
(5) So far as the Seller is aware, the Company has complied in all
material respects with its obligations under the Scheme and
all amounts due to be paid to the Scheme by it and its
employees have been paid.
G. GRIMSBY PROPERTIES
(1) The Grimsby Properties constitutes all of the freehold or
leasehold or other immovable property owned by occupied or
used by the Company.
(2) The particulars of the Grimsby Properties shown in Schedule 2
to the Hivedown Agreement (including in the case of registered
land the class of title and title number) are true, complete
and correct. The use of the Grimsby Properties for the purpose
stated in Schedule 2 to the Hivedown Agreement corresponds to
the use to which it is in fact put or (where the Grimsby
Properties is not presently in use) to the use to which it was
last in fact put.
(3) The Company has a good and marketable title to the Grimsby
Properties for the estate or interest stated in Schedule 2 to
the Hivedown Agreement, free from any defects, and has in its
possession, or under its control, all duly stamped deeds and
documents which are necessary to prove title to the Grimsby
Properties, and such title has already been fully deduced to
the Purchaser's Solicitors.
(4) The Company does not require the use and is not in occupation
of or entitled to any estate or interest in any land or
premises save for the Grimsby Properties. The Company is in
exclusive occupation of the whole of the Grimsby Properties
and on completion shall be in exclusive occupation of the
whole of the Grimsby Properties.
(5) The Grimsby Properties are not affected by any of the following
matters:
(a) any easement, reservation, covenant, restriction,
agreement, licence, franchise, mortgage, charge,
encumbrance, or third party right;
(b) any notice, order, proposal, dispute or complaint relating
to it or its present use under any legislation, agreement,
covenant, condition, licence or consent; or
(c) outgoings (other than uniform business rates, water
charges and other standard payments to the relevant water
company including, without limitation, insurance premiums
and other usual business expenses), whether of a
periodically recurring nature or otherwise and whether
payable by the owner or occupier of the relevant property.
(6) All obligations, restrictions, conditions and covenants
(including any imposed by or pursuant to any lease but
excluding any referred to in paragraph A.9 above) affecting
the Grimsby Properties has been observed and performed so far
as the Seller is aware and there are no subsisting allegations
of a breach of any thereof relating to the Grimsby Properties
or its present use under any legislation, agreement, covenant,
condition, licence or consent other than those referred to in
paragraph A.9 above by any competent authority or other person
or so far as the Seller is aware any circumstance which might
give rise to such a breach.
(7) The Grimsby Properties are in a good and substantial state of
repair and condition and fit for the purposes for which they
are presently used and the Company or the Seller has not used
in the Grimsby Properties any substances not in conformity
with relevant British or European standards or codes of
practice or which are generally known to be deleterious to
health and safety and there are no uncompleted works of any
description at the Grimsby Properties other than routine
maintenance.
(8) There are no subsisting allegations that the use of the
Grimsby Properties for the purpose stated in Schedule 2, Parts
I and II of the Hivedown Agreement is not the permitted user
under the provisions of all relevant legislation (including,
without limitation, legislation relating to town and country
planning and health and safety but excluding environmental
protection) or regulations made under such legislation or is
not in accordance with the requirements of the local planning
and all other competent authorities or that any restrictions,
conditions and covenants imposed by or pursuant to such
legislation have not been observed and performed and no
agreement has been entered into under section 106 Town and
Country Planning Act 1990 (or any similar statutory provision)
in respect of the Grimsby Properties.
(9) The copy documents disclosed and the replies given by
Linklaters & Paines to the Purchaser's Solicitors' written
enquiries concerning the Grimsby Properties are true, complete
and accurate in all material respects.
(10) The Company has no liabilities or contingent liabilities (but
excluding any matters referred to in paragraph A.9 above) in
respect of any properties (other than the Grimsby Properties)
(or any interest therein) whether by privity of contract or by
way of guarantee or surety or otherwise.
(11) The Grimsby Properties have the benefit of all rights,
easements and consents reasonably required for the occupation
and operation of such properties for their present use and any
plant, machinery and processes thereat and such rights,
easements and consents are enjoyed on terms which do not
permit them to be determined by any third party or by
effluxion of time.
(12) There are no outstanding liabilities to make payments in
respect of rates, water charges, or any other charges payable
in respect of the Grimsby Properties to any governmental,
state, municipal or other similar authority.
H. INTELLECTUAL PROPERTY
(1) So far as the Seller is aware, the rights to be licensed to
the Company at Completion in respect of Intellectual Property
and Technical Information are all of those considered by the
Seller to be necessary for the conduct of the Grimsby Business
by the Company as now conducted.
(2) Except as set out in the Grimsby Disclosure Letter, the Seller
has not received actual notice of infringement by others or of
attacks on the validity of or on the Seller's or its
Affiliates title to any Intellectual Property used exclusively
in the Grimsby Business. The Grimsby Disclosure Letter
identifies the status of the relevant patents and, so far as
the Seller is aware, whether or not such patents are currently
being opposed.
(3) The Seller does not have actual knowledge and has not received
written notification that activities of the Grimsby Business
infringe the Intellectual Property of any third party (the
Seller having no obligation to conduct investigations in
relation to any such potential infringement).
(4) So far as the Seller is aware, all material agreements
relating to Intellectual Property and Technical Information to
which the Seller is a party and which relate to the Grimsby
Business are listed in the Grimsby Disclosure Letter.
I. BROKERS
Neither the Seller nor the Company has employed any investment banker,
broker or finder or incurred any liability for any brokerage fees,
commissions, finders' fees or similar payments in connection with the
transactions contemplated by this agreement for which the Purchaser or
the Company may be liable.
J. THE COMPANY
As at the Completion Date, the Company has not carried on any business
or trade and has no liabilities or obligations (actual or contingent)
except for (i) any liabilities or obligations assumed by the Company
pursuant to the terms of the Hivedown Agreement or any document
entered into pursuant thereto; (ii) any liability to stamp duty
arising from completion of the Hivedown Agreement; and (iii) any
liability incurred in the ordinary course of the Grimsby Business
since the Transfer Time.
