EXHIBIT 10.18
DATED NOVEMBER 1999
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X.X. XXXXXX ESQ. AND OTHERS (1)
AND
X X XXXXXX LIMITED (2)
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AGREEMENT
FOR THE SALE/PURCHASE OF THE ENTIRE ISSUED SHARE
CAPITAL OF XXXXXXX XXXXXX GROUP LIMITED
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XXXXXX XXXX
London
CONTENTS
PAGE
RECITALS
CLAUSE HEADING
1 Definitions and interpretation...................................1
2 The Dividend.....................................................8
3 Sale of the Sale Shares..........................................8
4 Consideration....................................................9
5 Completion.......................................................9
6 Post-Completion matters and indemnity...........................12
7 Representations and warranties..................................14
8 Claims for breach of warranty or undertaking....................15
9 Professional Negligence and other indemnities...................16
10 Restrictive covenants...........................................20
11 Continuing effects of this Agreement............................22
12 Announcements...................................................22
13 Releases, waivers etc., by the Purchaser........................23
14 Notices.........................................................23
15 Entire Agreement................................................24
16 Alterations.....................................................24
17 Severability....................................................25
18 Counterparts....................................................25
19 Payment of Costs................................................25
20 Successors and Assigns..........................................25
21 Applicable law and submission to jurisdiction...................26
Schedule 1 The Vendors......................................................27
Schedule 2..................................................................33
Part A - The Warrantors.........................................33
Part B - The Associates.........................................33
Schedule 3 The Company......................................................34
Schedule 4 The Subsidiaries.................................................35
Part A - The Direct Subsidiaries................................35
Part B - The Indirect Subsidiaries..............................49
Schedule 5 Matters represented and warranted................................74
Part A - General................................................74
Part B - Taxation..............................................108
Schedule 6 The Properties..................................................115
Part A - English Properties....................................115
Part B - Non-UK Properties.....................................116
Schedule 7 Directors and employees.........................................118
Part A - Additional Directors..................................118
Part B - Persons to receive Service Agreements.................118
Schedule 8 Provisions for the protection of the Warrantors.................119
Schedule 9 Arrangements relating to the Escrow Amount......................128
AGREED FORM DOCUMENTS
DOCUMENT CLAUSE
Contribution Agreements 1.1
Disclosure Bundle 1.1
Key Employment Agreements 1.1
Loan Notes 1.1
Management Accounts 1.1
Taxation Deed 5.1(a)(iv)
List of matters reported to the Company's E&O insurers 9.1
THIS AGREEMENT is dated ................ November 1999 and is made BETWEEN:
(1) THE PERSONS whose names and addresses are stated in schedule 1
(together the "VENDORS" and each individually a "VENDOR"); and
(2) X X XXXXXX LIMITED a company registered in England under number
3864576 whose registered office is at 00-00 Xxxxx Xxxxxx, Xxxxxx X0
0XX ("THE PURCHASER")
NOW IT IS HEREBY AGREED as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 In this Agreement unless the context otherwise requires:
"ACCOUNTING PERIOD" has the meaning given in section 12 ICTA 1988;
"THE ACCOUNTS" means the Company's audited consolidated accounts (as
defined in section 262 CA 1985) for the financial year ended on the
Accounts Date, including the notes to those accounts and the
associated directors' and auditors' reports and any profit and loss
account omitted in reliance on section 230(3) CA 1985;
"THE ACCOUNTS DATE" means 31 December 1998;
"ACTUAL TAXATION LIABILITY" in relation to any person, means a
liability of that person to make payment of, or of an amount in
respect of, Taxation, whether or not such Taxation is also or
alternatively chargeable against or attributable to any other
person;
"ASSOCIATES" means in relation to each of the Warrantors the persons
listed beneath the name of that Warrantor in Part B of schedule 2;
"THE AUDITORS" means the auditors of the Company namely Mazars
Xxxxxxx Xxxxxxx, Chartered Accountants, of 00 Xxxxx Xxxxx, Xxxxxx
XX0X 0XX;
"BUSINESS" means the business of providing insurance broking and
associated or ancillary services to the Clients (including without
limitation, broking risks related to personal accident and health,
reinsurance, travel, property and casualty, aviation and space,
bloodstock, marine, political and financial and film and
entertainment, Lloyd's and non-Lloyd's business carried on by the
Group);
"BUSINESS DAY" means a day on which banks are ordinarily open for
the transaction of normal banking business in London;
"CA 1985" means the Companies Xxx 0000;
"CLIENTS" means any person who is or has been a client of the
Business during the period of 24 months immediately preceding the
Completion Date including those persons whose names are listed in
the list of clients in the Disclosure Bundle;
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"CLIENT CONTRACTS" means the benefit, subject to the burden, of all
contracts or arrangements between any Group Company and the Clients;
"CLIENT CREDITORS" means the aggregate amount owed as at the
Completion Date by the Company to Clients in connection with the
Business, whether by transmission of claims settlement monies
received from insurers, refunds of premiums for the unexpired period
of insurance policies post cancellation, rebates of commission
generated by sales of policies prior to the Completion Date, or
otherwise and whether or not the same are recorded in the books of
account of the Company at the Completion Date;
"THE COMPANY" or "CWG" means Xxxxxxx Xxxxxx Group Limited (No.
1195662);
"COMPLETION" means completion of the sale and purchase of the Sale
Shares by the performance by the parties of their respective
obligations under clause 5.1;
"COMPLETION AMOUNT" means the sum of(pound)16,450,638;
"THE COMPLETION DATE" means 19 November 1999 or such later date (not
being after 31 December 1999) as the parties may agree;
"THE CONFIDENTIAL INFORMATION" means trade secrets and information
equivalent to them (including but not limited to formulae,
processes, methods, knowledge and Know-how) in connection with the
products distributed and sold and the services supplied by the Group
and which are for the time being confidential to any Group Company;
"CONTINUING CHARGES" means the charges registered against CWG and
the Lloyd's Company referred to in the fax dated 24 November 1999
from the Purchaser's Solicitors to Mr Xxxx Xxxxx of CWG;
"CONTINUING LOANS" means the outstanding loans by the Company in
favour of:
(a) Xxxxxxx Xxxxxxxxx, Xxxxxx Xxxxxxxx and Xxxxx Sales; and
(b) any of the Company's employees to cover season ticket
loans in respect of their travel to work;
"THE CONTRIBUTION AGREEMENTS" means the agreements in the agreed
form to be entered into by each of the Warrantors with his
Associates and the Purchaser;
"DESIGNATED VENDORS" means those of the Vendors to whom the Loan
Notes will be issued by the Purchaser and against whose names an
asterisk appears in schedule 1;
"DISCLOSURE BUNDLE" means the copy documents numbered 1 to 1218
inclusive in the agreed form contained in the 37 lever arch files
plus the original deeds and documents relating to the English
Properties set out in Part A of schedule 6 and listed in the
schedule comprising disclosure document number 1208 which are deemed
to form part of the Disclosure Letter and in the case of the said
lever arch files are annexed thereto;
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"THE DISCLOSURE LETTER" means the letter of the same date as the
Completion Date from the Warrantors to the Purchaser disclosing
certain matters in relation to the Warranties which has been
delivered to the Purchaser prior to the execution of this Agreement;
"DIVIDEND" means the interim dividend which has been declared by the
Company immediately prior to Completion in accordance with clause
2.1 in the aggregate sum of (pound)5,000,000;
"EMPLOYEE SHARE OWNERSHIP TRUST ACCOUNT" means the account no.
00000000, sort code 51-50-14 with National Westminster Bank plc in
the name of Xxxxxxx Xxxxxx Group plc's Employees Trust being the
Company's employee trust fund account;
"ESCROW ACCOUNT" means the escrow account set up and operated in
accordance with schedule 9 being the account no. 00000000 with
National Westminster Bank plc, Xxxxxx Xxx Xxxxxx, 000 Xxxxxx,
Xxxxxx, sort code 60-80-08 in the joint names of the Vendors'
Solicitors and the Purchaser's Solicitors;
"ESCROW AMOUNT" means the sum of(pound)2,475,000;
"ESOT" means the Company's employee share ownership trust;
"THE GROUP" means the Company and the Subsidiaries;
"GROUP COMPANY" means each and any body corporate in the Group;
"GUARANTEE" means any guarantee, indemnity, suretyship, letter of
comfort or other assurance, security or right of set-off given or
undertaken by a person to secure or support the obligations (actual
or contingent) of any third party and whether given directly or by
way of counter-indemnity to any third party who has provided a
Guarantee but excluding any guarantee given to any third party
pursuant to Lloyd's jurisdiction or regulation (including any
Lloyd's brokers security and trust deed and any guarantee in respect
of Lloyd's membership);
"HERITAGE PROVISION" means the provision of (pound)690,000 made in
the Accounts to cover any liability of Xxxxxxx Xxxxxx & Company
Limited or any other Group Company to repay brokerage in the event
that the underwriters succeed on their claims to avoid ab initio
certain reinsurance contracts placed in respect of Heritage;
"IBA" means the one or more insurance broking accounts maintained or
operated by any Group Company;
"IBRC" means the Insurance Brokers Registration Council;
"ISB" means International Space Brokers Inc.;
"ICTA 1988" means the Income and Corporation Taxes Xxx 0000;
"INTELLECTUAL PROPERTY RIGHTS" means all patents, registered
designs, trade marks and service marks (whether registered or not),
domain names, copyright,
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design rights, rights in databases and all similar property rights,
including those subsisting (in any part of the world) in inventions,
designs, drawings, performances, computer programs, semiconductor
topographies, plant varieties, confidential information, business or
brand names, goodwill or the style of presentation of goods or
services and in applications for protection thereof;
"KEY EMPLOYEES" means Xxxxxxx Xxxxx Xxxxxx, Xxxx Xxxxxxxx Xxxxx,
Xxxxxxx Xxxxxxxxx and Xxxxxxx Xxxxxxx;
"KEY EMPLOYMENT AGREEMENTS" means the employment agreements in the
agreed form between the Company and the Key Employees;
"KEY VENDORS" means Xxxxxxx Xxxxx Xxxxxx, Xxxx Xxxxxxxx Xxxxx, Xxxx
Hyem and Xxxxxxx Xxxxxxxxx Hemmings;
"KNOW-HOW" means all industrial and commercial information and
techniques, accounts, records and information (wherever situate)
pertaining to the activities of the Group;
"LLOYD'S" means the Society of Lloyd's incorporated under the
Lloyd's Acts 1871-1982 acting as a corporation, or through the
Council of Lloyd's, or any other body acting under its authority;
"LLOYD'S COMPANY" means Xxxxxxx Xxxxxx & Company Limited;
"LOAN NOTES" means the loan notes of (pound)1 in the agreed form to
be issued by the Purchaser to the Designated Vendors in accordance
with clause 5.1(c)(ii), each holding of Loan Notes being issued in
respect of a principal sum equal to such part of the Completion
Amount as each Designated Vendor elects to take in the form of Loan
Notes as set out in column (5) of schedule 1 and which would
otherwise be payable in cash to each of the Designated Vendors;
"THE MANAGEMENT ACCOUNTS" means the consolidated management accounts
of the Company for the period from 1 January 1999 to 30 June 1999
(both dates inclusive) in the agreed form;
"NET RETAINED BROKERAGE" means the amount of brokerage commission
received or receivable by the Company attributable to the Business
properly retained by the Company net of (i) payment of any
sub-commission or other payment due to any third party and (ii) any
brokerage repaid or returned;
"NOMINATED ACCOUNT" means the Vendors' Solicitors' client account
numbered 21384533 at National Westminster Bank PLC of Xxxxxx Xxx
Xxxxxx, 000 Xxxxxx, Xxxxxx XX0X 0XX - Sort Code 60-80-08 or such
other account or accounts as the Vendors' Solicitors shall specify;
"PROHIBITED AREA" means the UK and Republic of Ireland, the United
States (including, but not restricted to the states of Georgia,
Illinois, California, Kansas, Texas, Indiana, Florida, Minnesota and
the Commonwealth of Massachusetts), Australia (including, but not
restricted to New South Wales), Bermuda and the island of Cyprus;
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"THE PROPERTIES" means the leasehold properties details of which are
set out in schedule 6;
"PURCHASER'S GROUP" means the Purchaser together with its
subsidiaries and any parent company of the Purchaser and all of such
parent company's or companies' subsidiaries;
"THE PURCHASER'S SOLICITORS" means Xxxxxx Xxxx, of Xxxxxxx Xxxxx,
Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX;
"RELATED COMPANY" in relation to any company means any subsidiary or
holding company of that company or any subsidiary of that holding
company;
"RELEVANT BREACH" means any event, matter or circumstance which is
inconsistent with, contrary to or otherwise a breach of any of the
Warranties (as qualified by clause 7.2(a));
"RELEVANT CLAIM" means a claim by the Purchaser involving or
relating to a breach of any of the Warranties;
"RELIEF" means any loss, relief, allowance, exemption, set-off,
deduction, credit or other relief relating to any Taxation or to the
computation of income, profits or gains for the purposes of any
Taxation;
"RESPECTIVE PROPORTIONS" means (in relation to the Vendors) the
respective proportions shown in column (4) of schedule 1 (being the
proportions in which the Sale Shares are held by the Vendors as
shown in column (3) of that schedule);
"THE RESTRICTED SERVICES" means:
(a) all services which are supplied by any Group Company or
International Space Brokers Xxx.xx the Completion Date
(including without prejudice to the generality of the
foregoing, the Business); and
(b) any other services which are similar to and competing
with any of the services referred to in (a) above;
"THE SALE SHARES" means the 10,000,000 issued Ordinary Shares of 10p
each of the Company referred to in column (3) of schedule 1;
"SECURITY INTEREST" means a mortgage, lien, pledge, charge,
hypothecation or other security interest (or an agreement or
commitment to create any of them), but excluding:
(a) any lien arising in the ordinary course of business to
secure amounts which are not material;
(b) any unpaid vendor's or supplier's lien arising in the
ordinary course of any Group Company's trading business
to secure amounts due in respect of goods or services
sold or supplied;
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(c) liens arising by operation of law, including a banker's
lien; and
(d) any Lloyd's broker security and trust deed;
"THE SUBSIDIARIES" means the companies and undertakings specified in
schedule 4 and for the purposes of the Warranties set out in
schedule 5, clause 9.1(d), the Taxation Deed and schedule 8 shall be
deemed to include ISB and its subsidiaries European Space Brokers
S.A. and ISB Asia/Pacific Pte Limited;
"SUBSIDIARY" means a subsidiary undertaking (as defined by section
258 CA 1985);
"TAXATION" has the meaning given to that expression in the Taxation
Deed;
"TAXATION AUTHORITY" has the meaning given in the Taxation Deed;
"THE TAXATION DEED" means the taxation deed in the agreed form to be
entered into between the Warrantors (1) and the Purchaser (2);
"THE TAX WARRANTIES" means the Warranties as to the matters stated
in part B of schedule 5;
"TCGA 1992" means the Taxation of Chargeable Gains Xxx 0000;
"THE TERMINATION DATE" (in relation to either of X X Xxxxxx or J
Xxxxx) means the date of termination (for whatever reason and
whether in breach of contract or not) of the Key Employment
Agreement to be entered into pursuant to clause 5.1(d)(iii) between
the Company and that Key Employee;
"THE TDR PROVISION" means the unused balance of the US$290,000
provision made in CWG's consolidated management accounts up to 31
October 1999 to provide for any liability arising from the
investigations carried out by the Texas Department of Revenue in
relation to International Accident Facilities Inc and International
Accident Facilities (Texas) Inc. in respect of unpaid surplus lines
tax;
"THE VENDORS' SOLICITORS" means Crockers Xxxxxx Xxxxxxx, of 00 Xxxxx
Xxxxxx, Xxxxxx XX0X 0XX;
"WARRANTIES" means the representations and warranties referred to in
clause 7.1;
"THE WARRANTORS" means those persons whose names are stated in Part
A of schedule 2;
"WARRANTOR PROPORTIONS" means (in relation to the Warrantors) the
respective proportions shown in column (2) of Part A of schedule 2
(being the proportions in which the Warrantors undertake to pay the
Purchaser in the event of a Relevant Breach or a breach of the
Taxation Deed).
1.2 In this Agreement unless the context otherwise requires:
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(a) a document expressed to be "IN THE AGREED FORM" means a
document in a form which has been agreed by the parties
contemporaneously with or before the execution of this
Agreement and which has, for the purposes of
identification, been signed or initialled by them or on
their behalf;
(b) references to a clause or schedule are to a clause of,
or a schedule to, this Agreement, references to this
Agreement include its schedules and references in a
schedule or part of a schedule to a paragraph are to a
paragraph of that schedule or that part of that
schedule;
(c) references to this Agreement or any other document or to
any specified provision of this Agreement or any other
document are to this Agreement, that document or that
provision as in force for the time being and as amended
from time to time in accordance with the terms of this
Agreement or that document or, as the case may be, with
the agreement of the relevant parties;
(d) references to any English legal term for any action,
remedy, method of judicial proceeding, legal document,
legal status, Court, official or any legal concept or
thing shall in respect of any jurisdiction other than
England be deemed to include what most nearly
approximates in that jurisdiction to the English legal
term;
(e) words importing the singular include the plural and vice
versa, words importing a gender include every gender and
references to persons include corporations;
(f) the contents table and the descriptive headings to
clauses, schedules and paragraphs are inserted for
convenience only, have no legal effect and shall be
ignored in the interpretation of this Agreement;
(g) all agreements, obligations and liabilities (other than
in respect of the Warranties, the Taxation Deed and the
restrictive covenants in clause 10 or otherwise where
specifically provided to the contrary) on the part of
the Vendors or any two or more of the Vendors are joint
and several and shall be construed accordingly.
1.3 In this Agreement, unless the context otherwise requires:
(a) "enactment" means any statute or statutory provision
(whether of the United Kingdom or elsewhere),
subordinate legislation, as defined by section 21(1)
Interpretation Xxx 0000, and any other subordinate
legislation made under any such statute or statutory
provision;
(b) a reference to any enactment shall be construed as
including a reference to:
(i) any enactment which that enactment has
directly or indirectly replaced (whether
with or without modification); and
(ii) that enactment as re-enacted, replaced or
modified from time to time, whether before,
on or after the date hereof save to the
extent
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that the liability of any party hereunder
would thereby be increased or extended.
2 THE DIVIDEND
2.1 The Dividend, which has been declared by the Company immediately
prior to Completion shall be paid on 30th November 1999 to the
members on the register on the date of such declaration and the
Purchaser hereby undertakes to provide the Company with sufficient
funds to enable the Dividend to be paid.
3 SALE OF THE SALE SHARES
3.1 The Vendors shall sell to the Purchaser and the Purchaser (relying,
as the Vendors acknowledge, on the representations, warranties,
undertakings and indemnities of the Vendors and the Warrantors (or
any of them) referred to or contained in this Agreement or the
Taxation Deed) shall purchase from the Vendors the Sale Shares.
3.2 (a) (i) Subject to clauses 3.1 and 3.2(a)(ii) the
Vendors shall sell and transfer the Sale
Shares free from all encumbrances and
(subject thereto) with full title guarantee.
(ii) Where any of the Vendors are stated in
schedule 1 to be trustees, those Vendors
shall sell and transfer free from all
encumbrances and with limited title
guarantee such of the Sale Shares as are
held by them in that capacity.
(iii) For the purposes of this clause 3.2
"encumbrances" includes all claims, liens,
charges, encumbrances and equities and other
rights exercisable by third parties.
(b) The transfers of the Sale Shares to the Purchaser shall
be deemed to include expressly and be made subject to
all the foregoing provisions of this clause 3.2.
3.3 Title to, beneficial ownership of, and any risk attaching to, the
Sale Shares shall pass on Completion and the Sale Shares shall be
sold and purchased together with all rights and benefits attached or
accruing to them at Completion (including the right to receive all
dividends, (other than the Dividend) distributions, or any return of
capital declared, paid or made by the Company) on or after
Completion.
3.4 Each of the Vendors hereby waives any rights of pre-emption
conferred on him by the Articles of Association of the Company or
otherwise over Sale Shares hereby agreed to be sold by the other
Vendors.
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3.5 The Purchaser shall not be obliged to complete the purchase of any
of the Sale Shares unless the purchase of all the Sale Shares is
completed simultaneously.
4 CONSIDERATION
4.1 The consideration for the sale of the Sale Shares shall be:
(a) the payment by the Purchaser in cash to the Vendors
(other than the Designated Vendors in so far as they do
not elect to take all or part of the Consideration due
to them in cash) in their Respective Proportions on
Completion of the Completion Amount;
(b) the issue by the Purchaser of Loan Notes to the
Designated Vendors for all or that part of the
Consideration due to them as they may elect to receive
in the form of Loan Notes; and
(c) the payment by the Purchaser into the Escrow Account of
the Escrow Amount.
4.2 If and to the extent that there is any unused balance relating to
the Xxxxxxx Receipt (as defined in paragraph 14 of schedule 8) after
the operation of the set-off provisions set out in paragraph 13 of
schedule 8 the Purchaser shall within 5 working days of the
calculation of such unused balance pay to the Vendor's Solicitors
(for the account of the Vendors) a sum equal to 50 per cent. of such
unused balance.
4.3 The Purchaser shall calculate the unused balance relating to the
Xxxxxxx Receipt within 2 months after the expiry of the fourth
anniversary of the Completion Date and shall notify the Key Vendors
of the amount so calculated as soon as possible after such
calculation is made.
4.4 If a Xxxxxxx Receipt is received by the Purchaser after the expiry
of the fourth anniversary of the Completion Date then the Purchaser
shall as soon as reasonably practicable pay to the Vendors'
Solicitors (for the account of the Vendors) a sum equal to 50 per
cent. of such Receipt.
4.5 If there shall be any dispute between the parties as to the amount
of any payment to the Vendors under clause 4.2 the matter or matters
in dispute shall be referred to the auditors of the Company for the
time being. The said auditors shall act as experts and not as
arbitrators, their decision shall be final and binding upon the
parties hereto and their costs shall be borne between the parties as
they (the auditors) shall think fit.
5 COMPLETION
5.1 Completion shall take place at the offices of the Purchaser's
Solicitors or at such other place as the parties may agree on the
Completion Date when the following business (but not part only
unless the Purchaser shall so agree) shall be transacted:
(a) The Vendors shall deliver to the Purchaser:
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(i) transfers in respect of the Sale Shares duly
executed and completed in favour of the
Purchaser or as it may direct or have
directed, together with the certificates
therefor and the duly executed powers of
attorney or other authorities under which
any of the transfers have been executed and
certified copies of the Minutes recording
the Resolution of the trustees of such of
the Vendors as are trustees, in each case
authorising the sale of the Sale Shares held
by those Vendors and the execution of the
transfers in respect of them;
(ii) such other documents as may be required to
give a good title to the Sale Shares and to
enable the Purchaser or its nominees to
become the registered holders thereof;
(iii) (in respect of the Company) its statutory
and minute books written up to date, and its
Common Seal, Certificate of Incorporation,
any Certificate or Certificates of
Incorporation on Change of Name and other
documents and records including copies of
its Memorandum and Articles of Association;
(iv) the Taxation Deed duly executed by each of
the parties thereto;
(v) evidence in a form satisfactory to the
Purchaser that all Guarantees given by any
Group Company in respect of liabilities of
any of the Vendors have been released; and
(vi) a letter in a form reasonably acceptable to
the Purchaser from Xxxxx Xxxxxxx & Co.
confirming that neither the Purchaser nor
its parent nor any member of the Purchaser's
group is a competitor of International Space
Brokers Inc. and accordingly that the
acquisition by the Purchaser of the Company
pursuant to this Agreement will not trigger
the option provision in the Stockholder
Agreement dated 28 January 1994 in respect
of International Space Brokers Inc. and made
between the Company (1) Xxxxx Xxxxxxx & Co.
(2) and Le Blanc xx Xxxxxxx (3).
(b) The Vendors shall:
(i) cause the transfers mentioned in clause
5.1(a)(i) to be resolved to be registered
(subject only to their being duly stamped)
notwithstanding any provision to the
contrary in the Articles of Association of
the Company;
(ii) cause the persons named in part A of
schedule 7 to be validly appointed as
additional Directors of the Company; and
(iii) procure that X. Xxxxxx, X. Xxxxxxx and X.
Xxxxxx shall retire as trustees, and that X.
Xxxxx, X. Xxxxx and X. Xxxxxx shall be
appointed as additional trustees, of the
Xxxxxxx Xxxxxx Pension Scheme; and
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(iv) repay to each Group Company, or procure the
repayment thereto of, all (if any)
indebtedness outstanding at Completion from
the Vendors or any of them (other than the
Continuing Loans) to that Group Company
(other than in respect of any trading in the
ordinary course of business by that Group
Company with any of the Vendors, which shall
be repaid in accordance with existing
arrangements).
