APPENDIX C
WARRANTIES
PART 1: GENERAL
1. The terms defined in the agreement and used in this Appendix C shall
bear the same meanings in each case, save to the extent which is
contrary to, or otherwise indicated by, the context or save as
otherwise indicated in this Appendix.
2. The warranties in favour of the purchaser shall apply mutatis
mutandis to each of the subsidiaries.
PART 2: WARRANTIES
The seller warrants that :
A. to the best of the seller's knowledge and belief; and
B. save as recorded in the agreement:
1. On the closing date:
1.1 the company will be incorporated according to the laws of the
British Virgin Islands and the purchaser shall have been provided
with copies of the company's organizational charts;
1.2 the authorised and issued share capital of the company will be as
disclosed in the accounts;
1.3 all of the issued shares in the capital of the company will be of
one class and will rank pari passu with each other;
1.4 the company will not be under any obligation, whether
contingently upon the exercise of any right or otherwise, and no
resolution will have been passed, requiring the company to
increase or to reduce its authorised or issued share capital or
to vary any of the rights attaching to its issued shares;
1.5 the seller will be entitled, able to and shall give free and
unencumbered title to the sale shares sold by it under the
agreement;
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1.6. no person will have any right (including inter alia, any option
or right of first refusal) to acquire any of the present or
future shares in the company;
1.7. no person will have any right to obtain an order for the
rectification of the register of members of the company;
1.8. the books and records of the company will have been properly
maintained according to law and will be capable of being written
up within a reasonable time so as to record all of the
transactions of the company;
1.9. the minute book of the company will contain all of the
resolutions passed by its directors and members;
1.10. the company will not be bound by any contracts, whether oral,
written or otherwise, other than those contracts entered into in
the ordinary and normal course of business;
1.11. the company will not knowingly be in breach of any law;
1.12. the company will have maintained a register of its assets in
accordance with generally accepted and sound accounting
practices;
1.13. the assets of the company will not be subject to any hire
purchase agreement, lease, pledge, mortgage, lien, notarial bond
or other right in favour of any third person;
1.14. no person will have any right (including, inter alia, any option
or right of first refusal) to purchase any of the assets of the
company other than their merchandise in the ordinary course of
business;
1.15. the company will not be liable, whether contingently or otherwise
and whether as surety, co-principal debtor, guarantor or
indemnifier, for the liabilities of any third party;
1.16. the company will not have any liabilities, whether actual,
contingent or otherwise, save in respect of the supply of goods
and services for normal operations incurred in each case in the
ordinary course of conduct of the business of the company;
1.17. all of the patents, trade marks and designs used by the company
will be registered in its name either as the owner or lawful
user;
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1.18. no employee of the company will be entitled to any exceptional
leave privilege, accumulated leave, payment in lieu of leave,
pension or the like;
1.19. there will be no unfunded deficit in respect of any future
liability of any pension fund of which any of the company's
employees as at the signature date will be members; provided that
if there is any such deficit in respect of services of any such
employees for periods up to the signature date, as certified by
any actuary for the time being of the pension fund, whether the
company has any liability in respect thereof or not, then without
prejudice to the purchaser's right as a result of the breach of
this warranty the purchaser will be entitled to claim payment
from the seller of an amount equal to the amount of such unfunded
deficit;
1.20. the company and its assets will be insured against the risks to
which they are subject for amounts which accord with sound
business practice, for a period terminating not earlier than
thirty days after the closing date, all premiums due in respect
of such insurance will have been paid and the company will have
complied with all of the conditions to which the liability of the
insurers under the policies of insurance will be subject.
2. Between the signature date and the closing date:
2.1. the company will have continued to carry on business in the
ordinary and regular course;
2.2. the company will have continued to trade in accordance with the
trading style presently adopted by it;
2.3. no dividends will have been declared or paid by the company;
2.4. the assets of the company will have continued to be in good order
and condition and fully operational apart from breakdowns (in the
ordinary course), any loss or damage to or destruction of such
assets beyond its control; provided that any such loss, damage or
destruction will have been fully insured for the benefit of the
company;
2.5. none of the assets of the company will have been sold or
otherwise disposed of except in the ordinary course of business;
2.6. the company will not have varied the terms of employment of or
remuneration payable to any of its employees, directors or
officers nor will the company agree to any compensation or other
benefits payable on or in connection with the termination of, or
retirement from employment or office of, any such persons;
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2.7. the company will not have incurred or become committed to incur
any capital expenditure;
2.8. the company will not have entered into any transaction save in
the ordinary and regular course of conduct of its business;
2.9. no resolutions will have been passed by the members or directors
of the company, save for such resolutions as:
2.9.1. may have been necessary to give effect to this agreement;
2.9.2. will have been approved by the purchaser in writing, which
approval may not be unreasonably withheld;
2.10. the company will not have done or omitted to do anything which
will:
2.10.1. materially prejudice its continued goodwill;
2.10.2. reduce the scope of its business;
2.10.3. result in any business associate of the company ceasing to
transact business with the company or to vary the terms upon
which it transacts business with the company;
2.11. there will have been no material adverse change in the company's
financial position.