K. MILLENNIUM COMPLIANCE
(1) For the purposes of this agreement "Millennium Compliant"
means that the Computer Systems are capable of the following
functions before during and/or after 1 January 2000:
(a) handling date information involving all and any dates
before, during and/or after 1 January 2000 including
accepting date input, providing date output and performing
date calculations in whole or part;
(b) operating accurately without interruption on and in
respect of any and all dates before, during and/or after 1
January 2000 and without any change in performance;
(c) responding to and processing two digit year input without
creating any ambiguity as to the century; and
(d) storing and providing date input information without
creating any ambiguity as to the century.
(2) The Grimsby Disclosure Letter contains material details of the
measures that have been implemented within the Grimsby
Business to determine the extent to which its Computer Systems
are not Millennium Compliant, and material details of any
programme undertaken by the Grimsby Business with a view to
its Computer Systems achieving Millennium Compliance (or so
close to Millennium Compliance as is practicable).
L. INTRA-GROUP ARRANGEMENTS
(1) Except as provided for in the Hivedown Agreement and any
document entered into pursuant thereto and any liability
incurred in the ordinary course of the Grimsby Business since
the Transfer Time, there is no indebtedness or liability
(actual or contingent) nor any security owed by the Company to
any member of the Seller's Group or the ICI Group (in each
case as constituted following Completion) other than arising
in the ordinary course of business and as conducted on arm's
length terms.
(2) Except as provided for in the Hivedown Agreement and any
document entered into pursuant thereto and any liability
incurred in the ordinary course of the Grimsby Business since
the Transfer Time, there is no agreement or contract to which
the Company is a party and to which any member of the Seller's
Group or the ICI Group (in each case as constituted following
Completion) is a party or in which any such member is
otherwise interested in any way whatsoever which shall
continue beyond the Completion Date.
M. DEBTORS
(1) The Company has not made, or entered into any contract or
agreement to make any loan to, or other arrangement with, any
person as a result of which it is or may be owed any money
other than trade debts incurred in the ordinary course of
business and cash at bank.
(2) The Company is not entitled to the benefit of any debt
otherwise than as the original creditor and has not factored
or discounted any debt or agreed to do so.
(3) All of the debts which will be reflected in the Final
Completion Statement (as defined in the Hivedown Agreement) as
owing to the Company (apart from bad and doubtful debts to the
extent to which they have been provided for in the Final
Completion Statement) will realise their full value as
included in the Final Completion Statement within the payment
terms agreed with the respective debtors.
SCHEDULE 4
PENSIONS
(CLAUSE 10)
1 DEFINITIONS
"ACTUARY'S LETTER" means the letter from the Scheme Actuary to the
Purchaser's Actuary attached to this agreement at Schedule 9.
"PAYMENT DATE" means the date on which payment is due under paragraph
3.5.
"PURCHASER'S SCHEME" means the Scheme nominated under paragraph 2.1
and, where the context requires, the trustees thereof.
"PRINCIPAL EMPLOYER" means Tioxide Group Limited until the date on
which it ceases to be the Principal Employer of the Scheme and, after
that date, the Seller.
"SCHEME" means the Tioxide Pension Fund and, where the context
requires, the trustees thereof.
"TIMING ADJUSTMENT" has the meaning set out in the Actuary's Letter.
"TRANSFERRING MEMBER" means a Grimsby Employee who is a member of the
Scheme on the Completion Date who consents to a transfer of assets
being made for him to the Purchaser's Scheme under paragraph 2.3.
"PURCHASER'S ACTUARY" means the actuary or firm of actuaries appointed
by the Purchaser for the purpose of this Schedule.
"SCHEME ACTUARY" means ▇▇▇▇▇▇ ▇▇▇▇▇▇ of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Lowndes Limited
or any other actuary or firm of actuaries appointed by the Principal
Employer for the purpose of this Schedule.
2 THE PURCHASER'S SCHEME
2.1 The Purchaser will, on or before Completion Date, nominate the
Purchaser's Scheme being a scheme which is a contracted-out and an
exempt approved scheme for the purposes of Chapter I Part XIV of the
Income and Corporation Taxes Act 1988 ("ICTA") or capable of being a
contracted-out and exempt approved scheme and which is permitted by
its rules to receive transfer payments in respect of Transferring
Members on the terms of this Schedule. The Purchaser will use its best
endeavours to ensure that this does not change after the Completion
Date.
2.2 Unless a Grimsby Employee requests otherwise within four weeks of the
Completion Date, each Grimsby Employee who is a member of the Scheme
immediately before the Completion Date shall join the Purchaser's
Scheme with effect from the Completion Date. Any Grimsby Employee who
has not become eligible to join the Scheme by the Completion Date will
be able to join the Purchaser's Scheme on the date he would have
become eligible to join the Scheme if it had continued to apply to
him.
2.3 The Principal Employer and the Purchaser will use all reasonable
endeavours to ensure that each Grimsby Employee who is a member of the
Scheme immediately before the Completion Date and who becomes a member
of the Purchaser's Scheme is given the opportunity (in terms approved
by the Principal Employer and the Purchaser, such approval not to be
unreasonably withheld), of consenting within eight weeks of the
Completion Date to a transfer of assets being made for him from the
Scheme to the Purchaser's Scheme.
2.4 The Purchaser's Scheme will provide benefits and require employee
contributions in respect of each Transferring Member's service with
the Company from the Completion Date which are comparable with those
being provided and required under the Scheme and on a basis which is
substantially no less favourable overall (to the satisfaction of the
Principal Employer's Actuary) than the basis on which benefits are
being provided immediately before Completion for (and contributions
required from) the Transferring Members under the Scheme.
3 TRANSFER PAYMENT FROM SCHEME
3.1 The Principal Employer will use reasonable endeavours to ensure that
on the Payment Date the trustees of the Scheme transfer to the
Purchaser's Scheme an amount equal to the value of the benefits
payable under the Scheme in respect of the Transferring Members'
service before the Completion Date calculated as at the Completion
Date on the bases set out in the Actuary's Letter ("TRANSFER AMOUNT"),
with the adjustments set out below.