(c) The Purchaser shall:
(i) pay the Completion Amount by electronic
funds transfer to the Nominated Account of
the Vendors' Solicitors (who are hereby
authorised to receive it in such account)
and the Purchaser shall have no obligation
as to the distribution or allocation of the
amount so paid between the Vendors;
(ii) issue the Loan Notes to, and execute
certificates in favour of, each of the
Designated Vendors; and
(iii) pay the Escrow Amount by electronic funds
transfer to the Escrow Account;
and the payment of such monies into such accounts shall
constitute a good discharge to the Purchaser.
(d) The parties shall join in procuring that:
(i) all existing bank mandates in force for the
Company shall be altered (in such manner as
the Purchaser shall at Completion require)
to reflect the resignations and appointments
referred to above;
(ii) all the Group Companies shall repay all (if
any) loans made to them by the Vendors (or
any of them) and outstanding at Completion;
(iii) the Key Employees shall enter into the Key
Employment Agreements; and
(iv) each of the Contribution Agreements will be
entered into by each of the Warrantors, his
Associates and the Purchaser.
5.2 If the Vendors shall fail or be unable to comply with any of their
obligations under the preceding provisions of this clause 5 on the
Completion Date the Purchaser may:
(a) defer Completion to a date not more than 28 days after
that date (in which case the provisions of this clause
5.2(a) shall apply to Completion as so deferred); or
(b) proceed to Completion so far as practicable but without
prejudice to the Purchaser's rights (whether under this
Agreement generally or under this
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clause) to the extent that the Vendors shall not have
complied with their obligations thereunder; or
(c) (save where the Purchaser, considering in good faith the
materiality or otherwise of the breach, is of the
opinion that the breach is immaterial) treat such
failure or inability to comply as a repudiatory breach
of this Agreement, acceptance of which shall discharge
the Purchaser from its undischarged obligations under
this Agreement (without prejudice to any other remedy
which the Purchaser may have, whether in damages or
otherwise).
6 POST-COMPLETION MATTERS AND INDEMNITY
6.1 Each of the Vendors hereby declares that for so long as he remains
the registered holder of any of the Sale Shares after Completion he
will:
(a) hold the Sale Shares and (other than the Dividend) the
dividends and other distributions of profits or surplus
or other assets declared, paid or made in respect of
them after Completion and all rights arising out of or
in connection with them in trust for the Purchaser and
its successors in title; and
(b) deal with and dispose of the Sale Shares and (other than
the Dividend) all such dividends, distributions and
rights as are described in clause 6.1(a) as the
Purchaser or any such successor may direct; and
(c) if so requested by the Purchaser or any such successor:
(i) vote at all meetings which he shall be
entitled to attend as the registered holder
of the Sale Shares in such manner as the
Purchaser or any such successor may direct;
and
(ii) execute all instruments of proxy or other
documents which the Purchaser may reasonably
require and which may be necessary or
desirable or convenient to enable the
Purchaser or any such successor to attend
and vote at any such meeting.
6.2 The Vendors shall:
(a) use all reasonable endeavours to secure with effect from
Completion the release of the Group Companies without
cost to any of the Group Companies from Guarantees to
the extent agreed with the Purchaser; and
(b) indemnify and keep indemnified the Purchaser (which
takes the benefit of this indemnity for itself and as
trustee for each Group Company) against all actions,
proceedings, losses, costs, claims, damages, liabilities
and expenses which it or any Group Company may suffer or
incur in respect of any claim made under any such
Guarantees after Completion.
6.3 The Vendors shall execute or, so far as each is able, procure that
any necessary third party shall execute all such documents and/or do
or, so far as each is able, procure the doing of such acts and
things as the Purchaser shall after Completion
12
reasonably require in order to give effect to this Agreement and any
documents entered into pursuant to it and to give to the Purchaser
the full benefit of all the provisions of this Agreement.
6.4 The trustees of the ESOT shall, upon request of the Company and as
soon as possible after the receipt of the funds payable under clause
6.7 below, pay over to the Company the surplus funds in the ESOT
(after deducting monies to meet any Taxation liabilities) for the
Company to distribute as bonuses to employees and directors selected
by the ESOT trustees.
6.5 The Company will be liable for employer's National Insurance
contributions payable on the bonuses referred to in clause 6.4 and
will calculate the necessary deductions of employee's National
Insurance contributions and income tax to be collected via PAYE.
6.6 The Purchaser undertakes with the Vendors and each of them that for
a period of six months after Completion it will not effect or
procure the appointment of any new trustee or the retirement of any
existing trustee of the ESOT.
6.7 Within 3 working days of the Completion Date the Purchaser shall
procure that the Company makes a payment of(pound)610,000 into the
ESOT.
6.8 If any shares in the capital of Uni-Alliance Insurance Holdings
Limited ("Uni-Alliance"), an associated company of the Company, or
any subsidiary of Uni-Alliance shall be offered to the public on or
before 31 March 2002, the Purchaser will pay to the Vendors'
Solicitors (for distribution to the Vendors) 50 per cent. of the
value of the Company's shares in Uni-Alliance to the extent that the
value for such shareholding exceeds (pound)3 million, whether such
increase accrues for the benefit of the Company or any other company
in the Purchaser's Group to which the Company's present shareholding
in Uni-Alliance may have been transferred. Any payment due under
this clause 6.8 shall become payable within 14 days of the Valuation
Date (as defined in clause 6.10 below) whether before or after 31
March 2002.
6.9 If there shall be any dispute between the parties as to the amount
of any payment to the Vendors under clause 6.8 the matter or matters
in dispute shall be referred to the auditors of the Company for the
time being (or the auditors for the time being of such other member
of the Purchaser's Group to which the Company's shareholding in
Uni-Alliance may have been transferred). The said auditors shall act
as experts and not as arbitrators, their decision shall be final and
binding upon the parties hereto and their costs shall be borne as
they (the auditors) shall think fit.
6.10 For the purpose of clause 6.8 the value of the shares in
Uni-Alliance shall be determined as at the date ("the Valuation
Date") which is the later of:
(a) the date on which the shares are freely capable of being
converted to cash by the Company (or any other company
in the Purchaser's Group to
13
which the Company's present shareholding in Uni-Alliance
may have been transferred); and
(b) if the shares have not been converted to cash within 18
months of the date in (a) above, then the date which is
18 months after the expiry of such date.
7 REPRESENTATIONS AND WARRANTIES
7.1 In consideration of the Purchaser entering into this Agreement:
(a) the Warrantors hereby warrant and represent to the
Purchaser (for itself and as trustee for its successors
in title):
(i) (subject to clause 7.2) in the terms set out
in schedule 5; and
(ii) that any statement in schedule 5 which is
qualified as being made "so far as the
Warrantors are aware" or "to the best of the
knowledge, information and belief of the
Warrantors" or any similar expression has
been so qualified after due diligent and
careful enquiries by the Warrantors
(including enquiry where appropriate of
relevant personnel which might include any
of the following: executive directors,
brokers, company secretary, general
managers, financial controller, taxation
manager and personnel manager of each Group
Company and the accountants, solicitors, tax
advisers and insurance brokers who act, or
at the relevant time acted, for each Group
Company) and that each of the Warrantors has
used all reasonable endeavours to ensure
that all information given, referred to or
reflected in that statement is accurate in
all material respects.
7.2 (a) The Warranties shall be qualified to the extent, but
only to the extent, of those matters fully and fairly
disclosed in the Disclosure Letter and for this purpose
"fully and fairly disclosed" means disclosed in such
manner and in such detail as to enable a reasonable
purchaser to make an informed and accurate assessment of
the matter concerned.
(b) All references in schedule 5 to "the Company" shall
unless the context otherwise requires be construed as
references to each and every Group Company.
(c) Each of the paragraphs in schedule 5:
(i) shall be construed as a separate and
independent representation and/or warranty;
and
14
(ii) save as expressly otherwise provided in this
Agreement, shall not be limited by reference
to any other paragraph in schedule 5 or by
any other provision of this Agreement or the
Taxation Deed,
and the Purchaser shall have a separate claim and right
of action in respect of every Relevant Breach of each
such representation or warranty.
(d) All references in schedule 5 to "CWG" shall be construed
as a reference to the Company only.
7.3 The Warranties shall not in any respect be extinguished or affected
by Completion.
7.4 Each of the Vendors agrees with the Purchaser (both as Purchaser and
as trustee for each Group Company and each Group Company's
directors, employees, agents and advisers):
(a) that the giving by any Group Company and/or any of its
directors, employees, agents or advisers to any of the
Vendors or their agents or advisers of any information
or opinion in connection with the Warranties or the
Taxation Deed or the Disclosure Letter or otherwise in
relation to the business or affairs of any Group Company
or in connection with the negotiation and preparation of
this Agreement, the Taxation Deed or the Disclosure
Letter shall not be deemed a representation, warranty or
guarantee to the Vendors of the accuracy of such
information or opinion;
(b) to waive any right or claim which he may have against
any Group Company and/or any of its directors, employees
or agents for any error, omission or misrepresentation
in any such information or opinion; and
(c) that any such right or claim shall not constitute a
defence to any claim by the Purchaser under or in
relation to this Agreement (including the Warranties) or
the Taxation Deed.
7.5 Schedule 8 shall have effect for the purpose of limiting the
liability of the Warrantors.
7.6 The following Warranties are not given in respect of any subsidiary
of ISB:
(a) the Property Warranties contained in paragraph 20 of
schedule 5;
(b) the Pensions Warranties contained in paragraph 22 of
schedule 5; and
(c) any warranty (or that part thereof) which expressly
requires information to be contained in the Disclosure
Letter.
8 CLAIMS FOR BREACH OF WARRANTY OR UNDERTAKING
8.1 The rights and remedies conferred on the Purchaser under this
Agreement, are cumulative and are additional to, and not exclusive
of, any rights or remedies provided by law or otherwise available at
any time to the Purchaser.
15
8.2 The Warrantors severally agree and undertake with the Purchaser to
pay in cash in their respective Warrantor Proportions to the
Purchaser (or as the Purchaser may direct) on demand if there is a
Relevant Breach or a breach of the Taxation Deed, a sum equal to the
aggregate of:
(a) the amount necessary to put the Company into the
position which would have existed had there been no
breach of warranty, in particular, where the breach or
the effect of the breach is that the value of an asset
(including one warranted to exist but not in fact
existing) of the Company is or becomes less than its
value would have been had there been no such breach or
the Company has or incurs any liability or increase in
liability which would not have been incurred had there
been no such breach, then the Warrantors will pay the
full amount of such deficiency or diminution in value of
the asset or (as the case may be) of such liability or
increase in liability; and
(b) all losses incurred or suffered by the Purchaser or the
Company, directly or indirectly, as a result of or in
connection with the breach of warranty.
8.3 The Purchaser warrants to the Warrantors that as at the date hereof
it has no knowledge of any circumstance entitling it to make a claim
for breach of any of the Warranties.
9 PROFESSIONAL NEGLIGENCE AND OTHER INDEMNITIES
9.1 The Warrantors hereby undertake to the Purchaser (acting for itself
and as trustee for each member of the Purchaser's Group, the Company
and the Subsidiaries) to pay to the Purchaser on demand made at any
time and from time to time an amount equal to any liability
(excluding any liability specifically provided for in the Management
Accounts as at 30 June 1999 other than the Heritage Provision and
TDR Provision and satisfied on or before Completion) whether direct
or indirect (including any loss, fines, levies, charges, interest,
penalties, claims, costs, damages and expenses) of whatsoever nature
whensoever arising at any time or times before or after the date
hereof whether actual or contingent which may arise out of or be
occasioned or suffered in consequence of or in connection with any
of the following:
(a) any uninsured liability in respect of any negligent
acts, errors, negligent omissions or negligent advices
occurring, rendered, or given by the Company or any of
the Subsidiaries or any of their respective officers,
empoyees or agents prior to Completion relating to (i)
the claims detailed on the list of matters reported to
the Company's errors and omissions insurers in the
agreed form and (ii) any other matters notified to the
Company or the Subsidiaries or in respect of which the
Company or the Subsidiaries are otherwise aware and
which (in either case) have not been reported to the
Company's errors and omissions insurers;
(b) any fine, levy, damages (whether compensatory or
punitive), penalty or similar charge whatsoever,
including an order to return commissions and/or
brokerage and/or other monies already received (or in
respect of any jurisdiction other than England, whatever
term approximates in that
16
jurisdiction to the foregoing terms) imposed by, or
ordered to be paid by, any regulatory body or court
(wheresoever situate in the world) to which the Company
or any Subsidiary is or may be or is held or deemed to
be subject, where the failure, default or non-compliance
on the part of the Group Company occurred or was
subsisting prior to Completion, including without
limitation:
(i) Lloyd's regulatory division's investigation
into the operations of Xxxxxxx Xxxxxx &
Company Limited (both generally and in
respect of the management of binding
authorities relating to bloodstock business
written in Cyprus) to the extent that any
fine exceeds (pound)10,000 and any costs
exceed (pound)5,500;
(ii) any loss fine damages or other penalty
howsoever termed and arising from the claim
against International Accident Facilities
Inc. and/or International Accident
Facilities Texas Inc. pursuant to the
dispute concerning the issuance of insurance
policies to National Convenience Stores;
(iii) any loss fine damages penalty or other
liability howsoever termed arising from the
illegal selling or placement of insurance or
reinsurance cover by any Group Company;
(c) any liability (including but not limited to liability
arising out of warranties and indemnities) arising
pursuant to the ownership of and sale subsequent by
Xxxxxxx Terrace Limited of the business of Compass
Certificate Schemes Limited; and the ownership of and
subsequent sale by Xxxxxxx Xxxxxx (USA) Inc. (or a
subsidiary thereof) of Innovative Services International
LLC and Continental Aviation Underwriting Inc.;
(d) any debits properly made in accordance with generally
accepted accounting principles to the Company's xxxxx
and loss account after the Completion Date where the
original transaction giving rise thereto was recorded in
the insurance ledgers of the Company or any of the
Subsidiaries as at 30 September 1999 ("Relevant Debits")
after the deduction of any credits made or capable of
being made in accordance with generally accepted
accounting principles to the Company's profit and loss
account after the Completion Date where the original
transaction giving rise thereto was recorded in the
insurance ledgers of the Company or any of the
Subsidiaries as at 30 September 1999;
For the avoidance of doubt:
(i) credits referred to in this clause 9.1(d)
include those recorded as part of the bad
and doubtful debt provision relating to
transactions recorded in the insurance
ledgers of the Company or any of the
Subsidiaries as at 30th September 1999 not
required for off-set against Relevant
Debits; and
(ii) any claims under this clause 9.1(d) in
relation to ISB or its subsidiaries shall be
limited to 46.35 per cent of the value of
such claim;
17
(e) any loss arising from the directors of the Company
registering (i) the transfer of 21,000 shares in the
Company outside the period in respect of which a waiver
of pre-emption rights by shareholders was in force and
(ii) the transfer of 1,000 shares in the Company in
contravention of the pre-emption provisions in the
Company's Articles of Association;
(f) any liability arising from the Company or any Subsidiary
having acted prior to Completion ultra xxxxx of any
binding authority to which such company is cover-holder
to the extent such liability is not covered by
insurance;
(g) any debit to the profit and loss account of the Company
after the Completion Date arising as a result of the
underwriters succeeding in respect of their claims to
avoid ab initio the reinsurance contracts placed in
respect of Heritage and as a consequence of which
Xxxxxxx Xxxxxx & Company Limited or any other Group
Company is required to repay brokerage in excess of the
Heritage Provision;
(h) any debit to the profit and loss account of ISB which
results directly or indirectly from commissions due in
connection with the space insurance programme of TCI
Satellite Entertainment Inc to ISB in the sum of
US$54,085 not being paid to ISB (as referred to in the
disclosure against warranty 6.7 in the Disclosure
Letter);
(i) any liability (contingent or otherwise) of CW Midwest
Inc pursuant to the reimbursement agreement between CW
Midwest Inc and Xxxxxx Xxx (as referred to in the
disclosure against warranty 11.1(e) in the Disclosure
Letter);
(j) any liability (contingent or otherwise) including
without limitation, costs, claims, demands and damages
of any member of the Group arising whether directly or
indirectly from:
(i) the actual or potential disputes or
litigation involving Columbus Community
Hospital, Xxxxx Hospital and SkillMaster as
referred to in the disclosure against
warranty 6.7 in the Disclosure Letter;
(ii) the actual or potential disputes or
litigation involving Guarantee Life v Blue
Star Underwriters as referred to in the
disclosure against warranty 25.1 in the
Disclosure Letter;
(iii) any claim against any member of the Group
arising from those existing and potential
employee claims or circumstances listed in
the disclosure against warranty 18.6 in the
Disclosure Letter which relate to Xxxxxxx
Xxxxxxxx, Xxxxx Xxxxxxxxxxxx, Xxxxxxxxxx
Xxxxxx and Xxxxxx Xxxxx;
(iv) the actual or potential disputes or
litigation against any member of the Group
arising from the dispute with Atrimar
Constructions Pty Limited and Internet
Constructions Pty Limited as referred to in
the disclosure against warranty 25.1 in the
Disclosure Letter;
18
(k) any amount which the Group is unable to recover from
Xxxxx Xxxxxxxx as detailed in the disclosure against
warranty 18.10 in the Disclosure Letter;
(l) any amount which any Group Company is unable to recover
from Xxxxxxx Xxxxxxx pursuant to the purchase by the
Group of Mansions of Australia Pty Limited as detailed
in the disclosure against warranty 19.4 in the
Disclosure Letter;
(m) any liability of any Group Company to satisfy any
additional premium or call demanded by the Xxxxxxx
Insurance Association Limited in respect of any period
up to the Completion Date;
(n) any liability of any Group Company arising out of the
existing litigation between Le Blanc xx Xxxxxxx
Reassurance SA ("Le Blanc") and ISB except for:
(i) costs incurred by ISB in relation to such
litigation, and
(ii) any obligation by ISB to pay Le Blanc any
monies in respect of the commissions
allegedly owed by ISB to Le Blanc from the
period after 15 May 1998 to the extent that
such commissions have not been booked and
credited to the profit and loss account of
ISB;
(o) any liability arising whether directly or indirectly
from the discrepanices contained in AUG's computerised
register of allotment compared to its shareholders'
register;
(p) any costs or liability arising to the extent that any
charges over the Company or any of the Subsidiaries any
of their assets have not been satisfied or discharged in
full prior top Completion (other than the Continuing
Charges).
9.2 The following provisions of schedule 8 shall apply in relation to
this clause 9 in the same manner in which the said provisions apply
to claims under the Warranties and (if applicable) the Taxation
Deed: 2.1(g), 3.1(a), 3.1(b), 4, 7-11 (inclusive) and 14. Paragraph
13 of schedule 8 shall apply only in relation to clause 9.1(d).
9.3 No claim shall be brought by the Purchaser pursuant to clause 9
unless notice in writing of such claim (specifying in reasonable
detail the event, matter or default which gives rise to the claim)
has been given to the Warrantors before the fourth anniversary of
the Completion Date or (in the case of claims pursuant to clause
9.1(b) which relate to a non-UK jurisdiction only, before the second
anniversary of the Completion Date).
9.4 No information known to the Purchaser (whether actual or
constructive) (including without limitation any matter disclosed in
the Disclosure Letter) shall prejudice any claim made by the
Purchaser under this clause 9.
19
10 RESTRICTIVE COVENANTS
10.1 Each of the Key Vendors undertakes with the Purchaser that without
the prior consent in writing of the Purchaser he will not directly,
or indirectly whether by himself, his employees or agents and
whether on his own behalf or on behalf of any person, firm or
company or otherwise howsoever, for a period of 3 years from the
date of Completion.
(a) (subject to clause 10.5) carry on, be employed or
otherwise engaged, concerned or interested in any
capacity (whether for reward or otherwise) in, provide
any technical, commercial or professional advice to, or
in any way assist any business which is or is about to
be engaged in the supply of the Restricted Services in
the Prohibited Area in competition with the Company or
any other Group Company;
(b) in relation to the Restricted Services or any of them,
solicit or canvass, accept orders from or otherwise deal
with any person, firm, company or other organisation
who:
(i) was a client of the Company or any other
Group Company at any time during the 3 years
prior to Completion; or
(ii) at the date of Completion was in the process
of negotiating or contemplating doing
business with the Company or any other Group
Company,
and with whom that Key Vendor had personal dealings at
any time in the 3 years prior to Completion in the
course of his employment;
(c) solicit or entice away or endeavour to solicit or entice
away from the Company or any other Group Company any
director or broker or manager or other person employed
or otherwise engaged by that Group Company on the date
of Completion, whether or not that person would commit
any breach of his contract of employment by reason of
his leaving the service of that Group Company;
10.2 Clause 10.1 shall be deemed to be repeated herein with the
substitution of the period "12 months from the Termination Date in
relation to that Key Vendor" for the period "3 years from the date
of Completion".
10.3 Each of the Vendors (which expression shall not in this clause 10.3
include any of the Vendors who are trustees) undertakes with the
Purchaser that except under the terms of any service agreement
between himself and a Group Company or the Purchaser he will not at
any time after Completion directly or indirectly, whether by
himself, his employees or agents or otherwise howsoever:
(a) without the Purchaser's prior written consent, engage in
any trade or business or be associated with any person
firm or company engaged in any trade or business using
any of the names Xxxxxxx Xxxxxx, International Space
Brokers, ISB, International Accident Facilities, IAF,
Cox or Mansions or any name incorporating the words
Xxxxxxx or
20
Xxxxxx or International Space Brokers or ISB or
International Accident Facilities or IAF or Cox or
Mansions or any similar name or names or any colourable
imitation thereof;
(b) (subject to clause 10.5) in the course of carrying on
any trade or business, claim, represent or otherwise
indicate any present association with the Company or any
other Group Company or, for the purpose of obtaining or
retaining any business or custom, claim, represent or
otherwise indicate any past association with the Company
or any other Group Company;
(c) (subject to clause 10.5) without the consent of the
Company or the Purchaser use, whether on his own behalf
or any third party, or divulge to any third party, any
of the Confidential Information.
10.4 Each of the Vendors undertakes with the Purchaser that, if the
Company or any other Group Company obtains any of the Confidential
Information from any third party under an agreement including any
restriction on disclosure known to him, he will not at any time
without the consent of the Company or the Purchaser infringe that
restriction.
10.5 (a) The restriction in clause 10.1(a) shall not operate to
prohibit any Key Vendor from holding up to 3 per cent of
the shares of any competing company the shares of which
are listed or dealt in on a recognised stock exchange;
(b) The reference in clause 10.5(a) to clause 10.1(a) shall
include clause 10.1(a) as repeated by clause 10.2.
(c) The restrictions in clauses 10.3(c) and 10.4 shall not
apply:
(i) in respect of any of the Confidential
Information which is in or becomes part of
the public domain, other than through a
breach of the obligations of confidentiality
set out in this Agreement; or
(ii) to any of the Vendors to the extent that he
is required to disclose Confidential
Information by any applicable law,
governmental order, decree, regulation,
licence or rule or pursuant to the
regulations of any securities exchange or
regulatory or governmental body to which he
is subject or otherwise to his professional
advisers.
10.6 Each of the Vendors agrees with the Company and the Purchaser that
the restrictive covenants in this clause 10, so far as each such
covenant is relevant to him or her, are reasonable and necessary for
the protection of the value of the Sale Shares and the Company and
that having regard to that fact those covenants do not work harshly
on him.
21
10.7 (a) The Vendors acknowledge that they have had the
opportunity to take independent advice on the
restrictions in clause 10.1 to 10.4 inclusive.
(b) While those restrictions are considered by the parties
to be reasonable in all the circumstances, it is agreed
that if any of those restrictions, by themselves or
taken together, shall be adjudged to go beyond what is
reasonable in all the circumstances for the protection
of the legitimate interests of the Purchaser but would
be adjudged reasonable if part or parts of the wording
thereof were deleted or amended or qualified or the
periods thereof were reduced or the range of products or
services or area dealt with were thereby reduced in
scope, then the relevant restriction or restrictions
shall apply with such modification or modifications as
may be necessary to make it or them valid and effective.
11 CONTINUING EFFECTS OF THIS AGREEMENT
11.1 No provision of this Agreement or of any arrangement of which this
Agreement forms part which is of such nature as to render the
Agreement or arrangement subject to registration under the
Restrictive Trade Practices Act 1976 shall take effect until the day
after the date on which particulars of the Agreement or arrangement
are furnished to the Director General of Fair Trading in accordance
with that Act.