3. The company is not engaged in any litigation, income tax appeals,
arbitration or criminal proceedings (other than proceedings for
the collection of debts from trade debtors in the ordinary course
of business). Having made all reasonable enquiries, the sellers
are not aware of any facts, matters or circumstances which may
give rise to any such litigation, income tax appeals, arbitration
or criminal proceedings.
4. Having made all reasonable enquiries, the seller is not aware of
any facts, matters or circumstances including, but not limited
to, the consummation of the transactions contemplated by this
agreement which may give rise to:
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4.1. the company's licences, consents, permits, approvals and
other authorities being cancelled or not being renewed in
the future or only being renewed subject to the imposition
of onerous terms;
4.2. the cancellation of any of the contracts by which the
company is bound whether as a result of any breach thereof
by the company;
4.3. the cancellation of any of the policies of insurance
referred to in 1.20 or the repudiation of any claims
thereunder or to such policies not being renewed in the
future or only being renewed subject to the imposition of
onerous terms.
5. Save to the extent that it is provided otherwise in the
agreement, the accounts of the company and the most recent
accounts of the subsidiaries have been prepared:
5.1. in accordance with generally accepted and sound accounting
practices;
5.2. in a manner such as fairly to present the state of affairs,
operations and results of the company as at the date thereof and
for the periods to which they relate;
5.3. in accordance with the provisions of the relevant legislation;
and
5.4. unless inconsistent with 5.1, on the same bases and applying the
same criteria as applied in the preparation of the financial
statements of the company during previous years.
6. This transaction does not constitute a breach of the company's
contractual obligations nor will it entitle any person to
terminate any contract to which the company is a party or any
person to exercise any pre-emptive rights with respect to all or
any part of any of the assets of the company.
7. The trading methods and style used by the company including any
designs, marks and the like applied in connection with its
business or products do not constitute an infringement of the
rights of any other person.
8. No person is entitled to an order requiring the company to change
its corporate name, trading style, or to cease using any of the
marks or designs applied by it to its products.
9. No person is entitled to an order for the expungement of the
company's patents, designs or trade marks.
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10. At the signature date, no work remained to be performed, and no
expense remained to be incurred, in connection with:
10.1. the completion of the company's financial statements in
respect of any of its financial years ended prior to the
signature date;
10.2. the submission of any other return required by law to have
been submitted by the company to any competent authority
prior to the signature date; and
10.3. the submission of the company's and each of its subsidiaries
income tax returns in respect of any of its financial years
ended prior to the signature date.
11. The seller has disclosed to the purchaser all facts and
circumstances material to this transaction and which would be
material or would be reasonably likely to be material to a
purchaser of the sale shares and the purchase consideration
payable in respect thereof.
12. No dividends or profits of any kind will have been or will be
declared, paid and/or distributed in any way by the company
between the signature date and the closing date.
13. No professional indemnity claims, actions or litigation shall
have been made, taken or instituted against the company and not
have been fully disposed of prior to the signature date or not
adequately and fully covered by insurance.
14. The company does not require any major capital expenditure nor
does it require any further equipment for any of its operations.
15. None of the equipment of the company has any major defects of any
kind and all specialised and other equipment of the company is
serviced regularly and in accordance with the recommendations of
the relevant manufacturer and/or suppliers thereof.
16. No agreements of any kind have been entered into by the company
with any trade unions and the present status of the agreements
and relationship with any such trade unions has been disclosed
fully and correctly to the purchaser.
17. The company does not have any disputes or disagreements with or
demands from any trade unions and the sellers are not aware of
any such potential disputes and/or claims.
18. The contractual relationship between the company and any of its
suppliers of goods and/or services is capable in each case of
being terminated on not more than three month's notice without
any penalty being incurred.
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19. All contracts, leases, undertakings, legal commitments and the
like which have been entered into and/or furnished by the company
have been entered into on an arms-length basis.
20. On the closing date, all amounts owing as at the signature date
by debtors of the company shall have been paid to such an extent
that the amount thereof still owing on the closing date shall not
be in excess of the provision for bad debts in respect thereof.
21. Between the incorporation of the company and the closing date the
company will not have made an award of any capitalisation or
bonus shares.
22. The company will not have transferred any amount from reserves
(excluding any share premium account) or profits to its stated
capital, share capital or share premium account at any time prior
to the closing date.
23. The seller has disclosed in writing to the purchaser all queries
addressed to the company or any of its representatives by any tax
official and the replies thereto, as well as full details of any
tax objections lodged by the company and which have not been
fully disposed of.