3.2 The Transfer Amount will be adjusted by reference to the Timing
Adjustment for the period between the Completion Date and the close of
business on the day before the date on which payment is made to the
Purchaser's Scheme.
3.3 The Transfer Amount as adjusted by paragraph 3.2 will be calculated by
the Scheme Actuary and agreed by the Purchaser's Actuary within 14
days of the Scheme Actuary notifying the Transfer Amount to the
Purchaser's Actuary.
3.4 Payment to the Purchaser's Scheme will be made on the following
conditions:
3.4.1 that the Inland Revenue has given its consent to the making of
the payment;
3.4.2 the Purchaser has complied with all its obligations in this
Schedule;
3.4.3 the Transfer Amount has either been agreed under paragraph 3.3
or determined under paragraph 6;
3.4.4 the trustees of the Purchaser's Scheme have confirmed that
they will accept the payment on the terms set out in paragraph
4.
3.5 Payment to the Purchaser's Scheme (adjusted in accordance with
paragraph 3.2) is due on the later of the following:
3.5.1 3 months after the Completion Date; and
3.5.2 14 days after the date when the last of the conditions in
paragraph 3.4 has been satisfied.
3.6 The Principal Employer and the Purchaser will use all reasonable
endeavours to secure agreement between the Scheme and the Purchaser's
Scheme respectively as to the particular assets to be transferred
representing the amount due. If agreement is not reached by the
Payment Date, the transfer will be in the form of assets of the Scheme
listed on the London Stock Exchange and selected by the Trustees of
the Scheme as a representative selection of such listed assets held by
the Scheme. To the extent that any part of the amount due is paid in
cash, the amount due will be reduced by two per cent. Any securities
to be transferred will be valued at the mid-market price at the close
of business on the relevant stock exchange on the day before the date
of transfer.
3.7 If the trustees of the Scheme do not pay the Transfer Amount
calculated and adjusted in accordance with paragraphs 3.2 and 3.6 in
full on the Payment Date, the Principal Employer will pay to the
Purchaser the amount of the difference ("SHORTFALL") less the rate of
corporation tax current at the date of payment. If they make a larger
transfer payment to the Purchaser's Scheme than the Transfer Amount
adjusted in accordance with paragraphs 3.2 and 3.6, the Purchaser will
pay the amount of the difference to the Principal Employer less the
rate of corporation tax current at the date of payment.
3.8 No payment shall be due from the Principal Employer pursuant to 3.7
above:
3.8.1 if the reason for the payment not having been made to the
Purchaser's Scheme by the expiry of the time limit referred to
above is the failure of the Purchaser's Scheme for whatever
reason to accept the whole or any part of the payment or if
the reason is any other reason outside the control of the
Trustees of the Scheme but, if no payment is due from the
Principal Employer because of any such other reason outside
the control of the Scheme, payment will become due (subject to
the other provisions of this paragraph 3) if and when such
reason ceases to exist;
3.8.2 unless the Purchaser undertakes in writing to the Principal
Employer to pay the Shortfall forthwith to the Purchaser's
Scheme and to procure that such amount be applied by the
Purchaser's Scheme to provide benefits for the Transferring
Members in respect of their pensionable service in the Scheme
before the Completion Date as mentioned in paragraph 4.
4 BENEFITS TO BE PROVIDED BY THE PURCHASER'S SCHEME IN RESPECT OF
SERVICE UNDER THE SCHEME
4.1 The Purchaser shall procure that the pension entitlements under the
Purchaser's Scheme in respect of any member of the Purchaser's Scheme
who:
4.1.1 was a member of the Scheme immediately before the Completion
Date;
4.1.2 has not consented to a transfer of assets being made for him
from the Scheme to the Purchaser's Scheme; and
4.1.3 who dies after the Completion Date, but before the last date
on which he is able to give such consent under the invitation
referred to in paragraph 2.3.
will be augmented. The augmentation will be such that the amount of
the widow's or widower's and any child's or dependant's pension which
is payable in respect of such member from the Purchaser's Scheme shall
be increased so that the total of such benefits payable in respect of
such member under the Scheme and the Purchaser's Scheme shall be the
same as that which would have been payable had that employee died
while in service immediately before the Completion Date.
4.2 The Purchaser will ensure that the Purchaser's Scheme accepts
liability for each Transferring Member's accrued rights to a
guaranteed minimum pension and accrued rights under section 9(2B) of
the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and provides benefits in respect of such
payment in accordance with regulations made under Sections 12C or 20
of that Act.
4.3 The Purchaser will ensure that the Purchaser's Scheme credits, with
effect from the Completion Date, each Transferring Member with final
salary type benefit overall at least equal in value, as determined by
the Scheme Actuary with the agreement of the Purchaser's Actuary, to
those applying for and in respect of him under the Scheme immediately
before the Completion Date. For this purpose benefits will be valued
under both schemes on the basis of the assumptions and methods set out
in the Actuary's Letter. If the trustees of the Scheme notify the
trustees of the Purchaser's Scheme that a specified part of the assets
transferred for a particular Transferring Member relates to benefits
not calculated by reference to pensionable service, the Purchaser will
ensure that he is entitled to equivalent benefits under its scheme.
5 NO ASSISTANCE
The Purchaser agrees that neither it nor the Company nor the
Purchaser's Scheme will take any action or provide any assistance to
any person (direct or indirect) which might or would result in any
claim being made against the Trustees of the Scheme or the Principal
Employer, or in the Scheme transferring a smaller or a larger amount
than the amount payable under paragraph 3.1 to the Purchaser's Scheme.
6 DISPUTES
In the event that the Scheme Actuary and the Purchaser's Actuary shall
not agree any matter on which their agreement is required under this
Schedule, the matter may be referred upon the application of either
the Principal Employer or the Purchaser to an independent actuary
appointed by the President for the time being of the Institute of
Actuaries on the application of either the Principal Employer or the
Purchaser. That actuary shall determine the matter in accordance with
this Schedule (including the Actuary's Letter) acting as an expert and
not as an arbitrator and his decision shall be final and binding. His
expenses shall be borne equally by the Principal Employer and the
Purchaser unless he makes a recommendation that they shall be borne
otherwise.