11.2 Subject to clause 11.1, all provisions of this Agreement shall so
far as they are capable of being performed or observed continue in
full force and effect notwithstanding Completion except in respect
of those matters then already performed and Completion shall not
constitute a waiver of any of the Purchaser's rights in relation to
this Agreement or the Taxation Deed.
12 ANNOUNCEMENTS
12.1 Each of the Vendors undertakes with the Purchaser to provide, and to
use his best endeavours to procure that each of the Directors of the
Company and the Subsidiaries shall provide, all such information
known to him or which on reasonable enquiry ought to be known to him
and relating to the Group or otherwise as the Purchaser may
reasonably require for the purpose of complying with any
requirements of law or of the New York Stock Exchange.
12.2 Save as expressly required by law or by the New York Stock Exchange
or by any relevant regulatory, governmental or quasi-governmental
authority, all announcements or circulars by, of or on behalf of any
of the parties hereto made before or after Completion and relating
to the sale and purchase of the Sale Shares shall be in terms to be
agreed between the parties in advance of issue and for the purpose
of this clause 12.2 "parties" shall be deemed to mean the Purchaser
on the one hand and the Key Vendors on the other.
22
13 RELEASES, WAIVERS ETC., BY THE PURCHASER
13.1 The Purchaser may, in its discretion, in whole or in part release,
compound or compromise, or waive its rights or grant time or
indulgence in respect of, any liability to it under this Agreement
or the Taxation Deed and may do so as regards any one or more of the
Vendors or Warrantors under that liability without in any way
prejudicing or affecting the liability of or its rights against any
other of the Vendors or Warrantors in respect of the same or a like
liability, whether joint and several or otherwise.
13.2 Subject to clause 13.3, neither the single or partial exercise or
temporary or partial waiver by the Purchaser of any right, nor the
failure by the Purchaser to exercise in whole or in part any right
or to insist on the strict performance of any provision of this
Agreement, nor the discontinuance, abandonment or adverse
determination of any proceedings taken by the Purchaser to enforce
any right or any such provision shall (except for the period or to
the extent covered by any such temporary or partial waiver) operate
as a waiver of, or preclude any exercise or enforcement or (as the
case may be) further or other exercise or enforcement by the
Purchaser of, that or any other right or provision.
13.3 Clause 13.2 is without prejudice to the time limits in paragraph 5
of schedule 8 (for which purposes time shall be of the essence) and
all references in clause 13.2 to:
(a) any right shall include any power, right or remedy
conferred by this Agreement on, or provided by law or
otherwise available to, the Purchaser; and
(b) any failure to do something shall include any delay in
doing it.
13.4 The giving by the Purchaser of any consent to any act which by the
terms of this Agreement requires such consent shall not prejudice
the right of the Purchaser to withhold or give consent to the doing
of any similar act.
14 NOTICES
14.1 Except as otherwise provided in this Agreement, every notice under
this Agreement shall be in writing in the English language and shall
be deemed to be duly given if it (or the envelope containing it)
identifies the party to whom it is intended to be given as the
addressee and:
(a) it is delivered by being handed personally to the
addressee (or, where the addressee is a corporation, any
one of its Directors or its Secretary); or
(b) it is delivered by being left in a letter box or other
appropriate place for the receipt of letters at the
addressee's authorised address; or
(c) the envelope containing the notice is properly addressed
to the addressee at his authorised address and duly
posted by first class mail or registered post or the
recorded delivery service (or by airmail registered post
if overseas) or the notice is duly transmitted to that
address by facsimile transmission,
23
and, in proving the giving or service of such notice, it shall be
conclusive evidence to prove that the notice was duly given within
the meaning of this clause 14.1.
14.2 A notice sent by post (or the envelope containing it) shall not be
deemed to be duly posted for the purposes of clause 14.1(c) unless
it is put into the post properly stamped or with all postal or other
charges in respect of it otherwise prepaid.
14.3 For the purposes of this clause 14 the authorised address of each of
the Vendors shall be the respective addresses of each of the Key
Vendors or (in the case of notices transmitted by facsimile
transmission) the respective facsimile numbers (if any) of the Key
Vendors and the service of notice on the Key Vendors shall be deemed
to be service on each and every Vendor and the authorised address of
(respectively) the Purchaser and the Company and each of the
Subsidiaries shall be the address of its registered office for the
time being or (in the case of notices transmitted by facsimile
transmission) its respective facsimile numbers at that address.
14.4 Any notice duly given within the meaning of clause 14.1 shall be
deemed to have been both given and received:
(a) if it is delivered in accordance with clause 14.1(a) or
14.1(b), on such delivery;
(b) if it is duly posted or transmitted in accordance with
clause 14.1(c) by any of the methods there specified, on
the second (or, when sent airmail, fifth) business day
after the day of posting or (in the case of a notice
transmitted by facsimile transmission) upon receipt by
the sender of the correct transmission report.
14.5 For the purposes of this clause 14 "notice" shall include any
request, demand, instructions, communication or other document.
15 ENTIRE AGREEMENT
15.1 This Agreement (together with all documents which are required by
its terms to be entered into by the parties or any of them and all
those terms of any other documents which this Agreement expressly
preserves and all other documents which are in the agreed form and
are entered into by the parties or any of them in connection with
this Agreement) sets out the entire agreement and understanding
between the parties in connection with the Company and the sale and
purchase and other matters described in it.
16 ALTERATIONS
16.1 No purported alteration of this Agreement shall be effective unless
it is in writing, refers to this Agreement and is duly executed by
each party hereto.
24
17 SEVERABILITY
17.1 Each provision of this Agreement is severable and distinct from the
others. The parties intend that every such provision shall be and
remain valid and enforceable to the fullest extent permitted by law.
If any such provision is or at any time becomes to any extent
invalid, illegal or unenforceable under any enactment or rule of
law, it shall to that extent be deemed not to form part of this
Agreement but (except to that extent in the case of that provision)
it and all other provisions of this Agreement shall continue in full
force and effect and their validity, legality and enforceability
shall not be thereby affected or impaired, provided that the
operation of this clause would not negate the commercial intent and
purpose of the parties under this Agreement.
17.2 If any provision of this Agreement is illegal or unenforceable as a
result of any time period being stated to endure for a period in
excess of that permitted by a regulatory authority, that provision
shall take effect with a time period that is acceptable to the
relevant regulatory authorities subject to it not negating the
commercial intent of the parties under this Agreement.
18 COUNTERPARTS
18.1 This Agreement may be entered into in the form of two or more
counterparts each executed by one or more of the parties but, taken
together, executed by all and, provided that all the parties so
enter into the Agreement, each of the executed counterparts, when
duly exchanged or delivered, shall be deemed to be an original, but,
taken together, they shall constitute one instrument.
19 PAYMENT OF COSTS
19.1 Each of the parties shall be responsible for his respective legal
and other costs incurred in relation to the negotiation, preparation
and completion of this Agreement, the Taxation Deed and all
ancillary documents.
20 SUCCESSORS AND ASSIGNS
20.1 This Agreement shall be binding on and shall enure for the benefit
of the successors in title and personal representatives of each
party.
20.2 Save as provided in clause 20.3, none of the parties hereto shall be
entitled to assign the benefit of any rights under this Agreement.
20.3 The benefit of this Agreement (including the Warranties) and the
Taxation Deed shall be freely assignable by the Purchaser within the
Purchaser's Group (provided that if the assignee subsequently leaves
the Purchaser's Group the Purchaser shall procure that the benefit
of the Warranties and the Taxation Deed is re-assigned either to
itself or to another company which is at that time a member of the
Purchaser's Group) and, in the event of any such assignment, all
references in this Agreement and the Taxation Deed to the Purchaser
shall be deemed to include its assigns.
25
21 APPLICABLE LAW AND SUBMISSION TO JURISDICTION
21.1 This Agreement shall be governed by and construed in accordance with
English law.
21.2 It is hereby agreed that if any party has any claim against another
party arising out of or in connection with this Agreement such claim
shall be referred to the High Court of Justice in England, to the
jurisdiction of which each of the parties hereto irrevocably
submits.
IN WITNESS whereof this Agreement has been entered into the day and year first
above written.
26
SCHEDULE 1
THE VENDORS
---------------------------- -------------------------- ------------------ --------------------- ----------------
(1) (2) (3) (4) (5)
---------------------------- -------------------------- ------------------ --------------------- ----------------
Name Address No. Ordinary Respective Principal
---- ------- ------------ ---------- ---------
Shares Held Proportions (%) Amount of
----------- --------------- ---------
Loan Notes
((pound))
---------------------------- -------------------------- ------------------ --------------------- ----------------
Island Trustees Ltd Hill House 230,515 2.30515 Nil
& X. Xxxxxxxxx & 0 Xxxxxx Xxx Xxxxxx
X. Xxxxxxxx Xxxxxx XX0X 0XX
(Trustees)
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxxxx Xxxxxx 28 Xxxxxxx 3,500 0.03500 Xxx
Xxxxx Xxxxxx
Xxxxxxxx Xxxxx
Xxxxxxxxxx
Xxxxx XX00 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxxxxx Xxxxx 00 Xxxxx Xxxxxx 377,206 3.77206 Xxx
Xxxxxx Xxxx Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxxxx
Xxxxxxxxx Xxxxxx
Baulf (Trustees)
---------------------------- -------------------------- ------------------ --------------------- ----------------
*Xxxxxxx 0 Xxxxx Xxxxxx 20,000 0.20000 24,147
Bernardes Xxxxxxxxx Xxxx
Xxxxxxx
Xxxx XX0 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxxx Xxxx Xxxxxx St Mary's Lodge 25,612 0.25612 Nil
Xxxxxx Xxxx
Xxxxxx
Xxxxxx XX00 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxxxxx Xxxxxxx Ferhana 5,000 0.05000 Nil
00 Xxxxxxxxx Xxxx
Xxxxxx Xxxx
Xxxxx XX0 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxxx X. Xxxxxxx 00 Xxxxxxx Xxxxx 3,500 0.03500 Xxx
Xxxxxxxx
Xxxxxx XX00 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
*Xxxxxxxx Xxxxxx Xxxxxxxx 20,000 0.20000 38,081
Xxxxxxx Xxxxx Xxxxx
Xxxxxxxx
Xxxxxx XX00 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
*Xxxxx Xxxx Xxxxxx 00 Xxxxx Xxxx Xxxx 7,500 0.07500 8,280
Xxxx Xxxxxxx
Xxxx XX0 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxx Xxxxxx A. 00 Xxxxx Xxxxxx 97,794 0.97794 Xxx
Xxxxxxxxx, Xxxxxxx Xxxxxx XX0X 0XX
Xxxxx Xxxxxx,
Xxxxxx Xxxx Xxxxxx
WDFT (Trustees)
---------------------------- -------------------------- ------------------ --------------------- ----------------
27
---------------------------- -------------------------- ------------------ --------------------- ----------------
(1) (2) (3) (4) (5)
---------------------------- -------------------------- ------------------ --------------------- ----------------
Name Address No. Ordinary Respective Principal
---- ------- ------------ ---------- ---------
Shares Held Proportions (%) Amount of
----------- --------------- ---------
Loan Notes
((pound))
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxxxx X. Eagle 00 Xxxxxxx Xxxxxx 3,500 0.03500 Nil
Xxx Xxxxxx
Xxxxxxxx
Xxxxx. XX0 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
*Xxxxxxx X. 00 Xxxx Xxxx 5,000 0.05000 000
Xxxxxx Xxxxxx
Xxxxx XX00 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxx Xxxxxx A. 00 Xxxxx Xxxxxx 85,000 0.85000 Xxx
Xxxxxxxxx, Xxxxxxx Xxxxxx XX0X 0XX
Xxxxx Xxxxxx,
Xxxxxx Xxxx Xxxxxx
GCW (Trustees)
---------------------------- -------------------------- ------------------ --------------------- ----------------
*Xxxxxx Xxxxxx 29 Tryfan Close 6,000 0.06000 2,901
Green Xxxxxxxxx
Xxxxxx
Xxxxx XX0 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxxx Xxxxxxx 00 Xxxxxxxx Xxxx 5,000 0.05000 Xxx
Xxxxxx Xxxxxx
Xxxxxx XX0 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
*Xxxx Xxxxxxxx 00 Xxxxx Xxxxx 5,000 0.05000 000
Xxxxxxxxxxxxxx Xxxxx
Xxxxx
Xxxx XX0 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
*Xxxxxx Xxxx 00 Xxxxxx Xxxx 5,000 0.05000 997
Xxxxxx
Xxxxxx XX0 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxxxxx Xxxxxxxxx Pandora House 537,868 5.37868 Nil
Xxxxxxxx Xxxxxx Xxxx
Xxxxxxxx-xxxx-Xxxxxx
Xxxxxx XX0 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxxx Xxxxxxx Glebe House 20,000 0.20000 Xxx
Xxxxxx Xxxxxxx
Xx. Xxxxxxxxx
Xxxx XX00 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxxxxx Xxx Xxxxx Xxxxxxxxx 251,471 2.51471 Nil
0 Xxxxxx Xxxxx
Xxxxxxx
Xxxxxx XX0 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxx Xxxxxxxx Xxxxxxxxx 628,676 6.28676 Nil
Xxxxx 0 Xxxxxx Xxxxx
Xxxxxxx
Xxxxxx XX0 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
28
---------------------------- -------------------------- ------------------ --------------------- ----------------
(1) (2) (3) (4) (5)
---------------------------- -------------------------- ------------------ --------------------- ----------------
Name Address No. Ordinary Respective Principal
---- ------- ------------ ---------- ---------
Shares Held Proportions (%) Amount of
----------- --------------- ---------
Loan Notes
((pound))
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxxxx Xxxx Xxxxx, 000 Xxxx Xxxxxx 600,000 6.00000 Nil
Xxxxxxxx Xxxx, Xxxxxxx
Xxxx Xxxx Xxxx XX0 0XX
(Trustees)
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxxxxxx Xxxx Finches 80,000 0.80000 Xxx
Xxxxxx Xxxx
Xxxxxxxx
Xxxx Xxxxxx
XX0 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxx Xxxx Finches 11,544 0.11544 Xxx
Xxxxxx Xxxx
Xxxxxxxx
Xxxx Xxxxxx
XX0 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxxxx Xxxxxx Xxxxx Elmwood 25,613 0.25613 Nil
00 Xxxxx Xxxx
Xxxxxxxx Xxxx
Xxxx
Xxxxxxxxxxxxxxx XXX 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
*Xxxxx Xxxxxxx 0 Xxxxxxx Xxxx 5,000 0.05000 000
Xxxxxxxxxx
Xxxxx XX0 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
*Mrs Xxxxxxxx Xxxxx Oakley 25,000 0.25000 35,236
as Executrix of 34 Xxxxx Xxxx Avenue
Xxxxxxxxxxx Xxxxxxx Croydon
Xxxxx (deceased) Surrey CR0 5SB
(Trustee)
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxxx Xxxxxxx 00 Xxxxxxxx Xxxxxx 7,500 0.07500 Xxx
Xxxx Xxxxxxxxx
Xxxxx XX00 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxx Xxxxxx 00 Xxxxx Xxxxxx 85,000 0.85000 Xxx
Xxxxxxxxx, Xxxxxxx Xxxxxx XX0X 0XX
Xxxxx Xxxxxx,
Xxxxxx Xxxx Xxxxxx
LPW (Trustees)
---------------------------- -------------------------- ------------------ --------------------- ----------------
*Xxxxxxx Xxxx 00 Xxxxx Xxxx 7,500 0.07500 5,757
Xxxxxxx Xxxxx Xxxxxxx Xxxxxxx
Xxxxx XX0 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxxxxxxxxx Xxxxx 00 Xxxxxx Xxxxx 5,000 0.05000 Xxx
Xxxxxxxxx
Xxxx XX0 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
29
---------------------------- -------------------------- ------------------ --------------------- ----------------
(1) (2) (3) (4) (5)
---------------------------- -------------------------- ------------------ --------------------- ----------------
Name Address No. Ordinary Respective Principal
---- ------- ------------ ---------- ---------
Shares Held Proportions (%) Amount of
----------- --------------- ---------
Loan Notes
((pound))
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxxx Xxxx Xxxxx "Xxxxxx" 25,613 0.25613 Nil
3 Xxxxxxx Xxx
Xxxxxxxx Xx Xxxxx
Xxxxxxxxxxxxxxx XX0 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
*Xxxxxx Xxx Xxxx 00 Xxxxxxx Xxxx 15,000 0.15000 20,038
Xxxxxx Xxxxxxxxxxxx
Xxxxx. XX0 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxx Xxxxxx X 00 Xxxxx Xxxxxx 40,000 0.40000 Xxx
Xxxxxxxxx, Xxxxxxx Xxxxxx XX0X 0XX
Xxxxx Xxxxxx,
Xxxxxx Xxxx Xxxxxx
MRW (Trustees)
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxx Xxxxxx X 00 Xxxxx Xxxxxx 85,000 0.85000 Xxx
Xxxxxxxxx, Xxxxxxx Xxxxxx XX0X 0XX
Xxxxx Xxxxxx,
Xxxxxx Xxxx Xxxxxx
NKW (Trustees)
---------------------------- -------------------------- ------------------ --------------------- ----------------
*Xxxxx Xxxxxx 000 Xxxxxxxxx Xxx 20,000 0.20000 26,055
Xxxxxxx Xxxxxxxxx
Xxxxxxxxxxxxx
XX0 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxxxx Xxxx Xxxxxx 00 Xxxxxxxx Xxxxxxxx 5,000 0.05000 Xxx
Xxxxxxx
Xxxxxxxxx Xxxxx
Xxxx XX0 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
*Xxxxxx Xxxxxxx Hunters Lodge 7,500 0.07500 5,757
Xxxxxx Xxxx The Links
Xxxxxxx Xxxx
Xxxxxx
Xxxxxx XX00 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
Mrs Xxxxx Xxx 00 Xxxxxxxxxxx Xxxxxxx 3,500 0.03500 Xxx
Xxxxxxx Xxxxxx
Xxxxx XX0 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
*Xxxxx Xxxxx Sales 0 Xxxxx Xxxxx Xxxxx 7,500 0.07500 8,780
Xxxxxxxxxxx
Xxxxx XX0 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
30
---------------------------- -------------------------- ------------------ --------------------- ----------------
(1) (2) (3) (4) (5)
---------------------------- -------------------------- ------------------ --------------------- ----------------
Name Address No. Ordinary Respective Principal
---- ------- ------------ ---------- ---------
Shares Held Proportions (%) Amount of
----------- --------------- ---------
Loan Notes
((pound))
---------------------------- -------------------------- ------------------ --------------------- ----------------
*Xxxxx Xxxxx The Old Thatch 7,500 0.07500 9,835
Xxxxxxxx Xxxxxxxxx Xxxx
Xxxxx Xxx
Xxx
Xxxx Xxxxxx
XX00 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
*Clive Xxxxxxx Xxxxx 00 Xxxx Xxxx 7,500 0.07500 14,280
Xxxxx Xxxx Xxxxxxx
Xxxxxx XX0 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
*Xxxxxx Xxxx 9 The Linkway 10,000 0.10000 19,040
Xxxxxxx Xxxxxx
Xxxxxx XX0 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxxxxx X X Start 20 Acres End 3,500 0.03500 Xxx
Xxxxxxxxxx
Xxxxx XX0 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
*Xxxxxx Xxxxxxx 00 Xxxxxx Xxxx 20,000 0.20000 25,081
Xxxxx Xxxxxx
Xxxxxx X00 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
X.X. Xxxxxx and America House 219,000 2.19000 Nil
X. Xxxxx as America Square
Trustees of Crawley London
Xxxxxx Group XX0X 0XX
Employee Share
Ownership Scheme
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxxxxx Xxxxx Magnolia House 4,635,147 46.35147 Nil
Xxxxxx 00 Xxxxxxxxxx Xxxx
Xxxxxxxxx
Xxxx XX00 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxxxxxxx Xxxx Brooklands Cottage 250,000 2.50000 Xxx
Xxxxxx Xxxxx Xxxxx
Xxxx
XX0 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxx Xxxxxxx 0000 Xxxx Xxxxxxxxx Xxxxx 279,412 2.79412 Nil
Xxxxxx Xxxxxxxxx
Xxxxxxxx 00000
XXX
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxxxx Xxxxxx 00 Xxxxxxxxx Xxxxxxx 139,706 1.39706 Nil
Xxxxxx X00 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxxx Xxxxxxx Tanners 250,000 2.50000 Nil
Xxxxxx Xxxxxxx Xxxx
Xxxxxxxxx
Xxxx XX00 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
31
---------------------------- -------------------------- ------------------ --------------------- ----------------
(1) (2) (3) (4) (5)
---------------------------- -------------------------- ------------------ --------------------- ----------------
Name Address No. Ordinary Respective Principal
---- ------- ------------ ---------- ---------
Shares Held Proportions (%) Amount of
----------- --------------- ---------
Loan Notes
((pound))
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxx Xxxxxxx Xxxxxxx House 200,000 2.00000 Nil
Xxxxxx Xxxxxxx Xxxx
Xxxxxxx
Xxxxxxxxxxxx
XX00 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxx Xxxxxxx 00 Xxxxxxxxx Xxxxxxx 139,706 1.39706 Xxx
Xxxxxx Xxxxxx X00 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxxxx Xxxx Xxxxxx Magnolia House 419,117 4.19117 Nil
00 Xxxxxxxxxx Xxxx
Xxxxxxxxx
Xxxx XX00 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
Xxxxxxx Xxxxx Xxxxxxxxx 5,000 0.05000 Nil
Xxxxxxxx 000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxxxxx
Xxxxx XX0 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
*Xxxx Xxxx 00 Xxxxxx Xxxxxx 10,000 0.10000 5,106
Xxxx Xxxxx
Xxxxxxx
Xxxxx XX0 0XX
---------------------------- -------------------------- ------------------ --------------------- ----------------
TOTAL 10,000,000 100 252,362
---------------------------- -------------------------- ------------------ --------------------- ----------------
32
SCHEDULE 2
PART A - THE WARRANTORS
Warrantor Proportion
Name (inclusive of Associates)
Xxxxxxx Xxxxx Xxxxxx 70.58824%
Xxxx Xxxxxxxx Xxxxx 13.23529%
Xxxxxxx Xxxxxxxxx Hemmings 8.08824%
Xxxx Xxxx 8.08823%
-----------
100.00000
PART B - THE ASSOCIATES
ASSOCIATES OF XXXXXXX XXXXX XXXXXX:
Xxxxxx Xxxx Xxxxxx
Xxxxxxxxx Xxxx Xxxxxx
Xxx Xxxxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxxxx Xxxxxx
Xxxx Xxxxxxx Xxxxxx
A G A Macfadyen )
X X Xxxxxx ) as Trustees
Xxxxxx Xxxx Xxxxxx )
ASSOCIATES OF XXXX XXXXXXXX XXXXX:
Xxxxxxx Xxxx Xxxxx
A G A Macfadyen )
X X Xxxxxx ) as Trustees
A Baulf )
ASSOCIATES OF XXXXXXX XXXXXXXXX HEMMINGS
Island Trustees Limited )
A G A Macfadyen ) as Trustees
R Xxxxxxxx )
ASSOCIATES OF XXXX XXXX
Xxxxxxxx Xxxx
Xxxxx Xxxx Xxxxxx
Xxxxxx Xxxxx Xxxxx
Xxxxx Xxxx Xxxxx
Xxxx Xxxx )
Xxxxxxxx Xxxx ) as Trustees
A Baulf )
33
SCHEDULE 3
THE COMPANY
Date and place of incorporation: 7 January 1975, England and Wales
Registered number: 1195662
Registered office: Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Authorised share capital: 25,000,000 Ordinary Shares of 10p each
Issued share capital: 10,000,000 Ordinary Shares of 10p each
Directors: X X Xxxxx
L G M Xxxxxx
X X Xxxxxx
Secretary: J R W Xxxxx
Auditors: Mazars Xxxxxxx Xxxxxxx, London
Bankers: National Westminster Bank, London
Accounting reference date: 31 December
34
SCHEDULE 4
THE SUBSIDIARIES
PART A - THE DIRECT SUBSIDIARIES
Name: Xxxxxxx Xxxxxx & Company Limited
Date and place of incorporation: 9 February 1973, England and Wales
Registered number: 1095411
Registered office: Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Authorised share capital: 2,500,000 Ordinary Shares of(pound)1 each
Issued share capital: 1,250,000 Ordinary Shares of(pound)1 each
Shareholder: Xxxxxxx Xxxxxx Group Limited - 1,250,000
Ordinary Shares
Directors: M Bernardes
X X Xxxxxx
X X Xxxxx
L G M Xxxxxx
P T Xxxxxxx
X X Sales
X X Xxxxxxxx
X X Xxxxx
K S Xxxxxxxx
X X Xxxxxx
Secretary: J R W Xxxxx
Auditors: Mazars Xxxxxxx Xxxxxxx, London
Bankers: National Westminster Bank Plc, London
Accounting reference date: 31 December
35
Name: Xxxxxxx Xxxxxx Investments Limited
Date and place of incorporation: 4 May 1990, England and Wales
Registered number: 2499195
Registered office: Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Authorised share capital: 50,000 Ordinary Shares of(pound)1 each
Issued share capital: 1,000 Ordinary Shares of(pound)1 each
Shareholder: Xxxxxxx Xxxxxx Group Limited - 1,000
Ordinary Shares
Directors: X X Xxxxx
X X Xxxxxx
Secretary: J R W Xxxxx
Auditors: Mazars Xxxxxxx Xxxxxxx, London
Bankers: National Westminster Bank Plc, London
Accounting reference date: 31 December
36
Name: Xxxxxxx Terrace Limited
Date and place of incorporation: 10 May 1995, England and Wales
Registered number: 3054628
Registered office: Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Authorised share capital: 100 Ordinary Shares of(pound)1 each
Issued share capital: 100 Ordinary Shares of(pound)1 each
Shareholder: Xxxxxxx Xxxxxx Group Limited - 100
Ordinary Shares
Directors: L G M Xxxxxx
X X Xxxxx
Secretary: J R W Xxxxx
Auditors: Mazars Xxxxxxx Xxxxxxx, London
Bankers: National Westminster Bank Plc, London
Accounting reference date: 31 December
37
Name: International Aviation Brokers Limited
Date and place of incorporation: 00 Xxxxx 0000, Xxxxxxx xxx Xxxxx
Registered number: 3332261
Registered office: Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Authorised share capital: 100 Ordinary Shares of pound 1 pound each
Issued share capital: 100 Ordinary Shares of 1 pound each
Shareholder: Xxxxxxx Xxxxxx Group Limited - 100
Ordinary Shares
Directors: X X Xxxxx
X X Xxxxxx
Secretary: J R W Xxxxx
Auditors: Mazars Xxxxxxx Xxxxxxx, London
Bankers: National Westminster Bank Plc, London
Accounting reference date: 31 December
38
Name: International Space Brokers Limited
Date and place of incorporation: 17 June 1994, England and Wales
Registered number: 2940266
Registered office: Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Authorised share capital: 50,000 Ordinary Shares of(pound)1 each
Issued share capital: 1,000 Ordinary Shares of(pound)1 each
Shareholder: Xxxxxxx Xxxxxx Group Limited - 1,000
Ordinary Shares
Directors: X X Xxxxxxxx
X X Xxxxx
F H G Xxxxxxxx
C P G Xxxxx
X X Xxxxxx
Secretary: J R W Xxxxx
Auditors: Mazars Xxxxxxx Xxxxxxx, London
Bankers: National Westminster Bank Plc, London
Accounting reference date: 31 December
39
Name: International Space Brokers Europe Limited
Date and place of incorporation 14 April 1998, England and Wales
Registered number: 3545611
Registered office: Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Authorised share capital: 100 Ordinary Shares of 1 pound each
Issued share capital: 100 Ordinary Shares of 1 pound each
Shareholder: Xxxxxxx Xxxxxx Group Limited - 100
Ordinary Shares
Directors: X X Xxxxx
X X Xxxxxx
Secretary: J R W Xxxxx
Auditors: Mazars Xxxxxxx Xxxxxxx, London
Bankers: National Westminster Bank Plc, London
Accounting reference date: 31 December
40
Name: Offshore Insurance Brokerage Limited
Date and place of incorporation: 1 March 1976, Bermuda
Registered number: EC4398
Registered office: Xxxxx Xxxxx, 00 Xxxxx Xxxxxx, Xxxxxxxx XX
00, Xxxxxxx
Authorised share capital: 12,000 Shares of US$1 each
Issued share capital: 12,000 Shares 1/6 called and paid
Shareholder: Xxxxxxx Xxxxxx Group Limited
Directors: X X Xxxxxx (President)
L G M Xxxxxx
Secretary: Xxxxx Xxxxxx
J R W Xxxxx (Assistant Secretary)
Auditors: None
Bankers: Bank of N T Xxxxxxxxxxx & Sons Limited
Accounting reference date: 31 December
41
Name: Xxxxxxx Xxxxxx Holdings Canada Limited
Date and place of incorporation: 6 June 1988, England and Wales
Registered number: 2265127
Registered office: Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Authorised share capital: 10,000 Ordinary Shares of(pound)1 each
Issued share capital: 1,000 Ordinary Shares of(pound)1 each
Shareholder: Xxxxxxx Xxxxxx Group Limited - 1,000
Ordinary Shares
Directors: X X Xxxxx
X X Xxxxxx
Secretary: J R W Xxxxx
Auditors: None
Bankers: National Westminster Bank Plc, London
Accounting reference date: 31 December
42
Name: CW Consultants Limited
Date and place of incorporation: 00 Xxxxx 0000, Xxxxxxx xxx Xxxxx
Registered number: 1303650
Registered office: Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Authorised share capital: 5,000 Ordinary Shares of(pound)1 each
Issued share capital: 5,000 Ordinary Shares of(pound)1 each
Shareholder: Xxxxxxx Xxxxxx Group Limited - 5,000
Ordinary Shares
Directors: L G M Xxxxxx
X X Xxxxxx
Secretary: J R W Xxxxx
Auditors: None
Bankers: National Westminster Bank Plc, London
Accounting reference date: 31 December
43
Name: CW Golf Limited
Date and place of incorporation: 17 October 1979, England and Wales
Registered number: 1454719
Registered office: Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Authorised share capital: 1,000 Ordinary Shares of(pound)1 each
Issued share capital: 1,000 Ordinary Shares of(pound)1 each
Shareholder: Xxxxxxx Xxxxxx Group Limited - 1,000
Ordinary Shares
Directors: X X Xxxxx
X X Xxxxxx
Secretary: J R W Xxxxx
Auditors: None
Bankers: National Westminster Bank Plc, London
Accounting reference date: 31 December
44
Name: CW Underwriting Management Limited
Date and place of incorporation: 2 July 1986, England and Wales
Registered number: 2033388
Registered office: Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Authorised share capital: 50,000 Ordinary Shares of(pound)1 each
Issued share capital: 5,000 Ordinary Shares of(pound)1 each
Shareholder: Xxxxxxx Xxxxxx Group Limited - 5,000
Ordinary Shares
Directors: X X Xxxxx
X X Xxxxxx
Secretary: J R W Xxxxx
Auditors: None
Bankers: National Westminster Bank Plc, London
Accounting reference date: 31 December
45
Name: Mansions UK Limited
Date and place of incorporation: 1 September 1995, England and Wales
Registered number: 3097649
Registered office: Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Authorised share capital: 50,000 Ordinary Shares of(pound)1 each
Issued share capital: 1,000 Ordinary Shares of(pound)1 each
Shareholder: Xxxxxxx Xxxxxx Group Limited - 1,000
Ordinary Shares
Directors: L G M Xxxxxx
X X Xxxxxx
Secretary: J R W Xxxxx
Auditors: None
Bankers: National Westminster Bank Plc, London
Accounting reference date: 31 December
46
Name: Voyageur Europe Limited
Date and place of incorporation: 21 December 1990, England and Wales
Registered number: 2570351
Registered office: Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Authorised share capital: 50,000 Ordinary Shares of(pound)1 each
Issued share capital: 1,000 Ordinary Shares of(pound)1 each
Shareholder: Xxxxxxx Xxxxxx Group Limited - 1,000
Ordinary Shares
Directors: X X Xxxxx
X X Xxxxxx
Secretary: J R W Xxxxx
Auditors: None
Bankers: National Westminster Bank Plc, London
Accounting reference date: 31 December
47
Name: Voyageur Insurance Services (UK) Limited
Date and place of incorporation: 24 July 1978, England and Wales
Registered number: 1380068
Registered office: Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Authorised share capital: 50,000 Ordinary Shares of(pound)1 each
Issued share capital: 1,000 Ordinary Shares of(pound)1 each
Shareholder: Xxxxxxx Xxxxxx Group Limited - 1,000
Ordinary Shares
Directors: X X Xxxxx
X X Xxxxxx
Secretary: J R W Xxxxx
Auditors: None
Bankers: National Westminster Bank Plc, London
Accounting reference date: 31 December
48
PART B - THE INDIRECT SUBSIDIARIES
Name: Xxxxxxx Xxxxxx Holdings USA Limited
Date and place of incorporation: 10 October 1989, England and Wales
Registered number: 2430837
Registered office: Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Authorised share capital: 50,000 Ordinary Shares of(pound)1 each
Issued share capital: 1,000 Ordinary Shares of(pound)1 each
Shareholder: Xxxxxxx Xxxxxx Investments Limited - 1,000
Ordinary Shares
Directors: X X Xxxxx
X X Xxxxxx
Secretary: J R W Xxxxx
Auditors: Mazars Xxxxxxx Xxxxxxx, London
Bankers: National Westminster Bank Plc, London
Accounting reference date: 31 December
49
Name: MedRisk International Limited
Date and place of incorporation: 4 May 1995, England and Wales
Registered number: 3053215
Registered office: 00 Xxxxx Xxxxx
Xxxxxx XX0X 0XX
Authorised share capital: 10,000 Ordinary Shares of(pound)1 each
Issued share capital: 10,000 Ordinary Shares of(pound)1 each
Shareholder: TJE Management LLC - 10,000 Ordinary Shares
Directors: H Xxxxxxx
X X Plumb
Secretary: J R W Xxxxx
Auditors: Mazars Xxxxxxx Xxxxxxx, London
Bankers: National Westminster Bank Plc, London
Accounting reference date: 31 December
50
Name: Xxxxxxx Xxxxxx (USA) Inc
Date and place of incorporation: 1974 Massachusetts, USA
EIN: 00-0000000
Registered office: Xxx Xxxxx Xxxxxx, Xxxxxx, XX 00000
Authorised share capital: 12,500 shares
Issued share capital: 1,927 shares
Stockholder: Xxxxxxx Xxxxxx Holdings (USA) Limited
Directors: X X Xxxxxx
X X Xxxxx
Secretary: Xxxxx X Xxxxx
Auditors: Tofias Xxxxxxxxx Xxxxxxx Co, P.C.
Bankers: BankBoston, Boston, MA, USA
Fiscal year: December 31
51
Name: International Accident Facilities Inc
Date and place of incorporation: 1975 Massachusetts, USA
EIN: 00-0000000
Registered office: Xxx Xxxxx Xxxxxx, Xxxxxx, XX 00000
Authorised share capital: 12,500 shares
Issued share capital: 470 shares
Shareholder: Xxxxxxx Xxxxxx (USA) Inc.
Directors: X X Xxxxxx
X X Xxxxx
Secretary: Xxxxx X Xxxxx
Auditors: Tofias Xxxxxxxxx Xxxxxxx Co., P.C.
Bankers: BankBoston
Fiscal year: December 31
52
Name: Xxxxxxx Xxxxxx Insurance Services Inc
Date and place of incorporation: 1950 California, USA (Acquired by CW (USA)
Inc.)
EIN: 95.1639655
Registered office: 000 Xxxxxxxxxx Xxxxxx, Xxx 000, Xxx
Xxxxxxxxx, XX 00000
Authorised share capital: 1,000 shares
Issued share capital: 348 shares
Shareholder: Xxxxxxx Xxxxxx (USA) Inc.
Directors: X X Xxxxxx
X X Xxxxx
X X Xxxxx
Secretary: X X Xxxxx
Auditors: Tofias Xxxxxxxxx Xxxxxxx, Co., PC
Bankers: Union Bank of California
Fiscal year: December 31
53
Name: CW Midwest Inc
Date and place of incorporation: 1993 Indiana, USA
EIN: 35.1884838
Registered office: 000 Xx. Xxxxxxxx Xx, Xxx 0000, Xxxxxxxxxxxx,
XX 00000
Authorised share capital: 100,000
Issued share capital: 1,301
Shareholder: Xxxxxxx Xxxxxx (USA) Inc.
Directors: X X Xxxxxx
X X Xxxxx
Secretary: X X Xxxxx
Auditors: Xxxxxxxxx Xxxxxxx Co. Inc.
Bankers: National City Bank
Civitas Bank
Fiscal year: December 31
Registered Agent: Xxxxxxx X Xxxxxxxxxx
54
Name: Xxxxxxx Xxxxxx Florida Inc
Date and place of incorporation: 1997 Florida, USA
EIN: 00-0000000
Registered office: c/o Corporation Service Company, 0000 Xxxxx
Xxxxxx, Xxxxxxxxxxx, Xx 00000
Authorised share capital: 100,000
Issued share capital: 1,000
Shareholder: Xxxxxxx Xxxxxx (USA) Inc.
Directors: X X Xxxxxx
L G M Xxxxxx
X X Xxxxx
Secretary: X X Xxxxx
Auditors: Tofias, Xxxxxxxxx Xxxxxxx; Co., PC
Bankers: BankBoston
Fiscal year: December 31
55
Name: National Life & General Insurance Agency
Inc.
Date and place of incorporation: 1980 Massachusetts, USA
EIN: 04-12701122
Registered office: Xxx Xxxxx Xxxxxx, Xxxxxx, XX 00000
Authorised share capital: 12,500
Issued share capital: 1,000
Shareholder: International Accident Facilities, Inc.
Directors: X X Xxxxxx
X X Xxxxx
Secretary: X X Xxxxx
Auditors: Tofias Xxxxxxxxx Xxxxxxx; Co., PC
Bankers: BankBoston
Fiscal year: December 31
56
Name: International Claims Administrators Inc
Date and place of incorporation: 1997 Kansas, USA
EIN: 00-0000000
Registered office: 0000 Xxxx Xxxx Xxxxxx, Xxx 000, Xxxxxxx, XX
00000
Authorised share capital: 100,000
Issued share capital: 1,000
Shareholder: Xxxxxxx Xxxxxx (USA) Inc.
Directors: X X Xxxxxx
L G M Xxxxxx
X X Xxxxx
Secretary: X X Xxxxx
Auditors: Tofias Xxxxxxxxx Xxxxxxx; Co., PC
Bankers: BankBoston
Fiscal year: December 31
57
Name: TJE Management LLC
Date and place of incorporation: 1994 Minnesota, USA
Registered number: 00-0000000
Registered office: 000 Xx. 0xx Xxxxxx, Xxx 0000, Xxxxxxxxxxx,
XX 00000
Authorised share capital: None
Issued share capital: None
Shareholder: Xxxxxxx Xxxxxx (USA) Inc. 63.2%
Xxxxxx X Xxxxxxx 36.8%
Directors: None
Secretary: None
Auditors: Xxxx Xxxxxx LLP, Eden, MN
Bankers: First Bank, Minneapolis
Fiscal year: December 31
58
Name: International Accident Facilities (Texas)
Inc.
Date and place of incorporation: 1996 Texas, USA
Registered number: 75.2651286
Registered office: 000 Xxxxxx Xx., Xxxxx 0000, Xxxxxxx, Xxxxx
00000-0000
Authorised share capital: 100,000 (per value 0.01)
Issued share capital: 1,000
Shareholder: Xxxxxxxx X Xxxxxx
Directors: Xxxxxxxx X Xxxxxx
Secretary: Xxxxxxxx X Xxxxxx
Auditors: Tofias Xxxxxxxxx Xxxxxxx; Co., PC
Bankers: Frost Bank
Fiscal year: December 31
Members: Xxxxx X Xxxxx
59
Name: Xxxxxxx Xxxxxx Australia Pty Limited
Date and place of incorporation: 6 February 1995 at Sydney, Australia
Registered number: Australian Company Number 068 096 748
Registered office: Xxxxx 0, Xxxxx & Xxxxxxx Xxxxx, 0 Xxxx
Xxxxxx, Xxxxxx
Issued share capital: 170,000 ordinary shares of AUS$1 each, fully
paid
Shareholder: Xxxxxxx Xxxxxx Investments Ltd
Directors: Xxxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxx Xxxxxx,
Xxxxxxx Xxxxxxxx, Xxxxxxxx Xxxxxxx
Secretary: Xxxxxxxx Xxxxxxx & Xxxxxxx Xxxxxxxx (joint)
Auditors: Lord & Xxxxx Chartered Accountants
Bankers: St Xxxxxx Partnership Bank, Sydney
Accounting reference date: 31 December
60
Name: Mansions of Australia Pty Limited
Date and place of incorporation: 00 Xxxxxxxxx 0000 xx Xxx Xxxxx Xxxxx,
Xxxxxxxxx
Registered number: Australian Company Number 071 258 752
Registered office: Xxxx Xxxxx, Xxxxx 0, Xxxxx & Xxxxxxx Xxxxx,
0 Xxxx Xxxxxx, Xxxxxx XXX 0000, Xxxxxxxxx
Issued share capital: 370,000 ordinary shares of AUS$1 each, fully
paid
Shareholder: Xxxxxxx Xxxxxx Investments Ltd
Directors: Xxxxxxx Xxxxxxxx (local director), X X
Xxxxxx, X X Xxxxx
Secretary: Xxxxxxx Xxxxxxxx
Xxxxxxxx Xxxxxxx
Auditors: Lord Xxxxx, Xxxxx 0, 0 Xxxx Xxxxxx, Xxxxxx
XXX 0000, Xxxxxxxxx
Bankers: St Xxxxxx Bank Ltd, 0 Xxxxx Xxxxxx, Xxxxxx
XXX 0000, Xxxxxxxxx
Accounting reference date: 31 December
61
Name: CW Accident & Health Limited
Date and place of incorporation: 27 January 1986, England and Wales
Registered number: 1982820
Registered office: Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Authorised share capital: 50,000 Ordinary Shares of(pound)1 each
Issued share capital: 1,000 Ordinary Shares of(pound)1 each
Shareholder: Xxxxxxx Xxxxxx & Company Limited - 1,000
Ordinary Shares
Directors: M Bernardes
P Xxxxxxxx
X Xxxxxxx
C Xxxxx
G A Packer
X X Xxxxxxxx
X X Xxxxx
M Xxxxxx
X X Xxxxxx
X X Xxxxxx
Secretary: J R W Xxxxx
Auditors: None
Bankers: National Westminster Bank Plc, London
Accounting reference date: 31 December
62
Name: CW Aerospace Limited
Date and place of incorporation: 9 February 1981, England and Wales
Registered number: 1544212
Registered office: Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Authorised share capital: 4,000 Ordinary Shares of 25p each
20,000 Deferred Shares of 25p each
Issued share capital: 4,000 Ordinary Shares of 25p each
20,000 Deferred Shares of 25p each
Shareholder: Xxxxxxx Xxxxxx & Company Limited - 4,000
Ordinary Shares & 20,000 Deferred Shares
Directors: X X Xxxxxxxx
X X Xxxxxxxx
X X Xxxxxxxx
X X Xxxxxxx
X X Xxxxx
F H G Xxxxxxxx
X X Sales
C P G Xxxxx
X X Xxxxxx
Secretary: J R W Xxxxx
Auditors: None
Bankers: National Westminster Bank Plc, London
Accounting reference date: 31 December
63
Name: CW Bloodstock Limited
Date and place of incorporation: 13 January 1987, England and Wales
Registered number: 2089016
Registered office: Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Authorised share capital: 50,000 Ordinary Shares of(pound)1 each
Issued share capital: 1,000 Ordinary Shares of(pound)1 each
Shareholder: Xxxxxxx Xxxxxx & Company Limited - 1,000
Ordinary Shares
Directors: G A H Xxxxxxx
X X Xxxxxx
X X Xxxxx
X X Xxxx
X X Xxxxxx
Secretary: J R W Xxxxx
Auditors: None
Bankers: National Westminster Bank Plc, London
Accounting reference date: 31 December
64
Name: CW Film & Entertainment Limited
Date and place of incorporation: 23 July 1993, England and Wales
Registered number: 2838915
Registered office: Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Authorised share capital: 50,000 Ordinary Shares of(pound)1 each
Issued share capital: 1,000 Ordinary Shares of(pound)1 each
Shareholder: CW Accident & Health Limited - 1,000
Ordinary Shares
Directors: M Bernardes
X X Xxxxxx
X X Xxxxx
X X Xxxxxxxx
X X Xxxxxx
Secretary: J R W Xxxxx
Auditors: None
Bankers: National Westminster Bank Plc, London
Accounting reference date: 31 December
65
Name: CW Group Services Limited
Date and place of incorporation: 28 January 1986, England and Wales
Registered number: 1983314
Registered office: Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Authorised share capital: 50,000 Ordinary Shares of(pound)1 each
Issued share capital: 1,000 Ordinary Shares of(pound)1 each
Shareholder: Xxxxxxx Xxxxxx & Company Limited - 1,000
Ordinary Shares
Directors: M I Xxxxxxx
M A G Dyas
X X Xxxxxxx
X X Xxxxxx
M D Xxxxxxxx
A Wood
Secretary: J R W Xxxxx
Auditors: None
Bankers: National Westminster Bank Plc, London
Accounting reference date: 31 December
66
Name: CW Life Limited
Date and place of incorporation: 11 November 1988, England and Wales
Registered number: 2315865
Registered office: Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Authorised share capital: 50,000 Ordinary Shares of(pound)1 each
Issued share capital: 1,000 Ordinary Shares of(pound)1 each
Shareholder: Xxxxxxx Xxxxxx & Company Limited - 1,000
Ordinary Shares
Directors: X X Xxxxx
X X Xxxxxx
Secretary: J R W Xxxxx
Auditors: None
Bankers: National Westminster Bank Plc, London
Accounting reference date: 31 December
67
Name: CW Marine Limited
Date and place of incorporation: 10 October 1988, England and Wales
Registered number: 2303482
Registered office: Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Authorised share capital: 50,000 Ordinary Shares of(pound)1 each
Issued share capital: 1,000 Ordinary Shares of(pound)1 each
Shareholder: Xxxxxxx Xxxxxx & Company Limited - 1,000
Ordinary Shares
Directors: X X Xxxxx
X X Xxxxx
P T Xxxxxxx
X X Xxxx
X X Xxxxxx
Secretary: J R W Xxxxx
Auditors: None
Bankers: National Westminster Bank Plc, London
Accounting reference date: 31 December
68
Name: CW Political & Financial Risks Limited
Date and place of incorporation: 19 January 1993, England and Wales
Registered number: 2781097
Registered office: Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Authorised share capital: 50,000 Ordinary Shares of(pound)1 each
Issued share capital: 1,000 Ordinary Shares of(pound)1 each
Shareholder: Xxxxxxx Xxxxxx & Company Limited - 1,000
Ordinary Shares
Directors: X X Xxxxx
X X Xxxxxx
P A Sweesey
X X Xxxxxx
Secretary: J R W Xxxxx
Auditors: None
Bankers: National Westminster Bank Plc, London
Accounting reference date: 31 December
69
Name: CW Property & Casualty Limited
Date and place of incorporation: 27 January 1986, England and Wales
Registered number: 1982821
Registered office: Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Authorised share capital: 50,000 Ordinary Shares of(pound)1 each
Issued share capital: 1,000 Ordinary Shares of(pound)1 each
Shareholder: Xxxxxxx Xxxxxx & Company Limited - 1,000
Ordinary Shares
Directors: S Cleminson
X X Xxxxxx
X X X XxxXxxxxxxx
X X Xxxxxx
E C V Xxxxxxxx
Secretary: J R W Xxxxx
Auditors: None
Bankers: National Westminster Bank Plc, London
Accounting reference date: 31 December
70
Name: CW Reinsurance Intermediaries Limited
Date and place of incorporation: 27 December 1973, England and Wales
Registered number: 1153430
Registered office: Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Authorised share capital: 50,000 Ordinary Shares of(pound)1 each
Issued share capital: 10,000 Ordinary Shares of(pound)1 each
Shareholder: Xxxxxxx Xxxxxx & Company Limited - 10,000
Ordinary Shares
Directors: S C Frame
X X XxXxxxxx
X X Xxxxxxx
G Millen
H D A Xxxx
X X Xxxxxx
Secretary: J R W Xxxxx
Auditors: None
Bankers: National Westminster Bank Plc, London
Accounting reference date: 31 December
71
Name: CW Special Risks UK Limited
Date and place of incorporation: 15 February 1982, England and Wales
Registered number: 1613939
Registered office: Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Authorised share capital: 1,000 Ordinary Shares of(pound)1 each
Issued share capital: 1,000 Ordinary Shares of(pound)1 each
Shareholder: Xxxxxxx Xxxxxx & Company Limited - 1,000
Ordinary Shares
Directors: X X Xxxxx
X X Xxxxxx
Secretary: J R W Xxxxx
Auditors: None
Bankers: National Westminster Bank Plc, London
Accounting reference date: 31 December
72
Name: CW UK Limited
Date and place of incorporation: 18 November 1986, England and Wales
Registered number: 2075157
Registered office: Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Authorised share capital: 50,000 Ordinary Shares of(pound)1 each
Issued share capital: 200 Ordinary Shares of(pound)1 each
Shareholder: CW Bloodstock Limited - 200 Ordinary Shares
Directors: X X Xxxxx
X X Xxxxxx
Secretary: J R W Xxxxx
Auditors: None
Bankers: National Westminster Bank Plc, London
Accounting reference date: 31 December
73
SCHEDULE 5
MATTERS REPRESENTED AND WARRANTED
PART A - GENERAL
1 FACTUAL STATEMENTS
1.1 All statements of fact in this Agreement are correct.
2 CONSTITUTION AND STRUCTURE OF THE GROUP
2.1 Except as stated in schedule 4, each Group Company is a private
company limited by shares incorporated in England.