7 VOLUNTARY CONTRIBUTIONS
Nothing previously contained in this Schedule will apply to voluntary
contributions or to benefits secured by them. However, the Principal
Employer will use reasonable endeavours to ensure that the assets
representing Transferring Members' voluntary contributions will be
transferred to the Purchaser's Scheme, and the Purchaser will ensure
that in that event its scheme provides benefits for the members
concerned equal in value to the assets transferred.
SCHEDULE 5
IMPLEMENTATION AGREEMENTS
(SUB-CLAUSE 1.1)
1.1 Service Agreement for transitional IT arrangements between the Seller
(or an Affiliate of the Seller) and the Company
1.2 Service Agreement (Eutech) between ICI (or an Affiliate of ICI) and
the Company
2 Product Exchange Agreement between TEL and the Company
3 Deed of Guarantee (to include a guarantee given by the Purchaser's
ultimate parent undertaking in respect of the Company's obligations
under the Hivedown Agreement)
4 Transfers of the legal interests in respect of the ▇▇▇▇▇▇▇▇▇ Bottom
Quarry and Killingholme properties in favour of the Purchaser or any
of its Affiliates
SCHEDULE 6
ENVIRONMENT
(CLAUSE 11)
1 INTERPRETATION
For the purposes of this Schedule 6, words and expressions defined in
the Share Sale Agreement to which this Schedule 6 is attached shall
have the same meaning in this Schedule 6 and, in addition, the
following terms shall have the following meanings:
"COMMERCIALLY REASONABLE EXPENSES" are those costs and expenses which
a reasonable person acting in a commercially prudent manner, taking
into account (but without imposing an absolute requirement) the need
to minimise his expenditure, would expend, in the case of any
obligation to carry out the remediation of Environmental Contamination
pursuant to Environmental Laws, to meet that obligation. For the
avoidance of doubt, Commercially Reasonable Expenses shall not include
any costs or expenses to the extent that they are incurred as a result
of the adoption or imposition of standards of clean-up materially more
stringent than those which are provided for under Environmental Laws;
"CONTROLLED WATERS" means waters including any ground or surface
waters;
"COUNTER INDEMNITY" means the indemnity defined in paragraph 3.1;
"EA PROVISIONS" means Part II and paragraphs 161 and 162 of schedule
22 of the Environment ▇▇▇ ▇▇▇▇ as enacted at Completion and the first
complete set of regulations and guidance under those provisions except
(in the event that they are not already in issue at Completion) to the
extent that any of the above, when they come into force, are
materially more onerous than the versions of such provisions which are
enacted or exist in draft form as at Completion;
"ENVIRONMENT" means air, Controlled Waters, land (whether on, in or
below such land, excluding any buildings or other permanent structures
on, in or below the land) but including the surface of any river bed,
the surface of any sea bed or any other land covered by water, and
flora and fauna and all other natural resources;
"ENVIRONMENTAL CONTAMINATION" means any discharge, transport,
emission, release, leakage, spillage, escape or disposal of Hazardous
Material at or from the Site(s) onto or into any part of the
Environment;
"ENVIRONMENTAL LAWS" means any and all legislation (whether civil,
criminal or administrative), statutes, treaty, statutory instrument,
directive bylaw or judgment (including any judgment by the European
Court of Justice), regulations, notices orders government circular,
code of practice, and guidance note or decision of any competent
regulatory body or common law relating to pollution or protection of
the Environment which as at Completion are in effect and capable of
enforcement by legal process in the country in which the Site(s) are
situated, save that the EA Provisions shall be deemed to be in force
at Completion;
"ENVIRONMENTAL LIABILITIES" means all claims, costs, damages, expenses
(including reasonable professional fees incurred), losses, liabilities
(including without limitation liability to third parties), fines or
penalties suffered or incurred by the Company, the Purchaser or its
Affiliates (or the Seller or its Affiliates in the case of the Counter
Indemnity) as a direct consequence of or in connection with any
Environmental Proceeding;
BUT EXCLUDING any claims, costs, damages, expenses, losses,
liabilities:
(i) in respect of capital expenditure on plant and equipment
other than capital to carry out remediation of
Environmental Contamination pursuant to Environmental
Laws;
(ii)in respect of loss of anticipated profits, loss of
revenue, or any other loss in respect of business
interruption;
(iii)where applicable to the extent that they are not
Commercially Reasonable Expenses;
"ENVIRONMENTAL PROCEEDING" means:
(i) subject to (ii) below any writ and/or interim or final
judicial or administrative decree, judgment, injunction,
order, or notice;
(a) under which the Company the Purchaser or its
Affiliates (or the Seller or its Affiliates in the
case of the Counter Indemnity) are obliged by
Environmental Laws or legal process pursuant to
Environmental Laws to undertake or pay the cost of
remediation or with which the aforesaid parties are
otherwise obliged to comply; or
(b) as a result of any violation or alleged violation of
Environmental Laws; or
(c) as a result pursuant to Environmental Laws of:
(aa)any personal injury to any third party (and, in
the case only of the Indemnity other than to
officers or employees of the Company, the
Purchaser and its Affiliates and any contractors
or agents of the Company, the Purchaser or its
Affiliates save to the extent in the case of
personal injury (other than asbestos-related
personal injury) after Completion that the
Purchaser neither knew nor reasonably ought to
have known of the circumstances giving rise to
such personal injury); or
(bb)damage to any property of any third party (and,
in the case only of the Indemnity other than as a
result of damage after Completion to the property
of any officers or employees of the Company, the
Purchaser or its Affiliates and any contractors
or agents of the Purchaser or its Affiliates save
to the extent, in the case of damage occurring
after Completion the Purchaser neither knew nor
reasonably ought to have known of the
circumstances giving rise to the damage to
property);
(ii)any agreement between the Seller and Purchaser, or in the
event of disagreement any determination by the Experts,
that it is Reasonably Necessary to undertake remediation
of Environmental Contamination which would but for the
fact that an environmental authority is unaware of it be
more likely than not to result in an environmental
authority bringing an Environmental Proceeding under
(i)(a) in the definition of Environmental Proceeding and
which would result in Environmental Liabilities;
"HAZARDOUS MATERIAL" means hazardous poisonous, dangerous, noxious, or
toxic substances, pollutants or wastes;
"INDEMNITY" means the indemnities contained in paragraph 2 below;
"OFF SITE DISPOSAL TIPS" means any properties used as a landfill or
otherwise for the deposit of waste which are located anywhere other
than on sites which sites at or any time prior to Completion are or
have been used for manufacturing or other operations of the Company,
the Seller and/or its Affiliates;
"REASONABLY NECESSARY" means reasonably necessary to avoid or avert or
mitigate the development of substantial adverse and material pollution
of the Environment or harm to human health which will arise within a
period of six months; and
"SITES(S)" means the Grimsby Properties (including, without
limitation, Off Site Disposal Tips).
2 INDEMNITY
2.1 Subject to the provisions of this agreement, the Seller undertakes to
the Purchaser (for the benefit of the Company, the Purchaser and each
of its Affiliates) that it will indemnify and hold harmless the
Company, the Purchaser and each of its Affiliates against:
2.1.1 all Environmental Liabilities arising at or from the Site(s),
to the extent that such Environmental Liabilities are a result
of Environmental Contamination occurring on or before
Completion; and
2.1.2 all costs, damages expenses, losses, fines or penalties
suffered or incurred by the Company or the Purchaser or its
Affiliates as a result of any prosecutions commenced or
proceedings taken, or notices served or other formal
enforcement action between [DATE OF SIGNATURE OF THE 1998
FRAMEWORK AGREEMENT] 1998 and Completion by any competent
regulatory body in connection with the Environment or health
and safety as a result of any breaches of any Environmental
Laws related to the operation of those Sites which are owned,
occupied or used by the Company at [DATE OF SIGNATURE OF THE
1998 FRAMEWORK AGREEMENT] 1998. For the avoidance of doubt,
damages in this paragraph 2.1.2 includes any capital
expenditure reasonably required to remedy such breaches; and
2.2 notwithstanding paragraphs 2.1 above and 4.1 below neither the Seller
nor any of its Affiliates shall be liable under the Indemnity or
otherwise to the extent that such liability arises from or is
attributable to the failure of the Purchaser to comply or procure the
Company's compliance with the provisions of paragraphs 4.2 and 5 to
14.
3 THE COUNTER INDEMNITY
3.1 The Purchaser undertakes to the Seller (for the benefit of the Seller
and each of its Affiliates) that, subject to the provisions of this
agreement, it will indemnify and hold harmless (the "Counter
Indemnity") the Seller and each of its Affiliates from and against all
Environmental Liabilities arising at or from the Site(s) after
Completion save to the extent that such Environmental Liabilities fall
within the Indemnity.
3.2 Notwithstanding sub-paragraph 3.1 above, the Purchaser and its
Affiliates shall not be liable to the Seller under the Counter
Indemnity or otherwise to the extent that such liability arises from
or is attributable to the failure of the Seller to comply with the
provisions of paragraphs 3.3, 4.2, 6-8, 10, 11, 12.1, 13 and 14 of
this Schedule.
3.3 The Seller shall take all reasonable steps to avoid or mitigate any
Environmental Liabilities and potential Environmental Liabilities
which may give rise to a claim under or in connection with this
Counter Indemnity, howsoever arising.
3.4 The provisions of paragraphs 4.2 and 12.1 shall apply equally mutatis
mutandis in respect of the Seller and the Purchaser's rights or
obligations in respect of the Counter Indemnity.
4 LIMITATIONS
4.1 Neither the Seller nor any of its Affiliates shall be liable under the
Indemnity to the extent that Environmental Liabilities have arisen,
been increased, exacerbated, enhanced or caused as a result of any act
or omission whether direct or indirect of the Company, the Purchaser
or any Affiliates, employees, agents or contractors thereof after
Completion (including, without limitation, any change of use of the
Site(s) which for the avoidance of doubt shall include closure of all
or any part of the Sites but shall not include any material change of
process within the existing plant and/or buildings or any material
change to or development of the business and operations carried on at
any Site which does not result in any Site or any part of any Site
ceasing to be used for general industrial/manufacturing of a type
materially similar to the existing Site operation and the word
"omission" as used in this paragraph 4.1 shall not mean any failure by
the Company or Purchaser to carry out remediation or preventative
action in circumstances where it is not within their power to do so or
where the Purchaser is not aware or could not reasonably have been
aware of the Environmental Liabilities in question or where (without
prejudice to the obligations of the Purchaser under paragraph 5) the
rights of the Purchaser to bring a claim under the Indemnity would be
prejudiced as a result thereof.
4.2 No claim may be made by the Purchaser for any Environmental
Liabilities under this Indemnity against the Seller to the extent that
any Environmental Liabilities arise:
4.2.1 as a result directly or indirectly of information voluntarily
given by the Purchaser or the Company (but only post
Completion in the case of the Company) to a regulatory
authority in circumstances other than where there is a
mandatory reporting requirement under Environmental Laws or
where information is given as required in the context of
applications for or variations to authorisations, licences and
other forms of environmental consent required by the business
in the course of the Company's or the Purchaser's normal
business activities or where the Seller has previously
proposed or approved this course of action in writing; and
4.2.2 from any admission of liability by a representative of the
Purchaser holding a rank not less than that of Senior Vice
President in respect of any clean-up which needs to be done,
except where the Seller has approved such admission in writing
such approval not to be unreasonably withheld or delayed.
4.3 No claim against the Seller or its Affiliates under the terms of the
Indemnity for any Environmental Liabilities shall be valid unless
notice has been served on the Seller in accordance with the provisions
of paragraph 7 within 10 years of Completion.
4.4 The Seller's liability under the Indemnity shall be limited in
accordance with the provisions of Clause 5, except for sub-Clause
5.14.2 (save for the proviso to sub-Clause 5.14) and sub-Clause 5.15,
the subject matter of which will be governed by the provisions of this
Schedule.