2.2 The shares set out in schedule 1 (being the Sale Shares) are fully
paid up and constitute the entire issued share capital of the
Company and all the other information set out in schedule 1 and all
the information set out in schedules 2 and 3 is complete and
accurate in all respects.
2.3 The Subsidiaries are the only subsidiaries of the Company and the
Company owns the entire issued share capital of each Subsidiary,
fully paid up and free from any liens, charges or encumbrances;
2.4 CWG owns 25% of the issued share capital of Uni-Alliance Insurance
Holdings Ltd. (such shares being fully paid up), the Company's
liabilities to this company are limited to such shareholding and CWG
is not a party to any shareholders agreement or arrangement in
relation to Uni-Alliance Insurance Holdings Ltd.
2.5 The Company has no:
(a) interest in the share capital of, or other investment
in, any body corporate other than the Subsidiaries;
(b) interest in any partnership, joint venture, consortium
or other unincorporated association or arrangement for
sharing profit other than the Subsidiaries; or
(c) branch, agency, place of business or permanent
establishment outside the United Kingdom ("OVERSEAS
BRANCH") or substantial assets outside the United
Kingdom other than such of the Subsidiaries incorporated
overseas;
and has no outstanding obligation to acquire any such interest or
overseas branch or in respect of any such interest or overseas
branch formerly owned by it or agreed to be acquired by it.
2.6 Copies of the Memorandum and Articles of Association of each Group
Company (having attached thereto copies of all such resolutions as
are by law required to be attached thereto) are attached to the
Disclosure Letter.
2.7 There is no shadow director of the Company.
74
2.8 Xxxxxxx Xxxxxx (USA) Inc. owns not less than 46.35% of the total
issued and outstanding voting and non-voting common stock of ISB and
50% of the voting common stock of ISB.
3 POWERS AND OBLIGATIONS OF THE VENDORS
3.1 This Agreement constitutes, and the Taxation Deed and the other
documents executed by the Vendors which are to be delivered at
Completion will, when executed, constitute legal, valid and binding
obligations of the Vendors enforceable in accordance with their
respective terms.
3.2 The execution and delivery of, and the performance by the Vendors of
their respective obligations under, and compliance with the
provisions of, this Agreement and the Taxation Deed by the Vendors
will not:
(a) result in a breach of, or constitute a default under,
any instrument to which any of the Vendors is a party or
by which any of the Vendors is bound; or
(b) result in a violation of any law or regulation in any
jurisdiction having the force of law or of any order,
judgment or decree of any court or governmental agency
or agreement to which any of the Vendors is a party or
by which any of the Vendors is bound.
4 COMPLIANCE WITH LEGAL REQUIREMENTS (INCLUDING LLOYD'S)
4.1 Compliance has been made with all legal and procedural requirements
and other formalities in relation to the Company concerning:
(a) the Memorandum and Articles of Association or other
constitutional documents (including all resolutions
passed or purported to have been passed) and the keeping
of Company Books as required and in accordance with CA
1985;
(b) the filing of all documents required by the Companies
Acts 1985 and 1989 or by legislation corresponding
thereto in other jurisdictions to be filed at Companies
House or other corresponding registry;
(c) issues of shares, debentures or other securities;
(d) payments of interest and dividends and the making of
other distributions; and
(e) Directors (including any shadow directors) and other
officers.
4.2 Copies of all documents referred to in paragraph 4.1(b) above appear
on the Company's file at Companies House or other corresponding
registry or are attached to the Disclosure Letter.
4.3 The Company has obtained or, has procured that the appropriate
Subsidiary has obtained all licences, permissions, consents and
other approvals required for or in connection with the carrying on
of the Business in the places and in the
75
manner in which the Business is now carried on; such licences,
permissions, consents and approvals are in full force and effect,
are not limited in duration or subject to any unusual or onerous
conditions and have been complied with in all respects, and there
are no circumstances which indicate that any of such licences,
permissions, consents, or approvals will or may be revoked or not
renewed or which may confer a right of revocation.
4.4 All registers and minute books required by law to be kept by the
Company have been properly written up and contain an accurate and
complete record of the matters which should be dealt with therein
and the Company has not received any application or request for
rectification of its statutory registers or any notice or allegation
that any of them is incorrect.
4.5 The Company has conducted its business in all material respects in
accordance with all applicable laws and regulations of the United
Kingdom and any relevant foreign country including (without
limitation) the Insurance Brokers Registration Xxx 0000, the IBRC
Code of Conduct, the Lloyd's Acts 1871 to 1982 and all bye-laws,
rules and regulations thereunder and all codes of practice issued by
Lloyd's and all undertakings given to Lloyd's from time to time
including without limitation Lloyd's Code of Practice for Lloyd's
Brokers. There is no order, decree or judgment of any Court or any
governmental agency or regulator outstanding against the Company or
which may have a material adverse affect upon the assets or business
of the Company.
4.6 The Company has complied in all material respects with all statutes
and regulations applicable to it or to its property, including
(without limitation) CA 1985 and the Health and Safety at Work etc.
Xxx 0000.
4.7 As far as the Warrantors are aware there are no grounds for
disciplinary enquiries or proceedings by any regulatory body against
the Company or its directors and any other employees.
4.8 All documents, accounts, reports and returns required by the
applicable regulatory body to be filed, deposited or submitted have
been duly filed, deposited or submitted.
4.9 No discussions have taken place, whether of a formal or informal
nature, between the Company and any regulatory body which might
render necessary or desirable or suggest any material alteration in
the way in which the Company carries on the Business, might restrict
or affect the Business in any material way or might lead to the
withdrawal of authorisation under any relevant legislation, the
imposition of conditions or special requirements or intervention by
any regulatory body in the Business.
4.10 The Company has not been party to the placement, directly or
indirectly, of insurances which are:
(a) unlawful under the law of any relevant jurisdiction; or
(b) contrary to IBRC or Lloyd's (or other relevant overseas)
bye-laws, regulations, directions or codes; or
76
(c) fictitious or sham transactions
and the Company has not purported to arrange insurances with
companies not authorised to carry on business as insurers in the
relevant territory.
4.11 Neither the Company nor any officer, employee or agent of the
Company has carried on insurance business as insurance broker in any
part of the world without due authorisation from the appropriate
regulatory authority or without being the agent of a duly authorised
carrier.
4.12 Details of all the licences, permission and consents required for
the carrying on of the Business are set out in the Disclosure
Letter.
4.13 The Lloyd's Company is duly registered as a Lloyd's broker and has
at all times in all material respects complied with the provisions
of the Lloyd's Acts 1871 to 1982 and all bye-laws, rules,
regulations, codes or practice resolutions and directions thereunder
and any undertakings given to Lloyd's from time to time and the
Company has not been notified that it has committed any
contravention of any of the same.
4.14 Except for the enquiry into the affairs of the Lloyd's Company by
Lloyd's Brokers Department in 1998, in respect of which further
warranties are given below, neither the Lloyd's Company nor any of
its directors, officers or employees from time to time have been the
subject of any enquiry by Lloyd's nor formally warned or reprimanded
by Lloyd's and there are no circumstances which could give rise to
such enquiry, warning or reprimand.
4.15 All action that the Lloyd's Company was required to take in order to
comply with the findings of the enquiry carried out into its affairs
by Lloyd's Brokers Department in 1998, has been taken to the
satisfaction of Lloyd's Brokers Department.
4.16 The Lloyd's Company has not entered into an umbrella arrangement
pursuant to the provisions of the Lloyd's Umbrella Arrangement
Byelaw No. 6 of 1988 or otherwise.
4.17 All appropriate security and trust deeds have been executed and all
insurance monies held by or on behalf of the Lloyd's Company are
held subject thereto.
4.18 The Lloyd's Company does not act as a guarantor of a non-Lloyd's
broker.
4.19 All directors of the Lloyd's Company comply with Rule 15(1) of the
Lloyd's Broker Byelaw (No. 5 of 1988).
4.20 The Lloyd's Company is duly registered as an insurance broker under
the Insurance Brokers (Registration) Xxx 0000 and there are no
circumstances relating to the Company's business or affairs, which
might materially prejudice such registration.
4.21 The Lloyd's Company has at all times complied with the provisions of
the Insurance Brokers (Registration) Xxx 0000 and all byelaws and
regulations thereunder and all undertakings given to the IBRC from
time to time.
77
4.22 The complaint against, and investigation by the Texas Department of
Insurance of, International Accident Facilities Inc. and
International Facilities of Texas Inc. (relating to the sale by
those companies of Lloyd's policies without a licence and the
dealing in surplus lines risk without the involvement of a
Texan-authorised surplus lines broker) has been settled to the
satisfaction of the complainant and the Texas Department of
Insurance and there is no further claim or liability whatsoever in
respect of these matters.
4.23 The Company has not received notification that any investigation or
enquiry is being or has been conducted by any governmental or other
body in respect of its affairs and the Warrantors are not aware of
any circumstances which are likely to give rise to such
investigation or enquiry.
4.24 There are attached to the Disclosure Letter copies of all charges
created by the Company and currently in force and all such charges
have been registered (if appropriate) under Part XII CA 1985 and are
valid and enforceable.
5 NET RETAINED BROKERAGE AND COMMISSION
5.1 The Company has neither paid nor received any commission nor made
any payments or entered into any other arrangement, whether to
secure business or otherwise, to any person, firm or body which in
the hand of such person, firm or body would be regarded under the
laws of any part of the United Kingdom (or the laws of any other
country to which such person, firm or body may be subject) as
illegal or improper.
5.2 So far as the Warrantors are aware all commission credited in the
books of the Company will be collected in the ordinary course of
business.
5.3 The Disclosure Letter sets out accurately the policy of the Company
with respect to the crediting of brokerage in its books of accounts
and (i) no credit has been taken for brokerage except in accordance
with that policy and (ii) there are no facts or circumstances known
to the Warrantors or the Company which might require reversal of
brokerage credit entries or return of brokerage already collected.
6 CLIENTS AND CLIENT CONTRACTS
6.1 So far as the Warrantors are aware, neither this Agreement, nor
Completion will or is likely to cause, ipso facto, any person who
normally does business with the Company in relation to the Business,
not to continue to do so with the Company on the same basis.
6.2 There are no clients or customers of the Business other than the
Clients.
6.3 All of the Client Contracts:
(a) have been entered into the ordinary course of the
Business; and
(b) are on arms length terms.
6.4 None of the Client Contracts:
78
(a) are (having regard to the normal terms and conditions
prevailing in similar businesses) of an unusual or long
term nature; or
(b) give rise to any obligation on the Company in the nature
of a guarantee.
6.5 Save as set out in the Disclosure Letter, the Company has no
standard terms and conditions of business with Clients.
6.6 Each Client Contract is valid and in full force and effect, and
there is no material default or claim of material default under any
provision thereof.
6.7 There are no material unresolved disputes under any of the Client
Contracts and the Warrantors are not aware of any reasons, facts or
circumstances which are likely (or, if known to such Client, would
be likely) to give rise to any material dispute in relation to any
of the Client Contracts.
6.8 The Client Contracts comprise all the contracts to which the Company
is a party which directly or indirectly represent all the sources of
brokerage commission of the Business at the date hereof.
6.9 Intentionally omitted
6.10 The placing of insurance on behalf of Clients represents the only
source of income of the Business at the date hereof.
7 CLIENT CREDITORS
7.1 None of the Client Creditors is disputed by the Company, and there
are no circumstances that are likely, (or, if known to such Client
would be likely) to give rise to any dispute in relation to any of
the Client Creditors.
7.2 There are no amounts due and owing by the Company in connection with
the Business which the failure to pay has, or which would with the
passage of time have, a material and adverse effect on the Business.
8 INSURANCE COMPANIES/SYNDICATES
8.1 The Disclosure Letter contains details of all communications
received during the preceding period of 24 months (written or oral)
between the Company and any insurance company or Lloyd's syndicate
threatening to write to policy holders in respect of a default on
the part of the Company, cancel insurance policies, or withhold or
not renew cover. No such insurance company or Lloyd's syndicate has
during the period of 24 months preceding the date hereof taken any
such action in respect of a Client who represents, or Clients who
together represent, a material part of the Business. There is no
fact or circumstance which would or might reasonably be expected to
cause any such insurance company or Lloyd's syndicate to take any
such action in respect of a Client who represents, or Clients who
together represent, a material part of the Business. "Material" in
this warranty means not less than 2% of turnover.
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8.2 All of the Client Contracts can be terminated by either party
thereto on not more than three months written notice, without
payment of any penalty or without giving rise to any claim for
damages or compensation.
8.3 None of the Client Contracts is known to be likely to result in a
loss to any of the Business on completion of performance.
8.4 There are no agreements with insurers or Lloyd's syndicates whereby
the Company is liable to pay additional premium to such insurers or
Lloyd's syndicates to preserve the insurer's or Lloyd's syndicates
premium/loss ratio.
9 CONDUCT OF BUSINESS
9.1 The Company and/or its sub-agents and/or other delegates has/have
not purported to bind any risk under any authority, or other
facility except in strict accordance with the terms of such
authority or facility. The Company has not given anyone else
authority to bind any risk under any authority, or other facility
except in strict accordance with the terms of such authority or
facility granted.
9.2 No cover note or other intimation of cover has been knowingly issued
or sent to any person by the Company unless and until the relevant
risk has been properly bound and all cover notes and intimations of
cover issued by the Company are complete and accurate in all
material respects.
9.3 The Company's IBAs have been maintained and used in accordance with
all applicable rules, regulations and codes of conduct and no notice
has been received from any regulatory authority (or is threatened or
likely to be received) with regard to the use of IBAs.
9.4 The Company's policies on funding either premium or claims are
contained in the Disclosure Letter. So far as the Warrantors are
aware, all sums funded will be collected in the ordinary course of
business within credit terms agreed.
9.5 The Company has not settled insurance premiums, claims returns of
premium, brokerage, commission adjustments and other items in
account except with the authority (expressed or implied) of the
principal on whose behalf such settlements purport to have been
made.
9.6 When settling accounts with other insurance intermediaries the
Company has taken credit only for its share of commission
receivable. The Company has not when settling an account with other
insurance intermediaries taken credit for claims collectable but not
collected by the other party to such accounts.
9.7 The Company's policy with regard to security (behind Clients'
policies) is set out in the Disclosure Letter.
9.8 In the placement of insurances and presentation of claims
notifications, processing or other handling of claims, the Company
has not breached any duty owed to the relevant Client including but
not limited to the duty (to the extent applicable) to make full
disclosure of material facts to underwriters.
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9.9 The brokerage due to ISB in respect of the Iridium programme placed
by ISB has been paid in full and is credited in ISB's insurance
ledger.
10 ERRORS AND OMISSIONS INSURANCE
10.1 The Company is now and has at all times been insured against errors
and omissions in amounts not less than those specified from time to
time by Lloyd's and the IBRC.
10.2 There is no outstanding claim nor have any circumstances likely to
give rise to a claim been reported under the errors and omissions
insurance maintained by the Company and neither the Warrantors nor
the Company is aware of any facts or circumstances likely to give
rise to any claim under such insurance.
10.3 No errors and omissions insurer has failed or refused to pay any
claim made by or on behalf of the Company during the six years prior
to the date of this Agreement and there are no circumstances that
might lead to any liability under such insurance being avoided.
10.4 The Company's errors and omissions insurance (including work done by
the Company in respect of the renewal of the current errors and
omissions insurance policies) has been placed and continued on the
basis of full disclosure by the Company and all declarations made to
errors and omissions insurers were true, complete and accurate and
where necessary supplemented in the light of changing circumstances.
11 ACCOUNTS
11.1 The Accounts:
(a) comply with the requirements of CA 1985;
(b) comply with all current statements of standard
accounting practice, financial reporting standards and
Urgent Issues Task Force Abstracts applicable to a
company incorporated in the United Kingdom and have been
prepared in accordance with the historical cost
convention, on a recognised and consistent basis and on
the same basis and in accordance with the same
accounting policies as the corresponding accounts for
the preceding 3 financial years;
(c) give a true and fair view of the state of affairs of the
Group as at the Accounts Date and its profit for the
financial year ended on that date; and have not been
affected by any unusual, extraordinary, exceptional or
non-recurring items other than those identified as such;
(d) are accurate in all material respects; and
(e) make full provision for all established liabilities or
make proper provision for (or contain a note in
accordance with good accounting practice respecting) all
deferred or contingent liabilities (whether
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liquidated or unliquidated) at the date thereof,
including (without limitation) for the cessation or
diminution of any part of the Business, closure costs
and deferred taxation, Provided that (without
limitation) where provision for deferred taxation is not
made in the Accounts details of all or any deferred
taxation liability have been disclosed to the Purchaser
in the Disclosure Letter.
11.2 (Without limiting paragraph 11.1 above):
(a) adequate provision has been made in the Accounts:
(i) for depreciation of assets;
(ii) in valuing work-in-progress for any
foreseeable losses which may arise on
completion or realisation;
(iii) for any foreseeable liabilities in relation
to the disposal of any assets or the
cessation or diminution of any part of the
Business or closures;
(iv) for bad or doubtful debts; and
(v) for the future cost (calculated on an
actuarial basis) of any unfunded commitments
under any pension scheme involving the
Company.
11.3 The results shown by the audited consolidated accounts for each of
the 2 financial periods of the Company immediately preceding the
financial year ended on the Accounts Date were not (save as
disclosed therein) affected by any extraordinary, exceptional or
non-recurring item (bearing the meanings attributed to them by the
Financial Reporting Standards Board in the Financial Reporting
Standards) or by any other factor rendering such results for all or
any part of such periods unusually high or low.
11.4 The value of the fixed assets shown in the Accounts did not exceed
their market value at the Accounts Date.
11.5 The accounting records of the Company have been properly written up
on a consistent basis and accurately reflect all the transactions to
which the Company has been a party and contain all matters required
by CA 1985 to be entered in them.
11.6 The Management Accounts (a copy of which has been attached to the
Disclosure Letter) have been prepared on a prudent basis consistent
in all material respects with the Accounts and since 30 June 1999,
no further provision for bad debts or other extraordinary provision
has been made which is not known to the Purchaser.
11.7 There have been no reports concerning and commissioned by the
Company by accountants or by financial or management consultants
within the 3 years prior to the date hereof.
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11.8 The Company has not factored or discounted any of its debts or
engaged in financing of a type that would not require to be shown or
reflected in the Accounts.
11.9 All debts (less any specific provision made in the Accounts) due to
the Company included in the Accounts and all debts now due to the
Company (less any such specific provision made) have either prior to
the date hereof realised or will realise their full amount in cash
in the ordinary course of business.
11.10 The accounting reference date of the Company is 31 December and has
at all times during the last 5 years been 31 December.
12 SHARE CAPITAL
12.1 There is no option, right to acquire, mortgage, charge, pledge, lien
or other form of security or encumbrance on, over or affecting the
Sale Shares, there is no agreement or commitment to give or create
any of the foregoing and no person has made any claim to be entitled
to any of the foregoing.
12.2 The Vendors are entitled to sell and transfer or procure the sale
and transfer of the full legal and beneficial ownership in the Sale
Shares to the Purchaser on the terms set out in this Agreement.
12.3 No share or loan capital of the Company is now under option or is
agreed or resolved conditionally or unconditionally to be created or
issued or put under option.
12.4 The Company has not at any time:
(a) purchased or redeemed or repaid or agreed to purchase,
redeem or repay any share capital; or
(b) given or agreed to give any financial assistance in
connection with any such acquisition of share capital as
would fall within sections 151 to 158 (inclusive) CA
1985.
12.5 The Company has not made and is not proposing to make a distribution
except out of profits available for the purpose and none of the
reserves appearing in the Accounts are undistributable reserves.
13 OWNERSHIP AND CONDITION OF ASSETS
13.1 The fixed and loose plant, machinery, furniture, fixtures, fittings,
equipment, vehicles and all other assets used in relation to the
Business are the property of the relevant Group Company free from
any hire or hire-purchase agreement or agreement for payment on
deferred terms or xxxx of sale or lien, mortgage, charge,
encumbrance, burden or other adverse claim and have at all material
times been and are in the possession of or under the control of the
relevant Group Company.
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13.2 The Company owns or has and will following Completion have, the
right to use all assets and rights that it needs to carry on the
Business as carried on immediately prior to Completion.
13.3 So far as the Warrantors are aware all plant, machinery, vehicles
and equipment owned or used by the Company is in good condition and
in working order, has been properly serviced and maintained on a
regular basis by competent personnel and complies with appropriate
safety regulations and none is dangerous, inefficient, out-of-date,
unsuitable, in need of renewal or replacement or surplus to
requirements.
13.4 The Company maintains no plant register of the fixed assets used by
it in the Business.
13.5 There has been no exercise or purported exercise of any Security
Interest over any of the fixed or other assets of the Company and
there is no dispute directly or indirectly relating to any such
assets.
13.6 In respect of all plant and machinery held by the Company under any
hire-purchase, conditional sale, leasing or rental agreement:
(a) a summary of the value of all such hire-purchase and
conditional sale agreements, leases and rental
agreements is attached to the Disclosure Letter;
(b) where the annual rental or charge exceeds (pound)5,000
the amount of the last rental payable by the Company is
the amount currently payable under such hire-purchase,
conditional sale, leasing or rental agreement having
regard to all its terms, and at the date hereof no
circumstance exists by virtue of which the lessor or the
owner is or might be entitled to require an upward
adjustment to the rental;
(c) no circumstances have occurred which would entitle the
lessor or the owner to terminate any such hire-purchase,
conditional sale, leasing or rental agreement; and
(d) no inquiry or investigation is being conducted by the
Inland Revenue concerning the availability to the lessor
of capital allowances in respect of the plant and
machinery concerned.
14 INSURANCE
14.1 The Company has effected all insurances required by law to be
effected by it.
14.2 The Company maintains and has maintained with a reputable insurance
office or underwriter adequate insurance cover against all risks
prudently insured against by companies carrying on a similar
business and in particular:
(a) its assets are covered against those risks to their full
replacement or reinstatement value (including where
relevant the cost of any demolition and of all fees and
expenses which may be incurred in such replacement or
reinstatement) free from any deduction or excess;
84
(b) the Company is adequately covered against personal
accident, public and product liability, loss of profits,
consequential loss, employers' liability acts of
terrorism, professional indemnity, and other risks
prudently covered by insurance by such companies; and
(c) in respect of policies insuring those of the leasehold
properties where the Company is responsible for
maintaining the insurance the policy conforms in all
respects to the requirements of the relevant lease.
14.3 All premiums due on the policies in respect of such insurance cover
("the Policies") have been paid; all the other conditions of the
Policies have been performed and observed; and none of the Policies
has or may become void or voidable as a result of an act or omission
of the Company prior to the Completion Date.
14.4 None of the Policies is subject to any special or unusual terms or
restrictions or to the payment of any premium in excess of the usual
rate.
14.5 The Policies, together with the receipts for the latest premiums
payable in respect thereof, are in the possession of the Company.
14.6 The Policies will continue in full force and effect notwithstanding
Completion.
14.7 No claim exceeding (pound)5,000 is outstanding either by the insurer
or the insured under any of the Policies and no claim against the
Company by any third party is outstanding in respect of any risk
covered by any of the Policies or by any policy previously held by
the Company.
14.8 There are no circumstances which would or might entitle the Company
to make a claim under any of the Policies or which would or might be
required under any of the Policies to be notified to the insurers.
14.9 The Company has no keyman insurance or equivalent insurance with
respect to any of its directors or employees.
15 TRADING
15.1 Save for any warranty implied by law or contained in writing, the
Company has not given any warranty or guarantee, or made any
representation, in respect of services supplied or agreed to be
supplied by it.
15.2 No part of the Company's business has been materially and adversely
affected by the loss during the 3 years ended on the Accounts Date
of:
(a) any important client or source of supply, (being a
client or insurer which over a period of 3 months or
more during those 3 years has accounted for 5 per cent.
or more in value of the services supplied by or to the
Company during that period);
(b) an overall decrease in the value of business received by
or supplies made to the Company; or
85
(c) by any abnormal factor not affecting similar businesses
to a like extent
and no such client or insurer has given notice to the Company of an
intention to cease or reduce dealing with or supplies to the
Company.