4.5 In the event that the Indemnitor (as defined in paragraph 6.1) either
incurs external charges, costs and expenses for environmental services
or internal charges for its own environmental services, in either case
including but not limited to testing and/or analytical services and/or
contaminated soil disposal facilities, in connection with or in
relation to any actual or potential Environmental Liabilities under
the Indemnity or Counter Indemnity (as appropriate) then such external
charges, costs and expenses shall be deemed to be payments made under
the Indemnity or Counter Indemnity (as appropriate). Any internal
charges shall be made on the same basis as the Indemnitor charges to
its own business or its Affiliates.
4.6 It is hereby expressly agreed that, save where the Seller has accepted
liability or becomes otherwise liable under the terms of the
Indemnity, all costs incurred by the Purchaser in carrying out
environmental analyses and tests of the Site(s) (and its (or their)
surrounds) shall be borne by the Purchaser.
4.7 The Seller shall be liable under the Indemnity for any
asbestos-related personal injury unless and to the extent that any
works carried out by the Purchaser or its Affiliates or the Company
after Completion, were not carried out by a reputable contractor or
contractors, who were duly and properly authorised or approved to
undertake such works to at least the standards of the relevant
federal, state or other regulatory authorities published by or in
operation (in accordance with good industry practice) at all times
during the carrying out of such works.
5 MITIGATION
The Purchaser shall take all reasonable steps after Completion to
avoid or mitigate any Environmental Liabilities and/or potential
Environmental Liabilities to the extent it is within the Purchaser's
power to do so, which may give rise to a claim under or in connection
with this Indemnity howsoever arising. Such steps will include but
shall not be limited to:
5.1 carrying out (where reasonably practicable) appropriate soil tests
before taking any action which is likely to cause a material
disturbance to soil;
5.2 where reasonably practicable carrying on its activities on the Site(s)
so as to minimise disturbance to known areas of existing or probable
soil contamination (other than deliberate removal of such contaminated
soil) without incurring abnormal unusual or excessive cost in so
doing;
5.3 the Purchaser (with the approval of the Seller not to be unreasonably
withheld or delayed) settling a claim of any party (not being an
Affiliate of the Purchaser) which will or may fall within the terms of
the Indemnity, the costs and expenses associated with such settlement
(so approved by the Seller) being deemed to be Environmental
Liabilities for the purposes of this agreement) provided always that
nothing in this paragraph 5.3 shall oblige the Purchaser to enter into
any settlement which it does not, in its sole discretion, consider to
be in the best interests of its operations;
5.4 making reasonable and timely efforts to pursue claims against any
third parties (including insurers) who may have some liability to the
Purchaser in respect of the matter in question provided always that
this shall not limit or restrict or operate in any way as a
pre-condition to the rights of the Purchaser to make a claim under
this Indemnity; and
5.5 using reasonable endeavours to avoid acts or omissions of the nature
described in paragraph 4.1.
6 NOTIFICATION
6.1 As soon as reasonably practicable after either party becomes aware of
any actual or potential Environmental Liabilities which may give rise
to a claim by it under the Indemnity or Counter Indemnity (the
"Claimant") (whether or not the Claimant is of the opinion that it has
a valid claim against the other party under the Indemnity or Counter
Indemnity (the "Indemnitor")) the Claimant shall give written notice
thereof to the Indemnitor (and thereafter will keep the Indemnitor
fully informed of all material developments relating thereto). Such
written notice shall include all material details of any actual or
potential Environmental Liabilities (including the Claimant's
reasonable estimate of the extent of and, where reasonably
practicable, the cost of remediation of the Environmental Liabilities,
as a result thereof).
6.2 Neither party shall admit, settle or discharge any claim or liability
which might constitute a claim against the other under the Indemnity
or Counter Indemnity (as appropriate) without having first served a
notice under this paragraph 6 and given the other a reasonable
opportunity to consider the circumstances referred to in the said
notice.
7 CLAIMS
In the event that the Claimant wishes to make a claim against the
Indemnitor under the Indemnity or Counter Indemnity (as appropriate)
then it shall do so by giving notice in writing of the same to the
Indemnitor giving such details as are then in its possession of the
relevant subject matter of such claim.
8 CONDUCT
If any notice is received by either party under paragraphs 6 or 7 the
Claimant shall if so requested by the Indemnitor take all steps which
are necessary and reasonable to avoid, resist, appeal, compromise or
defend any claim and any adjudication in respect thereof, (subject to
the Claimant being indemnified against all cost and expenses which may
reasonably and necessarily be incurred in connection therewith) and
the Indemnitor shall (subject to the provisions of this paragraph), at
its request, be allowed to conduct any negotiations, proceedings or
appeals incidental thereto PROVIDED ALWAYS that if the claim relates
to or arises from a Site which at the time is owned, occupied or used
by the Company and which is operational at the date of the notice
under paragraph 7 then the Purchaser shall have conduct of all
negotiations, proceedings or appeals incidental thereto but shall
nonetheless keep the Seller fully informed of all material
developments relating to the subject matter of the claims.
9 SITE ACCESS
If any notice is received by the Seller under paragraphs 6 or 7:
9.1 the Seller and/or its agents and contractors shall be free to have
access to any Site(s) to the extent it is within the power of the
Company, the Purchaser or its Affiliates, during normal business
hours, and after reasonable prior notice, and, if so required, in the
presence of an authorised representative of the Purchaser to assess
(including but not limited to assessment by soil sampling and testing)
the extent of the Environmental Liabilities and/or potential
Environmental Liabilities and to determine the action required in
order to remediate such liabilities; (such actions to be subject to
the prior agreement of the Purchaser (including as to the action to be
taken) such agreement not to be unreasonably withheld) and
9.2 the Purchaser shall (during normal business hours) allow the Seller or
its agents access to inspect and take copies of such books and records
of the business of the Company and/or the Purchaser relating to the
Site(s) as may be necessary in connection with any Environmental
Liabilities and/or potential Environmental Liabilities.
10 DISCUSSIONS
Upon either party having given a notice under paragraphs 6 or 7,
either the Seller or the Purchaser may request a meeting as soon as
practicable to discuss the matter (and if either does so the other
party shall comply promptly with such request) and, irrespective of
whether there has been any agreement on liability, each party shall be
fully involved in any discussions and/or negotiations with any party
imposing or seeking to impose any Environmental Liabilities.
11 DISPUTE RESOLUTION
Upon either party giving a notice in accordance with paragraph 7, in
the event that the Seller and the Purchaser are unable to agree
promptly any factual matter relevant to a claim under this Indemnity
or Counter Indemnity (as appropriate) or in the event of any other
matter being referred to the Experts in accordance with this Schedule
6 then the following provisions of this paragraph 11 shall apply:
11.1 a reputable independent firm of experts (the "Experts") (who shall act
as experts and not arbitrators) in relation to the Environment
relevant to the claim or potential claim (having at least ten years
relevant experience) shall be appointed by mutual agreement of the
parties hereto (and the parties shall each be obliged to use their
respective best endeavours to reach agreement as soon as practicable)
to resolve any factual matter in dispute between the parties but not
including any interpretation of laws or regulations as they apply to
such factual matters or any conclusions regarding responsibility or
liability for or in relation to any factual matters. The Experts shall
be offered the appointment within 15 Business Days of the parties
reaching such mutual agreement and shall be notified in writing of the
provisions of sub-paragraph 11.7 below. Failing such mutual agreement
on the appointment of Experts, the parties shall promptly refer the
issue, at their joint cost, to the President for the time being of the
Royal Institute of Chartered Surveyors in the United Kingdom with
instructions to appoint suitable Experts within fourteen (14) days of
receipt of such instructions;
11.2 the said Experts shall only be dismissed by the mutual agreement of
the parties hereto;
11.3 both parties shall promptly and simultaneously exchange with each
other and submit to the Experts, and in any event in accordance with
the Experts' written directions, their arguments and submissions in
connection with any matter of fact referred to him in accordance with
this paragraph 11;
11.4 following receipt by the Experts of the written arguments and other
submissions of the parties pursuant to paragraph 11.3, the parties
shall instruct the Experts to issue, as soon as reasonably
practicable, a formal written opinion pertaining to the matter of fact
referred to them. In any event the Experts shall be instructed to
present the said opinion within two months of receiving the written
arguments and other submissions of the parties pursuant to paragraph
11.3;
11.5 the formal written opinion of the Experts issued pursuant to paragraph
11.4 shall be conclusive in any proceedings between the parties hereto
as to the question of fact so determined;
11.6 the fees and expenses of the Experts shall be borne equally by the
Seller and the Purchaser (unless otherwise directed by the Experts);
and
11.7 the Experts, and any company, firm, partnership or other organisation
with which the Experts are connected shall not be eligible to be
considered to undertake any clean-up work in respect of the claim for
which they have so acted on or around the Site(s), save where the
parties hereto mutually agree to waive this provision. For the
avoidance of doubt, either party may withhold such consent in any
event.
12 ACCEPTANCE OF LIABILITY
In the event that the Seller admits that it has any liability to the
Purchaser under the Indemnity (or where the Seller agrees to accept
the Purchaser's claim as falling within the Indemnity notwithstanding
the fact that no Environmental Liability may at that point in time
have arisen):
12.1 the Seller shall have the right independently to determine whatever
measures are appropriate in order to remediate pursuant to applicable
Environmental Laws the subject matter of the claim under the Indemnity
and furthermore the Seller shall have the right independently to carry
out such remediation itself (or through suitable third party agents or
contractors) provided that in so doing the Seller (or its said agents
or contractors) shall be obliged to use reasonable endeavours to avoid
causing undue interruption to the conduct of the business of the
Company and/or the Purchaser;
12.2 the Seller and/or its agents and contractors shall, in addition to the
rights of access provided for in paragraph 9 above, be free to have
access to the Site(s) if currently owned, leased or, where within the
power of the Company and its Affiliates during normal business hours
after reasonable prior notice, and if so required, in the presence of
an authorised representative of the Purchaser, to carry out the
remediation referred to in paragraph 12.1 above.
13 STATEMENTS
In the event of any circumstances arising which do or may give rise to
Environmental Liabilities which may fall within the terms of the
Indemnity or the Counter Indemnity (as appropriate) neither the
Company, Purchaser nor the Seller (nor any of their respective
Affiliates) shall make any public statements (including, for the
avoidance of doubt, any statement to any regulatory authority, unless
required by law or in an emergency) regarding such circumstances
without first discussing with the other party and reaching written
agreement (such agreement not to be unreasonably withheld or delayed)
on the text of any such public statement before it is made.
14 GENERAL
14.1 Any information, records, or other material of one party shall be
treated as strictly confidential by the other party except when it is
required to be used in order to comply with an order of the court or
regulatory authority or it is used by the other party to enforce its
rights under this Schedule 6 or so as to make an insurance claim.
14.2 The Purchaser's and its Affiliates' exclusive remedies in respect of
any claims which fall within the scope of the Indemnity shall be in
accordance with the provisions of this Schedule 6, and the Purchaser
on behalf of itself and its Affiliates hereby waives all other
remedies whether in contract, tort (including, for the avoidance of
doubt, negligence), or howsoever otherwise arising which it may have
against the Seller or any of its Affiliates at law or in equity in
respect of the matters which fall within the scope of the Indemnity
and, for the avoidance of doubt, if such a claim under this Schedule
could also give rise to a Claim or a claim under any other provision
of this agreement in respect of the same subject matter, the Purchaser
may only bring a claim under this Schedule 6.
14.3 The Seller undertakes to co-operate with the Purchaser and assist the
Purchaser in achieving a transfer to the Purchaser (or as it directs)
of all Environmental Authorisations, permits and licences held by the
Seller at Completion.
15 CO-OPERATION
The Purchaser undertakes that wherever co-operation is required by the
Company to ensure compliance with the Purchaser's obligations
hereunder, the Purchaser will use its reasonable endeavours to ensure
that the Company provides the requisite co-operation.