15.3 Neither this Agreement nor Completion is likely to cause the Company
to lose the benefit of any right or privilege that it presently
enjoys.
15.4 So far as the Warrantors are aware:
(a) neither this Agreement nor Completion is likely to cause
any person who normally does business with the Company
not to continue to do so on the same basis; and
(b) the attitude or actions of clients, insurers, employees
and other persons with regard to the Company will not be
otherwise prejudicially affected by the execution of
this Agreement or Completion.
15.5 The Company has not committed any material breach of any agreement
or arrangement to which it is a party.
15.6 The Company has not paid to any person any sum in the nature of a
bribe or improper inducement.
15.7 Other than in the ordinary course of a client relationship the
Company is not a party to any confidentiality or secrecy agreement
or undertaking or other arrangement, which may restrict its use or
disclosure of any information.
15.8 The Company has exclusive ownership (free of any lien or other third
party right) of and direct control of and access to:
(a) all documents of title relating to its assets;
(b) all subsisting written agreements to which it is a
party;
(c) all records, systems, data and information held by it or
on its behalf which are recorded, maintained, stored or
otherwise wholly or partly dependent on any system
(including, without limitation, any electronic,
mechanical or photographic process whether computerised
or not) whether operated by the Company or not;
15.9 No substantial part of the Business is carried on under the
agreement or consent of a third party (save that of any governmental
or quasi governmental regulator) nor is there any agreement which
significantly restricts the fields in which the Company carries on
the Business.
15.10 There are not now outstanding any agreements or arrangements
(whether by way of guarantee, indemnity, warranty, representation or
otherwise) under which the Company is under a prospective or
contingent liability in respect of any disposal by the Company of
its assets or business or any substantial part thereof.
86
15.11 Offshore Insurance Brokerage Limited has ceased to trade (but is not
dormant), has no outstanding liabilities under any agreement or
arrangement, has no authorisations or licences which if allowed to
lapse would incur costs, and has no unsatisfied creditors, which
liabilities, creditors and costs together exceed (pound)10,000 in
aggregate (other than intra group transactions).
16 TRANSACTIONS SINCE THE ACCOUNTS DATE
16.1 Since the Accounts Date:
(a) except for intra-group transactions, the Company has not
entered into transactions or incurred liabilities other
than in the ordinary course of day-to-day trading
operations;
(b) the assets of the Company have not been depleted by any
unlawful act on the part of any person;
(c) there has been no materially adverse change in the
financial or trading position of the Company and the
Business has been carried on in the ordinary course and
in the same manner (including nature and scale) as
immediately before the Accounts Date;
(d) except in respect of intra-group transactions, no loan
or loan capital has been repaid by the Company in whole
or in part or has become liable to be so repaid;
(e) save for the ordinary business of an Annual General
Meeting, there has been no resolution of or consent by
the members or any class of members of the Company;
(f) the Company has paid its creditors within the time
limits agreed with such creditors;
(g) the Company has not offered price reductions or
discounts or allowances on services or provided them at
less than cost to an extent that may materially affect
its profitability; and
17 FINANCIAL MATTERS
17.1 Full details of all bank accounts maintained or used by CWG
(including, in each case, the name and address of the bank with whom
the account is kept and the number and nature of the account) and of
all direct debit or standing order or similar authorities applicable
to any of these accounts and statements showing the balance on each
account as at the close of business on a date not being more than
three business days prior to the date of this Agreement are attached
to the Disclosure Letter. Since the date of each statement no
payment out of any of the accounts has been made, except for routine
payments in the ordinary course of trading, and the present balances
are not substantially different from those shown in the statement.
17.2 Where any Group Company at the date of this Agreement and outside
the ordinary course of business has amounts outstanding, unpaid or
unperformed
87
represented by cheques, warrants, mandates or other payment
instructions (and for the purposes of this warranty a Group
Company's IBAs shall be disregarded), the amount so represented does
not exceed (pound)100,000 in aggregate.
17.3 In relation to the Security Interests outstanding at the date of
this Agreement (details of which are set out in the Disclosure
Letter) and in relation to all overdraft, loan and other financial
and leasing facilities available to the Company:
(a) full details thereof and true and correct copies of all
documents relating thereto are attached to the
Disclosure Letter;
(b) there has been no contravention of or non-compliance
with any provision of any such document;
(c) no steps for the enforcement of any encumbrances have
been taken or threatened;
(d) there has not been any alteration in the terms and
conditions of any of the said arrangements or
facilities, all of which are in full force and effect;
(e) nothing has been done or omitted to be done whereby the
continuance of the said arrangements and facilities in
full force and effect might be affected or prejudiced;
and
(f) none of the arrangements is dependent on the guarantee
or indemnity of, or on any security provided by, a third
party other than a Group Company.
17.4 The total amount borrowed by the Company:
(a) from its bankers does not exceed its overdraft
facilities; or
(b) from whatsoever source does not exceed any limitation on
borrowing contained in the Articles of Association or
any debenture or loan instrument or other deed or
document binding on it.
17.5 Save for the borrowings referred to in paragraphs 17.3 and 17.4 and
any intra-Group arrangements, the Company:
(a) does not have outstanding any loan capital;
(b) has not incurred or agreed to incur any borrowing which
it has not repaid or satisfied;
(c) has not lent or agreed to lend any money which has not
been repaid to it;
(d) does not own the benefit of any third party debt present
or future; and
(e) is not a party to or has any obligation under:
88
(i) any loan agreement, debenture, acceptance
credit facility, xxxx of exchange,
promissory note, finance lease, debt or
inventory financing, discounting or
factoring arrangement or sale and lease back
arrangement; or
(ii) any other arrangement the purpose of which
is to raise money or provide finance or
credit.
17.6 No event has occurred or been alleged which is or, with the passage
of time and/or the giving of any notice, certificate, declaration or
demand, would become an event of default under, or a breach of any
of, the terms of any loan capital, borrowing, debenture or financial
facility of the Company or would entitle any third party to call for
repayment prior to normal maturity.
17.7 The Company is neither a party to, nor has any liability (including,
without limitation, any prospective or contingent liability) under,
any guarantee, indemnity or other agreement to secure or support an
obligation of a third party.
17.8 Except for the Continuing Loans, there is no outstanding
indebtedness on any account whatsoever owing by the Company to any
of the Vendors other than ordinarily accrued emoluments or by any of
the Vendors to the Company.
17.9 None of the Vendors has given any guarantee or indemnity or created
any other like obligation or given comfort in support of the
Company, which remains outstanding.
17.10 The Company has not given any guarantee or indemnity or created any
other like obligation in respect of a Group Company or otherwise
which remains outstanding.
17.11 Having regard to the existing facilities available to it, the
Company has sufficient working capital for the purposes of
continuing to carry on its business in its present form and at its
present level of turnover and for the purpose of executing, carrying
out and fulfilling in accordance with their terms all orders,
projects and other contractual obligations which have been placed
with or undertaken by the Company.
17.12 The Company does not hold any security (including any guarantee or
indemnity) that is not valid and enforceable by the Company against
the grantor thereof in accordance with its terms.
17.13 Completion of this Agreement will not result in the creation,
crystallisation or enforcement of any Security Interest over any
asset of the Company.
17.14 The Disclosure Letter contains full details of each grant or subsidy
or other financial assistance received or receivable by the Company
from any governmental or quasi-governmental authority and the
Company has not done, or omitted to do, any act which could result
in all or part of any such assistance becoming repayable early or
being forfeited or withheld and no Vendor has any reason to expect
that Completion of this Agreement will give rise thereto.
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17.15 No loan has been made by the Company in breach of the Consumer
Credit Xxx 0000.
17.16 The time difference between the payment of claims by International
Accident Facilities Inc. and its recovery of claim reimbursements is
the sole reason for the overdrawn balance of its bank account.
17.17 C W Midwest Inc has no liability under any loan note arrangement.
17.18 The loan of(pound)171,000 from NatWest Bank plc to CWG has been
repaid in full in accordance with the terms of the facility and any
security given has been released.
17.19 The sum of US$387,000 due to be paid in 1999 in respect of the
Company's acquisition of certain of the shares in ISB previously
owned by Le Blanc xx Xxxxxxx has been paid in full.
18 EMPLOYEES
18.1 The Disclosure Letter contains the following information in relation
to each employee of the Company, namely:
(a) name;
(b) age (except in the case of employees of any Group
Company operating in the United States);
(c) emoluments (including any bonus or commission
arrangements and any non-cash benefits);
(d) date of commencement of employment or of any previous
employment with which such employment is continuous;
(e) where in excess of 6 months, the notice period required
to be given by the Company and the employee;
(f) whether or not a member of the Company's pension scheme;
and
(g) date of last increase in salary
and such information is complete and correct in all respects.
18.2 True, up-to-date and complete copies of all standard form contracts
of employment copies of employment contracts for certain senior
employees are contained in the Disclosure Letter together with
copies of all consultancy agreements currently in force to which the
Company is a party.
18.3 Since the Accounts Date and except for salary reviews in the
ordinary course of employment, no material change has been made in
the terms of employment by the Company of any employee and no such
change, and no negotiation or request for such a change, is due or
expected within 6 months from the date of this Agreement.
90
18.4 The Company has maintained adequate up to date records regarding the
service of each of its employees (including details of terms of
employment, payments of statutory or other sick pay, statutory or
other maternity pay, disciplinary and health and safety matters,
income tax and social security contributions and termination of
employment), copies of all underlying documentation relating to
schemes operated by the Company in connection with the matters
referred to in this paragraph 18.4 are attached to the Disclosure
Letter and the Company is not proposing to adopt any new scheme in
relation to any such matters.
18.5 Since the Accounts Date, no employee has given notice terminating
his contract of employment or is under notice of dismissal and no
amount due to or in respect of any employee or former employee is in
arrear and unpaid other than his salary for the month current at the
date of this Agreement and in respect of the reimbursement of
expenses properly incurred and authorised.
18.6 The Company is not involved in any dispute with its employees or any
of them and there are no present circumstances (including
Completion), which are likely to give, rise to any such dispute.
18.7 Within a period of one year preceding the date of this Agreement:
(a) the Company has not given notice of any redundancies to
the Secretary of State for Employment or started
consultations with any independent trade union or unions
under Part XI ERA and the Company has not failed to
comply with any obligation under such Part XI; and
(b) the Company has not been a party to any relevant
transfer as defined in the Transfer of Undertakings
(Protection of Employment) Regulations 1981 and the
Company has not failed to comply with any duty to inform
and consult any independent trade union.
18.8 Since the Accounts Date, no gratuitous payment has been made or
promised by the Company in connection with the actual or proposed
termination, breach, suspension or variation of any employment or
engagement of any present or former director, officer or employee of
or consultant to the Company; and there is no outstanding obligation
or ex gratia arrangement for the Company to pay any compensation to
any present or former director, officer, employee or consultant.
18.9 There is no existing, pending or threatened dispute between the
Company and any material number or category of its employees or any
trade union or other organisation formed for a similar purpose and
there are no circumstances (including Completion), which are likely
to give, rise to any such dispute. There is no collective bargaining
agreement or other arrangement (whether binding or not) between the
Company and any trade union or other body representing its
employees.
18.10 With the exception of PAYE and national insurance contributions in
respect of the payment period current at Completion the Company does
not have outstanding any undischarged liability to pay to any
governmental or regulatory
91
authority in any jurisdiction any contribution, taxation or other
levy arising in connection with the employment or engagement of
personnel by the Company.
18.11 The Company does not have and is not proposing to introduce any
share incentive scheme, share option scheme or profit sharing bonus
or other incentive scheme for any director, officer or employee.
18.12 There are no training schemes arrangements or proposals in existence
nor have there been any such schemes or arrangements at any material
time in the past in respect of which a levy may become payable by
the Company under the Industrial Training Xxx 0000.
18.13 So far as the Warrantors are aware neither this Agreement nor
Completion will or is likely to cause any director, officer or
senior employee to terminate his engagement or employment with the
Company.
19 CONTRACTS
19.1 So far as the Warrantors are aware, no circumstances exist which
constitute a ground on which any contract or other arrangement to
which the Company is a party could be avoided, repudiated,
rescinded, prematurely determined (whether as a result of this
Agreement, the sale of the Sale Shares or otherwise) or declared to
be invalid or which would give any other contracting party the right
to impose any obligation (whether to make payment on or otherwise)
on, the Company.
19.2 The Company has not received any notice of a claim in respect of the
matters referred to in warranty 19.1, above, nor has it received
notice indicating that such a claim is foreseeable.
19.3 The Company is not a party to any agreement for the supply by or to
the Company (whether as principal or as agent) of any goods or
services including (but not limited to) distributorship, agency,
manufacturing, licensing, supply or management agreements excluding
agreements entered into in the ordinary course of business or which
are likely to be discharged by performance within 3 months of the
date hereof.
19.4 So far as the Warrantors are aware no liability in respect of any
claim against the Company arising out of any error or omission on
the part of the Company in the supply of any service before
Completion will exceed in amount the limit of insurance cover in
force for the benefit of the Company against such a claim.
19.5 The Company is not a party to any material contract, obligation or
arrangement which:
(a) is of an unusual or abnormal nature, or outside the
ordinary course of trading or involving or which may
involve obligations on the Company calling for special
mention;
(b) is of a long term nature (that is, unlikely to have been
fully performed in accordance with its terms within 6
months after the date on which it was entered into or
undertaken); or
92
(c) is incapable of termination by the Company in accordance
with its terms on no more than 3 months' notice; or
(d) gives any party an option to acquire or dispose of any
asset or requires another person to do so; or
(e) is likely to result in a loss to the Company on
completion or performance; or
(f) cannot readily be fulfilled or performed by the Company
on time without undue or unusual expenditure of money,
effort or personnel; or
(g) involves payments by or to the Company by reference to
fluctuations in any index of retail prices, any other
index, the rate of exchange for any currency or the cost
or value of any raw material or commodity; or
(h) (or in relation to which) any relevant requirements of
section 319 CA 1985 have not been complied with; or
(i) involves or is likely to involve outstanding expenditure
by the Company of more than(pound)50,000; or
(j) involves or is likely to involve the supply of services
the aggregate sales value of which will represent in
excess of 5 per cent. of the turnover of the Company for
the preceding financial year; or
(k) is a contract for hire or rent, hire-purchase or
purchase by way of credit or instalment payment or for
maintenance of the Company's assets
and the Company has no offer, bid, tender or proposal outstanding
which by the acceptance or other act of some other person would give
rise to any such transaction.
19.6 There are no powers of attorney or other authorities (express or
implied) which are still outstanding or effective to or in favour of
any person to enter into any contract or commitment or to do
anything on behalf of the Company (other than on such authority of
directors or of employees as either is ostensible or is implied to
enter into routine contracts in the normal course of their duties).
19.7 The Company is not a party to any agreement or arrangement or under
any obligation under which it is or may become liable to make any
investment (as defined in section 1(1) of the Financial Services Act
1986) with, or to deposit any money with or to provide any loan or
financial accommodation or credit (other than normal trade credit)
to, any person or to subscribe, convert, acquire, dispose of or
underwrite any investment.
20 THE PROPERTIES AND OTHER INTERESTS IN LAND
20.1 ISB and each Group Company specified in schedule 6 are the
beneficial owners of the Properties set opposite their names which
are the only properties owned or occupied or in which ISB or any
Group Company has any right or interest.
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20.2 The title to each of the Properties is good and marketable and is
properly constituted by documents of title which are properly
stamped and are in the possession and under the control of the
Company.
20.3 All the documents relating to the value, marketability, use of and
title to the Properties shall (if required) be made available to the
Purchaser's Solicitors for inspection prior to Completion.
20.4 Each of the Properties are free from:
(a) any mortgage, charge, rent-charge, lien, encumbrance or
other third party right in the nature of security;
(b) any Land Charge or Local Land Charge.
20.5 Subject to paragraph 20.14(a), the Company has vacant possession of
each of the Properties vested in it and (subject as aforesaid) there
are no circumstances known to the Warrantors which would entitle or
require any landlord or any other person to exercise any powers of
entry or right to forfeiture or right to take possession or which
would otherwise restrict or terminate the continued sole and
exclusive possession or occupation of each of the Properties by the
Company.
20.6 No person is entitled to any option, right over, interest in, right
of pre-emption, first refusal, surrender or determination relating
to any of the Properties nor is any person in the course of
acquiring any of these.
20.7 Other than contained or referred to in the lease or tenancy
agreement under which any of the Properties are held, the Company is
not aware of any covenant, stipulation, restriction, easement, right
of way, exception, reservation, grant, condition, agreement or
declaration affecting any of the Properties or their use. There is
no material subsisting breach or alleged breach of any of the said
matters.
20.8 The Properties are not subject to the payment of any outgoings other
than business rates or water charges and the sums reserved by or
payable by virtue of the lease or tenancy agreement under which any
of the Properties are held.
20.9 The Company has paid all rent or licence fees and all other
outgoings which have become due in respect of each of the
Properties. The Company has in all material respects performed and
observed its obligations under all covenants (whether affecting the
freehold or leasehold titles), conditions, agreements, statutory
requirements, planning consents, byelaws, orders and regulations
affecting any of the Properties, its use and any business of the
Company there carried on. No notice of any breach of any such matter
has been received.
20.10 The actual use of each of the Properties so far as the Warrantors
are aware is permitted under the Town and Country Planning
legislation. No notices have been received of any existing
contravention of any of the provisions of the Town and Country
Planning legislation and so far as the Warrantors are aware there
are no outstanding enforcement notices, Stop Notices, enforcement
proceedings or appeals (whether against refusal, deemed or
otherwise, conditions or
94
enforcement) nor is any user stated to be personal nor is any
planning permission suspended or remains unimplemented in whole or
in part. No planning application has been submitted by or on behalf
of the Company which awaits determination.
20.11 The Company has received no notice of any outstanding orders or
notices affecting any of the Properties nor of any proposals of any
local or other authority (involving compulsory acquisition or
requisition or otherwise) or any other circumstances which may
result in any such order or notice being made or served or which may
otherwise adversely affect any of the Properties.
20.12 There are not in force or required to be in force any licences which
apply to any of the Properties or to the business carried on
therein.
20.13 The Company has not received notice of nor are the Warrantors aware
of any dispute relating to any of the Properties.
20.14 (a) Where any of the Properties are not occupied by the
Company, details of the present sub-tenants or other
occupiers of the relevant Properties (or an indication
that the relevant Property is vacant) are set out in
part B of schedule 6 and such sub-tenants or occupiers
occupy those parts of the Properties shown against their
names.
(b) Written particulars (including copies of all documents)
where requested of all sub-leases, sub-tenancies and
licences for occupation of any of the Properties or any
parts thereof and of all variations and proposed
variations thereof or derivative interests therein and
of the grant or proposed grant of any licences pursuant
to the provisions of any such documents have been
supplied to the Purchaser.
(c) There is no claim or dispute pending or expected, either
by or with the Company or by or with any such
sub-lessee, licensee or occupier.
20.15 The Company has not elected to waive the exemption from Value Added
Tax in relation to any supply made in relation to any of the
Properties.
20.16 Any written replies given by or on behalf of the Warrantors or
Company to enquiries raised by the Purchaser's solicitors in respect
of any of the Properties are true and accurate in all material
respects and not misleading.
20.17 No solicitors are instructed by or on behalf of the Company in
connection with any matter relating to any of the Properties except
for the Vendors' Solicitors in respect of this Agreement and the
Disclosure Letter.
20.18 Since the Accounts Date the Company has not acquired or disposed of
or agreed to acquire or dispose of the whole or any part of any land
or buildings or any interest therein, nor will it acquire or dispose
of the whole or any part of any
95
land or buildings or interest therein without the prior written
consent of the Purchaser.
20.19 The Company has not at any time entered into either the lease of or
a licence to assign any leasehold property as a guarantor of the
lessee's covenants contained in any such document. The Company has
not at any time assigned or otherwise disposed of any leasehold
property without receiving a full and legally effective indemnity in
respect of its liability under the lease pursuant to which that
property was held. No claim has been made against the Company in
respect of any leasehold property formerly held by it or in respect
of which it acted as a guarantor nor is any such claim anticipated.
21 ENVIRONMENTAL MATTERS
21.1 The Company complies and has at all times complied with all
Environmental Laws and Environmental Licences and has obtained and
maintained in full force and effect all Environmental Licences and
there are no facts or circumstances entitling any such Environmental
Licences to be revoked, suspended, amended, varied, withdrawn or not
renewed or which would prevent compliance with any Environmental
Licence which might have a material adverse effect on the use or
value of any of the Properties.
21.2 No claim, prosecution, demand or action relating to the Environment
or in respect of Environmental Law has been made or so far as the
Warrantors are aware, threatened against the Group, which might have
a material adverse effect on the use or value of any of the
Properties.
For the purposes of these warranties:
"ENVIRONMENT" means all or any of the following media; air
(including air within buildings or other structures; land (including
buildings and any other structures or erections in, on or under it
and any soil and anything below the surface of the land); water
(including sea, ground and surface water) and any living organism
supported by such media.
"ENVIRONMENTAL LAWS" include all or any law, common law, statute,
rule, regulation, treaty, directive, direction, decision of the
court, by-law, code of practice, circular, guidance note, order,
notice or demand of any governmental authority or agency or any
regulatory body or any other body whatsoever in any jurisdiction,
including the European Union, relating to the protection or
conservation of the Environment or the storage, generation or
disposal of waste and/or the business carried on by the Group.
"ENVIRONMENTAL LICENCE" means any permit, licence, authorisation,
consent or other approval required at any time by the Group and/or
in relation to the business carried on by the Group pursuant to
Environmental Laws.
22 PENSIONS AND RELATED BENEFITS
22.1 In this paragraph:
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"DISCLOSED ARRANGEMENTS" means the Pension Schemes, the US Employee
Benefit Plans and any other arrangements for providing Relevant
Benefits details of which are contained in the Disclosure Letter;
"FORMER SCHEME" means all occupational pension schemes (as defined
in section 1 of the Pension Schemes Act 1993) other than the Pension
Schemes in which any Relevant Employer has participated at any time
prior to Completion;
"RELEVANT BENEFITS" means pensions, allowances, lump sums,
gratuities, expense payments or other like benefits in respect of
retirement, death, termination of employment (whether or not
voluntary), ill-health, injury, disablement or medical or dental
treatment provided for or in respect of any Relevant Employee;
"RELEVANT EMPLOYEE" means any director or former director or
employee or former employee of the Company and/or the Subsidiaries;
"RELEVANT EMPLOYER means the Company and/or the Subsidiaries;
"PENSION SCHEMES" means the Xxxxxxx Xxxxxx Pension Scheme and the
Xxxxxxx Xxxxxx Executive Pension Scheme;
"US EMPLOYEE BENEFIT PLANS" means the "employee pension benefit
plans" referred to in Warranty 22.20.
22.2 Apart from the Disclosed Arrangements, the Relevant Employer is not
under any legal liability or voluntary or moral obligation to
provide any Relevant Benefits (whether on a funded or unfunded
basis) or to contribute to any scheme or arrangement providing
Relevant Benefits (including any personal pension scheme approved
under Chapter IV, Part XIV ICTA) nor has any proposal been announced
to pay any Relevant Benefits or establish or contribute to any such
scheme or arrangement.
22.3 True and complete copies have been supplied to the Purchaser of:
(a) all trust deeds, rules, notices and other documents
governing the Disclosed Arrangements and the
participation therein of the Relevant Employer;
(b) all announcements, members' booklets and other
explanatory literature of current effect relating to the
Disclosed Arrangements and any letters or other
documents relating to provisions for individual Relevant
Employees or groups of Relevant Employees;
(c) all policies, agreements and other arrangements of
current effect entered into in relation to the Disclosed
Arrangements with insurance companies, investment
managers, advisers or other persons;
(d) the latest actuarial valuation report in respect of the
Xxxxxxx Xxxxxx Pension Scheme and the trustees' report
and audited accounts for the Pension Schemes together
with any supplementary accounting advice relating to the
Pension Schemes and any supplementary actuarial advice
relating to the Xxxxxxx Xxxxxx Pension Scheme; and
97
(e) any contracting-out certificate and any undertakings in
relation to the Pension Schemes and any notification of
approval of the Pension Schemes by the Inland Revenue.
22.4 Full details in writing have been supplied to the Purchaser of all
discretionary practices in relation to the Disclosed Arrangements.
22.5 Full particulars in writing of the assets in which the Pension
Schemes are invested have been supplied to the Purchaser and none of
the resources of the Pension Schemes are invested in any loan or
other arrangement with any beneficiary or any employer-related
investment (as defined in section 40 of the Pensions Act 1995) or
are subject to any charge or encumbrance or are being used for the
purposes of stock lending or other arrangements whereby such
resources may be released without full payment being received
forthwith on behalf of the relevant Pension Scheme in respect of
them.
22.6 A list of the Relevant Employees who are covered by the Disclosed
Arrangements, together with all particulars of them necessary to
establish their entitlement to benefits thereunder, has been
supplied to the Purchaser.
22.7 The current rates of contributions payable in respect of the
Disclosed Arrangements by the Relevant Employer and, where
applicable, the Relevant Employees are as set out in the Disclosure
Letter and all such contributions up to and including the Completion
Date have been paid or will have been paid by the Completion Date.
22.8 All consultancy, legal and other fees, charges and expenses in
respect of the Disclosed Arrangements for which the Relevant
Employer is responsible have been paid or will have been paid by the
Completion Date and no services have been provided in relation to
the Disclosed Arrangements in respect of which an account or other
invoice has not been rendered which if rendered would be payable by
the Relevant Employer.
22.9 All death in service benefits (other than refunds of contributions)
payable under the Pension Schemes, and all benefits under the other
Disclosed Arrangements, are now and will up to and including the
Completion Date be fully insured under policies effected with
insurance companies as disclosed, all premiums due under such
policies have been paid or will have been paid by the Completion
Date; and there are no grounds on which any such policies may be
avoided.
22.10 The Xxxxxxx Xxxxxx Pension Scheme is a contracted-out scheme within
the meaning of section 7(3) of the Xxxxxxx Xxxxxxx Xxx 0000 and the
Relevant Employer holds or is named on a current contracting-out
certificate in relation to that Scheme and there are no
circumstances existing which would cause such contracting-out
certificate to be withdrawn or placed in jeopardy. The Xxxxxxx
Xxxxxx Executive Pension Scheme is not a contracted-out scheme.
22.11 There has been no breach of trust and no material actions, suits or
claims (other than routine claims for benefits) are pending or
threatened in respect of the Disclosed Arrangements in relation to
the Relevant Employees and there are no circumstances existing which
may give rise to any such actions, suits or claims.
98
22.12 No payment of any of the assets of the Pension Schemes has been made
to the Relevant Employer (or any other participating employer) or
will have been so made up to and including the Completion Date.
22.13 The Disclosed Arrangements have been administered in accordance with
their governing documents and all applicable legal requirements.
22.14 The Pension Schemes have been formally approved by the Board of
Inland Revenue and are treated by them as exempt approved schemes
under Chapter I, Part XIV ICTA and there are no circumstances
existing which would cause such approval to be withdrawn or placed
in jeopardy.
22.15 All records relating to the Disclosed Arrangements have been
properly maintained, all information provided for the purposes of
the latest actuarial valuation of the Xxxxxxx Xxxxxx Pension Scheme
was complete and accurate in all material respects and there has
been no material adverse change in the financial position of the
Xxxxxxx Xxxxxx Pension Scheme since the effective date of such
valuation.
22.16 The latest audited accounts for the Pension Schemes give a true and
fair view of the financial transactions of the Pension Schemes
during the relevant accounting period and of the disposition of its
net assets at the end of that period.
22.17 No Relevant Employer has any liability to make any payment to the
Pension Schemes or to any Former Scheme whether pursuant to section
144 of the Xxxxxxx Xxxxxxx Xxx 0000, sections 59, 60 or 75 of the
Pensions Xxx 0000.
22.18 The assets of the Pension Schemes have not been depleted by any
improper or unlawful act and:
(a) in respect of such assets as are held to provide money
purchase benefits or in respect of additional voluntary
contributions (other than those applied to secure
additional benefits by way of crediting the member
concerned with additional pensionable service), such
assets represent fully all such contributions paid by or
in respect of the relevant members together with all
income and gains accruing thereto; and
(b) in respect of such assets as are held to provide final
salary benefits, such assets are sufficient to provide
(on the basis adopted in the latest actuarial valuation
of the Xxxxxxx Xxxxxx Pension Scheme as at 1 January
1999) the benefits payable and prospectively payable to
and in respect of the members (including deferred and
pensioner members) up to and including the Completion
Date based on the pensionable service of members
completed or credited up to the Completion Date and
their pensionable earnings then applicable , but with
allowance being made in accordance with the said basis
for future increases in earnings due to inflation and
merit and increases in pensions, both in deferment and
while in course of payment.
22.19 The Xxxxxxx Xxxxxx Executive Pension Scheme provides only money
purchase benefits within the meaning of section 181(1) of the
Xxxxxxx Xxxxxxx Xxx 0000
99
and no assurance, promise or guarantee has been given to any
Relevant Employee of any particular level or amount of benefit
(other than death in service benefits) payable to or in respect of
him on retirement, death or leaving service.
22.20 US Employee Benefit Plans
(a) The Disclosure Letter contains a complete list of all
"employee pension benefit plans" as defined in Section
3(2) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA") (including Multiemployer
Plans) ("Pension Benefit Plans"), "welfare benefit
plans" as defined in Section 3(1) of ERISA ("Welfare
Plans"), or stock bonus, stock option, restricted stock,
stock appreciation right, stock purchase, bonus,
incentive, deferred compensation, severance, or vacation
plans, or any other employee benefit plan, program,
policy or arrangement maintained or contributed to by
the Company or any of its ERISA Affiliates or to which
the Company or any of its ERISA Affiliates, contributes
or is obligated to make payments thereunder or otherwise
may have any liability (including Multiemployer Plans)
(collectively, the "Employee Benefit Plans"). For
purposes of this Section, (a) the term "ERISA
Affiliates" means any person (as defined in ERISA
Section 3(9)) that is or has been a member of any group
of persons described in Code Sections 414(b), (c), (m)
or (o), and (b) the term "Multiemployer Plan" means a
multiemployer plan as defined as such in ERISA Section
3(37) to which contributions are or have been made by
the Company or any of its ERISA Affiliates, or as to
which the Company or any of its ERISA Affiliates may
have liability and that is covered by Title IV of ERISA.
(b) Each of the Employee Benefit Plans (and each related
trust, insurance contract or fund) complies in form and
in operation in all material respects with the
applicable requirements of ERISA, the Code and other
applicable laws.
(c) With respect to each of the Employee Benefit Plans,
true, correct and complete copies of the following
documents are annexed to the Disclosure Letter: (a) the
plan document and any related trust agreement, including
amendments thereto, (b) any current summary plan
descriptions and other material communications to
participants relating to the Employee Benefit Plans, (c)
the most recent Form 5500 Annual Report, if applicable,
and (d) any correspondence with the IRS, the Pension
Benefit Guaranty Corporation, the Department of Labor or
any other agency.
(d) All contributions to, and payments from, the Employee
Benefit Plans which are required to have been made by
the Company or any of its ERISA Affiliates with respect
to any period ending on or before the Completion Date,
in accordance with the Employee Benefit Plans, have been
timely made.
100
(e) Neither the Company nor any of its ERISA Affiliates
maintains or contributes to, nor has it ever maintained
or contributed to, any pension plan subject to Title IV
of ERISA, Code Section 412 or ERISA Section 302. Neither
the Company nor any of its ERISA Affiliates has incurred
any liability under Title IV of ERISA. Neither the
Company nor any of its ERISA Affiliates has any
liability (including any contingent liability under
ERISA Section 4204) with respect to any Multiemployer
Plan covering employees (or former employees) employed
in the United States. Neither the Company nor any of its
ERISA Affiliates has incurred any liability or taken any
action that could reasonably be expected to cause it to
incur any liability (i) on account of a partial or
complete withdrawal (within the meaning of ERISA
Sections 4205 and 4203, respectively) with respect to
any Multiemployer Plan or (ii) on account of unpaid
contributions to any such Multiemployer Plan.
(f) Neither the Company nor any of its ERISA Affiliates
maintains or ever has maintained, or contributes or ever
has contributed to, any Welfare Plan providing for
continuing benefits or coverage for any participant or
any beneficiary of a participant following termination
of employment, except as may be required under COBRA.
Each of Company's Welfare Plans which are "group health
plans", as described in Code Section 5000(b)(1), have
complied with the notice and continuation requirements
of Code Section 4980B or Part 6 of Subtitle B of Title I
of ERISA and the regulations thereunder.
(g) The Pension Benefit Plans intended to qualify under Code
Section 401 have been determined by the IRS to be so
qualified and no event has occurred and no condition
exists with respect to the form or operation of such
Pension Benefit Plans which would cause the loss of such
qualification or exemption or the imposition of any
material liability, penalty or tax under ERISA or the
Code.
(h) The consummation of the transactions contemplated by
this Agreement will not result in an increase in the
amount of compensation or benefits or accelerate the
vesting or timing of payment of any benefits or
compensation payable to or in respect of any employee of
the Company. The Company is not obligated to make any
payment or transfer, accelerate any payment or transfer,
or otherwise provide any benefit that would constitute
an "excess parachute payment" under Code Section 280G.
(i) Neither the Company nor any employee of the foregoing,
nor any trustee, administrator, other fiduciary or any
other "party in interest" or "disqualified person" with
respect to the Pension Benefit Plans or Welfare Plans,
has engaged in a "prohibited transaction" (as such term
is defined in Section 4975 of the Code or Section 406 of
ERISA) which could result in a tax or penalty on a
Company under Section 4975 of the Code or Section 502(i)
of ERISA ("Prohibited Transaction"), except any such
event which would not, individually or in the aggregate,
either impair such Company's ability to consummate the
transactions contemplated hereby or have a material
adverse effect.
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23 INSIDER MATTERS
23.1 There is not, nor during the six years prior to the date hereof has
there been, any agreement, arrangement, loan, quasi-loan or
undertaking to which the Company is a party and in which the Vendors
or any of them or any other person beneficially interested in the
share capital of the Company at that time or (except for service
agreements) any director of the Company or any person associated
with any of them within the meaning of section 435 Insolvency Act
1986 is or has been interested.
23.2 The Company has not been party to any transaction falling within
section 320 CA 1985 (substantial property transactions).
23.3 Since the Accounts Date, no member of the Group has transferred any
asset to any of the Vendors or to any person beneficially interested
in any part of the share capital of any member of the Group, or any
director of any member of the Group or any person associated with
any such director or Vendor (within the meaning of section 435
Insolvency Act 1986), except at market value.
24 INTELLECTUAL PROPERTY RIGHTS
24.1 Complete and accurate particulars of all Intellectual Property
Rights of which the Company is, or has applied to be, registered as
proprietor and of all material unregistered Intellectual Property
Rights owned by the Company are set out in the Disclosure Letter.
24.2 All Intellectual Property Rights used or required by the Company in
connection with the Business are in full force and effect and not
subject to any application for cancellation or amendment or licence
of right or compulsory licence and are vested in and beneficially
owned solely by the Company free from and clear of any restrictions
or encumbrances.
24.3 The Company has not infringed the Intellectual Property Rights of
any other person.
24.4 The Company has not granted and is not obliged to grant any licences
under any Intellectual Property Rights owned by it or licences to it
to furnish Know-how to any person.
24.5 Except as mentioned in the Disclosure Letter the Company has not
been granted any licence or right under or in respect of any
Intellectual Property Rights of a third party (other than computer
software licences) and the Company has not breached the terms of any
such licence to which it is a party and all such licences remain in
force and effect and neither the Company nor the Warrantors are
aware of any reason why any of them should be suspended or
terminated, and has not manufactured, sold, supplied or developed
anything which is the subject of any such Intellectual Property
Rights, whether presently existing or (to the knowledge of the
Company) applied for and by carrying on business in the ordinary
course the Company is not and will not become liable to pay any
royalty or like fee.
102
24.6 Since the Accounts Date, no disclosure has been made to any person
other than the Purchaser of any of the Know-how and the Confidential
Information except properly and in the ordinary course of business
and on the footing that such disclosure is to be treated as being of
a confidential nature.
24.7 There has occurred no act, omission or event which would entitle any
authority or person to cancel, forfeit or modify any Intellectual
Property Rights owned or used by the Company and there is no
litigation or other proceedings (whether legal or administrative)
pending or threatened involving any of the Intellectual Property
Rights or any circumstance likely to give rise to any such
proceeding and to the best of the information, knowledge and belief
of the Warrantors no person has made any claim adverse to the
continuing enjoyment by the Company of the Intellectual Property
Rights.
24.8 Since the Accounts Date the Company has not sold or otherwise
disposed of any Intellectual Property Rights owned or used by the
Company.
24.9 There exists no actual or threatened infringement (including misuse
of confidential information) or any event likely to constitute an
infringement or breach by any third party of any of the Intellectual
Property Rights held or used by the Company.
24.10 The Company does not use or otherwise carry on its business under
any name other than its corporate name and its letters and order
forms comply with all applicable legislation.
24.11 All application, renewal and other official statutory and regulatory
fees and all professional advisers' fees rendered to and received by
the Company prior to the date hereof relating to the administration
of the registered Intellectual Property Rights owned by the Company
or for the protection or enforcement thereof have been duly paid and
all steps have been taken for their maintenance and protection.
24.12 All inventions made by any employees of the Company and used or
enjoyed by the Company were made in the course of the normal duties
of the employee concerned and no claim for compensation under
section 40 Patents Act 1977 or otherwise has been made against the
Company nor to the best of the knowledge information and belief of
the Warrantors is any such claim likely to be made.
24.13 The Intellectual Property Rights owned by or licensed to the Company
are all the Intellectual Property Rights necessary to operate the
Business after Completion in the same manner as currently operated.
24.14 All necessary back-up systems are utilised to ensure that in the
event of any fault in any computer system used by the Company, no
more than one day's data might be lost and no such faults have
occurred in the last 12 months.
24.15 The Company has complied in all material respects with the
provisions of the Data Protection Act 1984 and no order has been
threatened against the Company for erasure of personal data under
section 24(3) Data Protection Xxx 0000.
103
24.16 All Information Technology used by the Company has functioned
throughout the last 12 months without any material problems and in
accordance with its specifications and are sufficient for the
requirements for the Business as currently carried on and where any
services in relation to Information Technology are supplied by any
third party such services have been supplied in a timely and
satisfactory manner in accordance with the relevant service
agreement.
24.17 Summary details of the Information Technology used by the Company
have been disclosed and all contracts, licences, leases, maintenance
and support agreements and disaster recovery agreements in respect
of such Information Technology have been disclosed and all such
agreements are in full force and effect and the Company has not
breached the terms of any such agreement and there is no reason why
any of them should be suspended or terminated.
24.18 All computer hardware used in the Business is owned by or under the
control of the Company and is not wholly or partly dependent on any
facilities that are not under the ownership or control of the Group.
24.19 The Company operates physical and environmental security procedures
and commercially available anti-virus software in line with those
procedures to detect so far as possible and deal with any infections
or contamination.
24.20 Save as disclosed in the Disclosure Letter and so far as the
Warrantors are aware each item of equipment and Information
Technology used by the Company in the course of its business
including (without limit) each item of equipment and Information
Technology under the control of a third party is Millennium
Compliant.
For the purposes of these warranties, "Millennium Compliant" shall
have the meaning given to it in BSI-DISCPD 2000-1.
24.21 In relation to each item of equipment or Information Technology
disclosed as not being Millennium Compliant so far as the Warrantors
are aware the Disclosure Letter contains details of all remedial
steps being taken to ensure that such item of equipment or
Information Technology becomes Millennium Compliant together with
the best available costings as to the cost of all such remedial
steps.
24.22 Each Group Company has discharged its responsibilities and
obligations to Lloyd's in respect of Millennium Compliance.
25 LITIGATION
25.1 Neither the Company nor any person for whose acts the Company may be
vicariously liable is engaged in any capacity in any litigation,
arbitration, prosecution or other legal proceedings or in any
proceedings or hearings before any statutory or Governmental body,
department, board or agency; no such matters are pending or
threatened; and the Warrantors are not aware of any circumstances
which are likely to give rise to any such matter.
104
25.2 There is no outstanding judgment, order, decree, arbitral award or
decision of any court, tribunal, arbitrator or governmental agency
against the Company or any person for whose acts the Company may be
vicariously liable.
25.3 The Company is not a party to any subsisting undertaking given to
any court or third party arising out of any proceedings of the kind
described in paragraph 25.1.
26 INSOLVENCY
26.1 No order has been made and no resolution has been passed for the
winding up of the Company or for a provisional liquidator to be
appointed in respect of the Company and no petition has been
presented and no meeting has been convened for the purpose of
winding up the Company.
26.2 No administration order has been made and no petition for such an
order has been presented in respect of the Company.
26.3 No receiver (which expression shall include an administrative
receiver) has been appointed in respect of the Company or in respect
of all or any part of its assets.
26.4 No voluntary arrangement has been proposed under section 1
Insolvency Xxx 0000 in respect of the Company.
26.5 The Company is not insolvent or unable to pay its debts within the
meaning of section 123 Insolvency Act 1986 and has not stopped
paying its debts as they fall due.
26.6 No distress, execution or other process has been levied or
threatened in respect of any asset of the Company.
26.7 No composition in satisfaction of the debts of the Company or scheme
of arrangement of its affairs or compromise or arrangement between
it and its creditors and/or members or any class of its creditors
and/or members has been proposed, sanctioned or approved.
26.8 No event analogous to any of the circumstances mentioned in any of
the foregoing sub-paragraphs of this paragraph 26 has occurred in
relation to the Company outside England.
26.9 No guarantee, loan capital, borrowed money or interest is overdue
for payment and no other obligation or indebtedness is outstanding
which is substantially overdue for performance or payment.
26.10 No circumstances have arisen which are likely to result in:
(a) a transaction to which the Company is a party being set
aside; or
(b) a third party claim involving any asset owned or used by
the Company being made under section 238 or 339
(Transactions at an undervalue) or sections 239 or 340
(Preferences) Insolvency Xxx 0000.
105
27 COMPETITION/EC MATTERS
27.1 The Company is not, and has not been party to, or concerned in any
agreement, arrangement, understanding or concerted practice, or any
other conduct or practice (unilateral or otherwise) which:
(a) has been or should have been or is required to be
furnished to the Director General of Fair Trading
pursuant to the Restrictive Trade Practices Xxx 0000
("xxx XXXX 0000"); or
(b) constitutes a breach of any relevant undertaking, order,
direction, assurance or other measure taken under the
Fair Trading Xxx 0000, the RTPA 1976, the Competition
Xxx 0000; or
(c) may be prohibited by the Competition Xxx 0000 when it is
effective; or
(d) infringes Article 81 or 82 of the EC Treaty (using the
Article numbers of the EC Treaty applicable since the
Treaty of Amsterdam came into force on 1 May 1999) or
any similar provisions of the ECSC, Euratom, or EEA
Treaties, or any other competition rule of the European
Community including, without prejudice to the generality
of the foregoing, any rule relating to state aid, public
procurement, or anti-dumping; or
(e) infringes any competition, anti-trust or equivalent
legislation of any other jurisdiction; or
(f) constitutes a breach of any term or condition of any
licence, authorisation, appointment, code or similar
instrument applicable to the Company and the Business.
27.2 The Company is not subject to any prohibition, order, direction,
condition, undertaking, assurance or similar measure or obligation
imposed by or under any of the laws referred to in this paragraph
27.
27.3 The Company is not, and has not been subject to any investigation,
request for information, notice or other communication (whether
formal or informal, and whether or not in writing) by any court,
governmental or regulatory authority pursuant to any of the laws
referred to in this paragraph 27.
27.4 The Company has no reason to believe that any such action as is
mentioned in this paragraph 27 will be taken against it in relation
to any of its current activities.
28 MISCELLANEOUS
28.1 No Vendor has any interest in any other company or business which
has a close trading relationship with or is in competition with the
Company.
28.2 All information disclosed in the Disclosure Letter (including any of
its attachments) and all other written information which has been
given by the Warrantors or any of the officials or professional or
financial advisers of the Company to any of the Directors, officials
or professional advisers of the
106
Purchaser in the course of the negotiations leading to this
Agreement which are included in the Disclosure Letter was when given
and remains and will at Completion be true and accurate in all
material respects and is not misleading because of any omission or
ambiguity or for any other reason.
28.3 No-one is entitled to receive from the Company any finder's fee,
brokerage or commission or other benefit in connection with the sale
of the Sale Shares.
107
Part B - Taxation
For the purposes of this Part B of schedule 8, and in respect of any Group
Company which is resident for tax purposes outside the United Kingdom,
references to the provisions of ICTA 1988, TCGA 1992 and any other United
Kingdom statutory provision, shall be construed as references to those
provisions of any relevant statute or other legislation applicable in the
jurisdiction in which such Group Company is so resident and which most closely
conform with the provisions of ICTA 1988, TCGA 1992 or such other United Kingdom
statutory reference referred to herein.
1.1 General
(a) All returns and computations which ought to have been
made by or in respect of the Company for any Taxation
purposes have been duly made; all such returns,
computations and any other notices, accounts and
information supplied to any Taxation Authority are
up-to-date, correct and were made on a proper basis;
none of such returns, computations, notices, accounts or
information is disputed in any respect by the Taxation
Authority concerned and there is no fact known to the
Warrantors which might give rise to any such dispute or
to any liability to Taxation not provided for in the
Accounts.
(b) All Taxation for which the Company is liable, the due
date for payment of which is on or before Completion,
has been or will be paid on or before Completion, and
the Company has not within the three consecutive years
commencing prior to the date hereof paid or become
liable to pay any penalty or interest charged by virtue
of any provisions relating to Taxation.
(c) No payment has been made by the Company which will not
be deductible for corporation tax purposes in computing
its income profits or otherwise in computing the
corporation tax payable by it.
(d) The provisions included in the Accounts are sufficient
to cover all Taxation in respect of all Accounting
Periods for which the Company was then or might at any
time thereafter become or have become liable including
(without limitation) Taxation:
(i) on or in respect of or by reference to the
profits, gains or income earned or accrued
or deemed for Taxation purposes to be earned
or accrued for any period ended on or before
the Accounts Date; or
(ii) in respect of distributions made, interest
or charges on income paid on or before the
Accounts Date.
108
(e) (i) The Company is a close company (as defined
in section 414 ICTA 1988);
(ii) no amount has been treated under section 418
ICTA 1988 as a distribution of the Company
nor has the Company incurred any expense to
which section 418 ICTA 1988 could apply;
(iii) the Company has not made any loan or advance
to which section 419 ICTA 1988 has been or
could be applied (including, without
limitation by virtue of the application of
section 419(5) ICTA 1988).
(f) Full disclosure has been made in the Disclosure Letter
of any material difference between the accounting and
the Taxation treatment of any item in the Accounts.
(g) Full disclosure has been made in the Disclosure Letter
of all matters relating to Taxation in respect of which
the Company has, or will at Completion have, an
outstanding entitlement under any statute relating to
Taxation to make:
(i) any claim, disclaimer, or election for
relief from Taxation;
(ii) any election for an alternative basis or
method of Taxation;
(iii) any appeal against any assessment to
Taxation; or
(iv) any application for postponement of
Taxation,
where the making of such claim, disclaimer or election,
appeal or application was assumed in the preparation of
the Accounts.
(h) The amount of Taxation chargeable on the Company during
any Accounting Period has not, to any material extent,
depended on any concession, agreement or other formal or
informal arrangement with any Taxation Authority.
(i) During the three years before the date hereof:
(i) there has been no major change in the nature
or conduct of a trade or business carried on
by the Company;
(ii) the scale of activities of any trade carried
on by the Company has not been small or
negligible within the meaning of sections
245 or 768 ICTA 1988.
(j) The Company is not liable for any Taxation owed by any
other company which has been sold out of the same group
of companies as the Company or was controlled by the
Company for any Taxation purposes in respect of
Accounting Periods beginning before or after such sale.
109
(k) The Company has duly deducted all amounts from any
payments from which Tax falls to be deducted at source
and the Company has duly paid or accounted for such
amounts to the relevant Taxation Authority.
(l) The Company has not been concerned in any transaction
other than the transactions contemplated by this
Agreement in respect of which provision is made in any
statute relating to Taxation for a clearance to be
obtained from any Taxation Authority in relation to such
transaction except where all applicable clearances
(based on full disclosure of all material facts and
circumstances) have been obtained.
(m) The Company has no unrelieved surplus ACT (as such term
is defined for the purposes of the Corporation Tax
(Treatment of Unrelieved Surplus Advance Corporation
Tax) Regulations 1998) and the Company is not a member
of a group which has an amount of unrelieved surplus
ACT.
(n) The Company is a large company for the purposes of the
Corporation Tax (Instalment Payment) Regulations 1998
(the "Regulations") and the Company is not part of any
arrangement entered into with any Taxation Authority
pursuant to section 36 of the Finance Xxx 0000.