SCHEDULE 7
(SUB-CLAUSE 1.7)
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Mahomed ▇▇▇▇▇▇
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▇▇▇▇▇ Milross
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SCHEDULE 8
GRIMSBY FINANCIAL INFORMATION
(SUB-CLAUSE 1.1)
GBP millions
Fixed Assets 74.46
Investments -
Stocks 11.18
Operating Debtors 1.65
Non Operating Debtors -
Operating Creditors
less than 1 year (8.88)
Non Operating Creditors
less than 1 year (0.51)
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77.90
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Net Debt -
Provisions -
Deferred Tax -
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-
SCHEDULE 9
ACTUARY'S LETTER
(Schedule 4)
ANNEX 1
(SCHEDULE 3 A.10)
DATA ROOM DOCUMENTS
GRIMSBY
ENVIRONMENTAL
CONSENTS
IPC Consents: 8.1.1/01, 8.5/05, 8.1.1/20, 18/29
Waste Disposal Consents: 1.1.1/196, 1.1.1/92, 8.3/21, 8.1.1/02,
8.1.1/03
Discharge Consents: 1.1.1/212
Water Abstraction Licences: 1.1.1/56, 1.1.1/57, 1.1.1/82
Radioactivity Licences: 8.1.1/12
REPORTS
8.2.3, 8.8.3/01, 8.3/01, 8.3/02, 8.3/03, 8.3/04, 8.6/02, 8.6/01,
8.6/03, 8.10/03, 17/03, 8.14/01, 8.7/01, 8.3/06, 8.3/11, 8.3/12,
8.3/17, 8.12/02, 8.12/03, 8.13/03, 8.3/23, 8.3/16, 8.8.1/01, 8.8.2/01,
8.2/01
REPLIES
18.35, 8.1.1/19, 18/15, 8.1.1/17, 8.3/27, 8.3/29, 8/02, 1.1.1/215,
18/54, 18/14, 18/52, 18/32, 18/36, 8.8.3/02, 8.8.3/03, 18/05, 8.6/01,
8.3/30, 18/07, 18/28
IP
3.1/01 Technology Transfer Agreement between TGL, TGI,
TGSL and EI Du Pont de Nemours
3.1/02 Name Agreement between TEL, TAI and EI Du Pont
de Nemours
3.1/03 Name Agreement between TGL, TCI and EI Du Pont
de Nemours
3.1/04 Name Agreement between TEL, TGL, TGSL and EI Du
Pont
3.1/05 Assignment and Substitution Agreement between
TGL, TGSL, EI Du Pont de Nemours and Company
and ICI
3.1/06 Patent and Know-how Licence between TCI and EI
Du Pont
4.2/01 Note on Barnburgh IT Systems dated 26/3/98 from
▇▇▇ ▇▇▇▇▇▇ Tioxide Group IT Manager
4.3/05 Grimsby IT Systems Map
4.3/06 Tioxide UK IT Systems Map
4.6/01 Audit Report on Grimsby Site following a review
of compliance with Millenium Programme
4.6/02 Millenium Compliance - Grimsby
4.3/07 Standard Software Licence for OSI software
(Factory Information Systems)
4.3/11 Agreement between Tioxide Europe and Aspen
Technology in relation to Calciner Control
software
5.20/02 Response - Grimsby Information Technology
structure and employee details
PENSIONS
6.1/07 Response to questions re: Pension Fund (Ref:
No. P6)
18/06 Response to Question P1 relating to the Tioxide
Pension Fund
EMPLOYMENT
5.1/01 Principal Terms and conditions of Employment
5.1/30 ▇▇▇▇▇ ▇▇▇▇ Employment Contract
5.3/02 List of contractors with which Tioxide has
agreed rates
5.16/03 List of all current employee claims (Ref: No.
LIT5)
5.30/01 List of Grimsby leadership team and staff
members
10.1/05 Details of UK personal injury claims relating
to Grimsby (current and archived)
CONTRACTS
2.1/02 Agreement between British Railways Board and
Tioxide Europe for the movement of
non-hazardous chemical gypsum waste by rail.
2.1/47 Contract between (1) Tioxide Group Plc (now
Tioxide Group Ltd) as agent for Tioxide Europe
SA (Spain) and (2) Westralian Sands Ltd. for
the supply of ilmenite.
2.1/50 Agreement between Tioxide Group Services Ltd
and [ ] for the supply of copperas.
18/19 Agreement for sale of gypsum to major contract
customer.
TAX
1.2.2/01 Details of tangible assets with a depreciated
value in excess of (pound)100,000.
PROPERTY
1.1.1/146 Land Certificate of Great ▇▇▇▇▇▇, Grimsby.
Title number HS98246 - Proprietor being Tioxide
Europe UK Ltd together with plan
18/13 Response to Question 0P1 relating to the use of
the Landfill Site on Humber Road
1.1.1/197 Licence between Associated British Ports
("ABP") and Tioxide Europe Limited regarding
land at the south west corner of Immingham Dock
of 5.1 acres, dated 15 November 1991
POTENTIAL LITIGATION
10.1/01 Correspondence with ▇▇▇▇▇ re: potential dispute
10.1/02 Summary of a potential claim by AAF Ltd
10.1/03 Summary of a potential claim against ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ & Sons Ltd
10.1/04 Summary of a potential claim by ▇▇▇▇▇
10.1/06 Summary of potential personal injury claim
10.1/11 Latest correspondence with ▇▇▇▇▇
MISCELLANEOUS
18/03 Response to NL/Kronos questions on North
American streaming and capability
5.12/04 Description of industrial accidents 1995 and
1996
5.12/02 List of industrial accidents 1996 - 1998
5.16/02 List of estimated claims settlements for
1993-1997 claims
1.2.2/01 Details of Tangible Assets with a depreciated
value in excess of GBP100,000
5/02 Grimsby & ▇ ▇ ▇▇▇▇ Response re: breakdown of
manufacturing costs
18/02 Requested financial information
18/37 Response - analysis of debtor and creditor
balances for Grimsby and ▇ ▇ ▇▇▇▇
18/62 Variable selling cost from Grimsby Works to
America
8.2/02 Schedule of Grimsby Car Damage Claim
18/21 Response to Q.F9 relating to neutralisation
costs
SIGNATURES
SIGNED by }
for and on behalf of
TIOXIDE EUROPE LIMITED
SIGNED by }
or and on behalf of
N L INDUSTRIES, INC