(o) Insofar as the Warrantors are aware and based on the
best estimate, at the time the payment is made, of the
forecast profits for the year ended 31st December 1999,
the instalments of corporation tax paid by the Company
on 14th July 1999 and 14th October 1999 in respect of
the accounting period of the Company ended 31st December
1999 have been paid in accordance with regulation 5 of
the Regulations and such instalments represent, in
aggregate, thirty per cent (30%) of the total liability
of the Company for that accounting period (as referred
to in regulation 2(3) of the Regulations) and so far as
the Warrantors are aware there is no matter,
circumstance, transaction of other event in each such
case arising on or before Completion which could require
an adjustment to the level of the total liability of the
Company for such accounting period (defined as
aforesaid) after Completion.
(p) The Company has not been involved in any transaction
which has given or may give rise to a liability to
Taxation on the Company (or would have given or might
give rise to such a liability but for the availability
of any Relief) other than Taxation in respect of normal
trading income or receipts of such company arising from
transactions entered into by it in the ordinary course
of business.
1.2 Post-Accounts Date Events
(a) Since the Accounts Date:
(i) save as provided in the Accounts, no
dividend has been declared or paid on, and
no distribution of capital made in respect
of, any share capital and no loan or loan
capital has been repaid in whole or in part;
110
(ii) no expenditure incurred (including rents,
interest, annual payments or any other sums
paid or for which the Company is liable to
pay) will be disallowed as a deduction,
debit or a charge on income in computing
profits for the purposes of corporation tax;
(iii) no event has occurred which will result in
the Company becoming liable to pay or bear
any Taxation liability directly or primarily
chargeable against or attributable to
another person, firm or company;
(iv) no Accounting Period of the Company has
ended as referred to in section 12(3) ICTA
1988;
(v) no disposal has taken place or other event
occurred which will or may have the effect
of crystallising any liability to Taxation
which should have been included in the
provision for deferred taxation made in the
Accounts if such disposal or other event had
been planned or predicted at the Accounts
Date.
1.3 Capital Allowances
Full disclosure has been made to the Purchaser of all capital
expenditure qualifying for capital allowances and all balancing
adjustments pursuant to the CAA 1990 and Chapter I Part XIII ICTA
1988 in respect of any Accounting Period of the Company.
1.4 Distributions
Save as provided for in the Accounts no distribution (within the
meaning of sections 209 and 210 ICTA 1988) has been made by the
Company during any Accounting Period.
1.5 Groups
(a) The Disclosure Letter contains full details of all
surrenders, transfers, claims and agreements for
surrenders, transfers or claims for any amounts by way
of group relief under the provisions of sections 402 to
413 ICTA 1988 or any amounts of advance corporation tax
under the provisions of section 240 ICTA 1988 together
with details of all payments for group relief within the
meaning of section 402(6) ICTA 1988 and of all payments
in respect of surrenders of amounts of advance
corporation tax within the meaning of section 240(8)
ICTA 1988 in each case made or received or agreed to be
made or received, in respect of any Accounting Period
ended within three years prior to the Accounts Date.
(b) The Disclosure Letter contains particulars of all
elections (if any) made by the Company under section 247
ICTA 1988 and the Company has not paid any dividend
without paying advance corporation tax or made any
payment without deduction of income tax in the
circumstances specified
111
in section 247(6) ICTA 1988. In respect of each such
election the conditions of section 247 ICTA 1988 have at
all times been satisfied.
1.6 VAT
(a) The Company is a registered and taxable person for the
purposes of the Value Added Tax Xxx 0000 ("VATA 1994")
and has complied in all material respects with VATA 1994
and any statutory modification or re-enactment thereof
and all orders, provisions, directions or other
conditions made or imposed thereunder or under any other
law relating to VAT.
(b) The Company is not a member of a group for VAT purposes.
(c) The Company has not made and does not make exempt
supplies for VAT purposes (except such exempt
transactions as may be disregarded in calculating the
amount of input tax for which the Company may claim a
credit or repayment under section 24 or section 25 VATA
1994).
(d) The Company has made no election pursuant to paragraph 2
Schedule 10 VATA 1994 in respect of the Properties.
(e) No asset of the Company is a capital item the input tax
on which may be subject to adjustment in accordance with
the provisions of Part XV of the Value Added Tax
Regulations 1995.
(f) No defaults have been suffered by the Company under the
default surcharge provisions of section 59 VATA 1994.
(g) No circumstances exist whereby the Company is or might
become liable in respect of any misdeclaration by virtue
of sections 63 or 64 VATA 1994.
(h) The provisions of Schedule 9A VATA 1994 could not be
applied by any Taxation Authority in respect of any
transaction undertaken by the Company prior to
Completion.
(i) The Disclosure Letter contains full details of any
partial exemption special method agreed with any
Taxation Authority pursuant to Part XIV of the Value
Added Tax Regulations 1995.
(j) No supplies have been made to the Company to which the
provisions of section 8 VATA 1994 could be applied.
1.7 Stamp duty
All documents in the possession of the Company or to the production
of which the Company is entitled which are necessary to establish
title to any asset and which attract stamp or transfer duty in the
United Kingdom or elsewhere have been duly stamped.
112
1.8 Disputes
No Taxation Authority has in the last three years carried out or is
at present conducting any review, audit or investigation into the
business or affairs of the Company (or any aspect thereof) and the
Warrantors know of no reason why any such review, audit or
investigation should be initiated.
1.9 Loan relationships
(a) There are no circumstances which could cause any
Taxation Authority to deny relief for interest paid by,
or accrued in the Accounts of the Company and no such
relief has been denied in fact.
(b) All credits and debits brought into account by the
Company in connection with any loan relationship to
which the Company is or was a party for the purpose of
computing any provision for tax made in the Accounts
were calculated in accordance with an authorised
accruals basis of accounting.
1.10 Capital Gains
(a) The Company has sufficient records to determine the
Taxation consequences which would arise on any disposal
or on the realisation of any asset owned at the Accounts
Date or acquired since that date but before Completion.
(b) Disregarding any relief or allowance (including
indexation relief) available to the Company (other than
amounts allowable under section 38 TCGA 1992) no
chargeable gain or profit would arise if any asset of
the Company were to be realised for a consideration
equal to the book value thereof as shown or included in
the Accounts.
(c) All chargeable assets of the Company were acquired at
market value at the time of acquisition and there are no
circumstances giving rise or which may give rise to
liability or loss under or pursuant to any of sections
17, 30, 139, 140, 176, 177, 178 and 179 TCGA 1992.
1.11 International
(a) The Company is not liable for any Taxation as the agent
of any other person or business not resident in its
jurisdiction and does not constitute a permanent
establishment of any other person, business or
enterprise for any Taxation purpose.
(b) The Company is and has at all times been resident in the
United Kingdom for Tax purposes and is not and has not
been treated as resident or liable for Taxation in any
other jurisdiction for any Taxation purposes (including
for the purposes of any double taxation agreement).
(c) The provisions of Schedule 28AA could not be applied to
any transaction undertaken by the Company prior to
Completion.
113
(d) The Company has not received notice of any direction
made by the Inland Revenue under section 747 ICTA 1988
and no circumstances exist which would entitle any
Taxation Authority to make such or a direction or
require any apportionment to the Company of any profits
of a controlled foreign company pursuant to section 752
ICTA 1988.
(e) The Company is not, nor could it be treated as thinly
capitalised for any tax purpose. There are no
circumstances which could cause any Taxation Authority
to deny relief for interest paid by the Company, and no
such relief has been denied in fact.
(f) The provisions in the Management Accounts are sufficient
to cover all Texas state premium tax on business written
prior to Completion by International Accident
Facilities, Inc. and International Accident Facilities
of Texas, Inc.
1.12 Insurance Premium Tax ("IPT")
If the Company is liable to be registered in respect of IPT, it is
so registered and has complied in all material respects with the
provisions contained in Part III and Schedule 7 Finance Xxx 0000 and
any statutory modifications or re-enactment thereof and all
regulations, orders, provisions, directions or other conditions made
or imposed thereunder or under any other law relating to IPT.
1.13 PAYE
(a) The Company has properly operated the PAYE system and
has deducted tax as required by law from all payments to
or treated as made to employees of the Company and duly
accounted to the Inland Revenue for all tax so deducted
and all returns required pursuant to section 203 ICTA
1988 and regulations made thereunder have been made and
are accurate and complete in all respects.
(b) The Disclosure Letter contains full details of all
dispensations obtained by the Company and all details of
any visit from the Audit Office of the Inland Revenue
within the period of six years prior to Completion
including full details of any settlement made pursuant
thereto.
(c) Any payment made to or for the benefit or indirect
benefit of any person who is or might be regarded by any
Taxation Authority as an employee of the Company is made
to such person direct and is not made to any company or
other entity associated with that person.
114
SCHEDULE 6
THE PROPERTIES
Part A - English Properties
OWNING GROUP PROPERTY DESCRIPTION PARTIES TO LEASE DATE OF LEASE
COMPANY
1. The Company Premises on basement, lower (1) Special Risks Services 21 November 1996
ground, ground and first Xxxxxxx
xxxxx, Xxxxxxx Xxxxx, 0 (0) Xxxxxxx Xxxxxx Group plc
America Square, London EC3
2. The Company Premises on second floor and (1) London Market Claims 21 November 1996
basement, America House, 2 Services Limited
America Square, London EC3 (2) Xxxxxxx Xxxxxx Group plc
3. The Company Premises on fifth floor, (1) Trafalgar House Development 31 March 1994
America House, 0 Xxxxxxx Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxxx XX0 (2) Xxxxxxx Xxxxxx Group plc
4. The Company Premises on fifth floor and (1) QBE Re-Insurance (UK) 17 July 1997
basement storage space, Limited
Xxxxxxx Xxxxx, 0 Xxxxxxx (0) Xxxxxxx Xxxxxx Group plc
Square, London EC3
5. The Company First floor (rear right), 6 (1) Commercial Union Assurance 20 November 0000
Xxxxxx Xxxxxx, Xxxxxx XX0 Company plc
(2) Xxxxxxx Xxxxxxx &
Company Limited
6. The Company Ground floor (centre left), 6 (1) Commercial Union Assurance 1 April 0000
Xxxxxx Xxxxxx, Xxxxxx XX0 Company plc
(2) Xxxxxxx Xxxxxx Group plc
Part B - Sub-Let Properties
OCCUPYING PROPERTY DESCRIPTION PARTIES TO LEASE DATE OF LEASE
COMPANY
7. Xxxxxxxx Premises on first floor (rear (1) Xxxxxxx Xxxxxx Group plc 30th April 1996
XxXxxxxxx right) 0 Xxxxxx Xxxxxx (2) Xxxxxxxx XxXxxxxxx
Limited London EC3 Limited
115
Part C - Non-UK Properties
----- --------------------------- ----------------------------------- -------------------------------------------- --------------
OWNING GROUP COMPANY PROPERTY DESCRIPTION PARTIES TO LEASE DATE OF LEASE
----- --------------------------- ----------------------------------- -------------------------------------------- --------------
8. International Accident 815 Brazos (1) 815 Brazos Inc. (2) International 6 February
Facilities Inc. Austin, Texas Accident Facilities Inc. 1997
----- --------------------------- ----------------------------------- -------------------------------------------- --------------
9. International Accident Suite 170 Atrium on Elmbrook, (1) Spire Properties Inc.
Facilities Inc. 0000 Xxxxxxxx, Xxxxxx, Xxxxx (2) International Accident Facilities Inc. 1 May 1997
----- --------------------------- ----------------------------------- -------------------------------------------- --------------
10. International Claims Suite 307 Cherry Creek Business (1) Xxxxx X Xxxxx (2) International Claims 20 November
Administrators Inc. Park 0000 X. Xxxx, Xxxxxxx, Kansas Administrators Inc. 1998
----- --------------------------- ----------------------------------- -------------------------------------------- --------------
11. Xxxxxxxxxxxxx Xxxxxxxx Xxxxx 000, 0xx Xxxxx, 0 Xxxxx (1) Xxxxxx X Xxxxxx Properties Ltd. December 1997
Facilities Inc. Street, Boston, Massachusetts (2) International Accident Facilities Inc.
----- --------------------------- ----------------------------------- -------------------------------------------- --------------
12. Xxxxxxxxxxxxx Xxxxxxxx Xxxxx 000, 0xx Xxxxx, 0 Xxxxx (1) Xxxxxx X Xxxxxx Properties Ltd 2 December
Facilities Inc. Street, Boston, Massachusetts (2) International Accident Facilities Inc. 1998
----- --------------------------- ----------------------------------- -------------------------------------------- --------------
13. C W Midwest Inc. 0000 Xxxxxxxx Xxxxxx, (1) Xxx Insurance Group, Inc. 1 June 0000
Xxxxxxxxxxxx, Xxxxxxx (2) C W Midwest Inc.
----- --------------------------- ----------------------------------- -------------------------------------------- --------------
14. Xxxxxxx Xxxxxx Insurance Xxxxx 000, 0xx Xxxxx, 000 (1) R REEF USA Fund-111 27 September
Services Inc. Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, (0) Xxxxxxx Xxxxxx Insurance Services Inc. 0000
Xxxxxxxxxx 00000
----- --------------------------- ----------------------------------- -------------------------------------------- --------------
15. Mansions of Austrialia Pty Rooms on 5th Floor, 9 Barrack (1) Darisha Holdings Pty Limited 9 July 0000
Xxxxxxx Xxxxxx, Xxxxxx (2) Mansions of Australia Pty Limited
----- -------------------------------------------------------------- -------------------------------------------- ---------------
116
----- --------------------------- ----------------------------------- -------------------------------------------- --------------
OWNING GROUP COMPANY PROPERTY DESCRIPTION PARTIES TO LEASE DATE OF LEASE
----- --------------------------- ----------------------------------- -------------------------------------------- --------------
16. CW MidWest Inc. (trading Office 309, Applewood Tech (1) Corporate Office Images Ltd 4 August 1998
as Xxx Insurance Group) Center, 0000 Xxxxxxxxxx Xxxxxx, (2) Xxx Insurance Group (renewed 13
Golden, Colorado July 1999)
----- --------------------------- ----------------------------------- -------------------------------------------- --------------
17. International Space Premises on 9th Floor of 1300 (1) Xxxxxxxxxxxxx Properties, Inc. xiv 24 June 1997
Brokers, Inc. (Occupier) Xxxxxx Boulevard, Arlington, (2) International Space Brokers, Inc.
Virginia
----- --------------------------- ----------------------------------- -------------------------------------------- --------------
117
SCHEDULE 7
DIRECTORS AND EMPLOYEES
Part A - Additional Directors
X. Xxxxx
X. Xxxxx
M. Lesser
X. Xxxxx
Part B - Persons to receive Service Agreements
X. Xxxxxx
J. Howes
M. Bernardes
R. Mahoney
118
SCHEDULE 8
PROVISIONS FOR THE PROTECTION OF THE WARRANTORS
1 REMEDIES
1.1 Where any matter or default giving rise to a breach of any Warranty
is capable of remedy, the breach shall not entitle the Purchaser to
damages or other compensation unless written notice of the breach is
given to any of the Warrantors and the matter or default is not
remedied to the reasonable satisfaction of the Purchaser within 14
days after the date on which such notice is served.
2 EXCLUSION OF CERTAIN CLAIMS
2.1 No claim shall be made by the Purchaser against the Warrantors and
the Warrantors shall have no liability to the Purchaser under this
Agreement (including the Warranties) or the Taxation Deed (to the
extent specified in this paragraph 2. 1) or otherwise:
(a) in respect of any warranty, representation, indemnity,
covenant, undertaking or otherwise arising out of or in
connection with the sale of the Sale Shares except where
it is expressly contained in this Agreement or the
Taxation Deed; or
(b) in respect of any matter or thing done in the execution
and performance of this Agreement or solely by reason or
in direct consequence of the execution and performance
of this Agreement; or
(c) save where the claim arises under the Taxation Deed, in
respect of any matter which is fully and fairly
disclosed in the Disclosure Letter (and for this purpose
"fully and fairly disclosed" means disclosed in such
manner and in such detail as to enable a reasonable
purchaser to make an informed and accurate assessment of
the matter concerned);
(d) (except where specifically warranted) for:
(i) any inaccuracies in the Management Accounts;
or
(ii) any opinion which may have been expressed or
any forecast which may have been made by any
person in any of such correspondence,
documents or accounts; or
(e) save where the claim arises under the Taxation Deed, in
respect of any liability if that liability would not
have arisen or occurred but for an act, omission or
transaction done, made or carried out by any one or more
of the Purchaser or any Group Company or any of their
respective directors, employees or agents:
(i) before Completion on the decision or at the
request of the Purchaser; or
119
(ii) after Completion otherwise than as required
by law or pursuant to a legally binding
commitment of that Group Company created on
or before Completion (save a commitment
undertaken at the request or with the
consent of the Purchaser) and otherwise than
in the ordinary course of business as
carried on immediately before Completion; or
(f) save where the claim arises under the Taxation Deed, in
respect of any matter resulting from a change in the
accounting or taxation policies or practices of the
Purchaser or any Group Company (including the method of
submitting taxation returns) introduced or having effect
after Completion;
(g) in respect of any liability or other matter or thing to
the extent that it occurs as a result of any legislation
not in force at the date hereof or any change in law or
administrative practice having retrospective effect
which comes into force after the date hereof or any
increase hereafter in the rates of taxation in force at
the date hereof;
(h) in respect of a liability which is contingent only
unless and until such contingent liability becomes an
actual liability and is due and payable, but this
paragraph 2.1(h) shall not operate to avoid a claim made
with reasonable particularity in respect of a contingent
liability within the applicable time limits specified in
paragraph 5;
and the Warranties shall be deemed to be qualified accordingly.
2.2 The Warrantors shall have no liability in respect of any claim under
the Warranties or clause 9 which arises from any act or alleged act
of professional negligence occurring prior to Completion unless (i)
it is a matter specified in clause 9.1(a) or (ii) as at the date of
this Agreement either the Company or any of its employees has
sufficient information in relation to the act or alleged act of
negligence or the circumstances thereof that it ought reasonably to
have concluded that a complaint or claim of professional negligence
might be made in relation thereto and that it ought accordingly to
have reported such matter to its errors and omissions insurers, and
the Company has not reported such circumstances to its errors and
omissions insurers.
3 ALLOWANCES AGAINST CLAIMS
3.1 The Warrantors shall not be liable under this Agreement in respect
of any claim if and to the extent that:
(a) specific allowance, provision or reserve is made in the
Accounts in respect of the matter or thing giving rise
to the claim; or
(b) the loss in respect of which the claim (including any
claim under the Taxation Deed) is made:
(i) is recovered under a policy of insurance in
force on the date of such loss and if such
policy is maintained by the Warrantors, the
120
amount so recovered (net of costs of
recovery) is paid to the Purchaser; or
(ii) would have been recoverable under a policy
of insurance in force at Completion which is
not recoverable either because of any change
in the terms of the insurance after
Completion or because the policy is not
continued in force by the Purchaser or any
Group Company after Completion.
4 THIRD PARTY CLAIMS
4.1 The Warrantors shall be entitled to require the Purchaser (in the
name of any Group Company if the Warrantors so request) or any Group
Company at the expense of the Warrantors to take all such reasonable
steps or proceedings as the Warrantors may consider necessary in
order to avoid, dispute, resist, mitigate, compromise, defend or
appeal against any relevant third party claim (that is to say any
claim by a third party against any Group Company which will or may
give rise to a claim under the Warranties).
4.2 The Purchaser shall act or shall procure that the relevant Group
Company shall act in accordance with any such requirements subject
to the Purchaser and/or the Group Company being properly indemnified
by the Warrantors to the reasonable satisfaction of the Purchaser
against all reasonable costs and expenses incurred in connection
with the taking of such steps or proceedings.
4.3 For the purpose of enabling the Warrantors to avoid, dispute,
resist, mitigate, compromise, defend or appeal against any relevant
third party claim or to decide what steps or proceedings should be
taken in order to do so, the Purchaser shall:
(a) give notice to the Warrantors within 14 days of any
relevant third party claim or any circumstance giving or
likely to give rise to a relevant third party claim
coming to its notice or to the notice of any Group
Company;
(b) give the Warrantors or their duly authorised
representatives reasonable access to the personnel of
the Purchaser and/or the relevant Group Company (as the
case may be) and to any premises, chattels, accounts,
documents and records which are relevant to such claim
and are within the power, possession or control of the
Purchaser and/or the relevant Group Company in the Group
("relevant assets") to enable the Warrantors and their
duly authorised representatives to investigate the claim
and to examine and take copies or photographs of the
relevant assets at their own expense; and
(c) if the Warrantors so request, delegate entirely to them
the conduct of any proceedings of whatsoever nature
arising in connection with the third party claim and, in
that event, give or cause to be given to the Warrantors
all such assistance as they may reasonably require in
disputing the claim and instruct such solicitors or
other professional advisers as the Warrantors may
nominate to act in accordance with the Warrantors'
instructions on their behalf or on behalf of and in the
name of the relevant Group Company.
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4.4 The Warrantors shall reimburse to the Purchaser or the relevant
Group Company (as the case may be) all reasonable costs, charges and
expenses incurred by it in complying with its obligations under
paragraphs 4.1 to 4.3 inclusive.
5 TIME LIMITS
5.1 No claim shall be brought by the Purchaser or any Group Company for
breach of the Warranties or any other term of this Agreement (other
than clause 9 in respect of which the provisions of clause 9.3 shall
apply) or under the Taxation Deed unless notice in writing of such
claim (specifying in reasonable detail the event, matter or default
which gives rise to the claim) has been given to the Warrantors:
(a) in the case of a claim under the Taxation Deed or under
any of the Taxation Warranties, within seven years after
Completion; or
(b) in any other case, by 31 March 2002.
5.2 The Warrantors shall have no liability in respect of any claim under
the Warranties unless within twelve months after the date upon which
the Purchaser shall first have given notice thereof to the
Warrantors pursuant to paragraph 5.1 above proceedings in respect
thereof shall have been instituted by the Purchaser against the
Warrantors.
6 THRESHOLDS
6.1 Subject to paragraph 6.2, the Warrantors shall have no liability in
respect of any claim made under or in respect of any of the
Warranties set out in Part A of schedule 5 ("the General
Warranties") unless the amount of that claim when added to the
aggregate of all other such claims exceeds (pound)250,000. If the
aggregate amount of claims exceeds (pound)250,000 the Warrantors'
liability will be for the entire amount and not merely the excess.
6.2 If and in the event that the aggregate of all claims referred to in
paragraph 6.1 exceeds (pound)225,000, the Warrantors shall have no
liability in respect of any further claim made under or in respect
of any of the General Warranties unless that claim exceeds the sum
of (pound)1,000.
6.3 The Warrantors shall have no liability in respect of any claim made
under or in respect of the Taxation Deed or in respect of any of the
Tax Warranties ("A TAXATION CLAIM") unless the amount of that
Taxation Claim when added to the aggregate of all other Taxation
Claims exceeds (pound)50,000. If the aggregate amount of all
Taxation Claims exceeds (pound)50,000 the Warrantors' liability will
be for the entire amount and not merely the excess.
6.4 The Warrantors' liability in respect of any breach of warranty claim
or claim under clause 9 of the Agreement relating to ISB shall not
in any event exceed:
(i) 46.35% of the loss or damage suffered or incurred by ISB
by reason of the circumstances giving rise to the breach
of warranty or claim under clause 9; and
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(ii) all reasonable costs and expenses of or incidental to
the presentation, negotiation and settlement of such
claim.
6.5 References to "(pound)" in this paragraph 6 shall, in relation to
any Relevant Claim or Taxation Claim made in a currency other than
pounds sterling, be construed as references to the equivalent in
pounds sterling of such other currency at the date the claim is
made.
7 AGGREGATE MAXIMUM
7.1 Subject to paragraph 7.2, the aggregate liability of the Warrantors
in their respective Warrantor Proportions in respect of all claims
under or in respect of any of the terms of this Agreement or the
Taxation Deed shall not exceed an aggregate amount equal to:
(a) (pound)24,207,975; and
(b) all reasonable costs and expenses of or incidental to
the presentation, negotiation and settlement of all such
claims;
Provided always that no Warrantor shall be liable for more than his
Warrantor Proportion of the aforementioned aggregate.
7.2 The aggregate liability of the Warrantors in their respective
Warrantor Proportions in respect of clause 9.1(b) and insofar as any
such regulatory claims or liabilities arise in respect of or out of
the USA only, shall not exceed US$5 million.
7.3 For the avoidance of doubt, the Warrantors agree that they shall be
liable for the full amount of each and every claim (in excess of the
threshold set out in paragraph 6), up to the aggregate maximum as
set out in paragraphs 7.1 and 7.2.
8 NO DUPLICATION OF LIABILITY
8.1 The Purchaser hereby agrees with the Warrantors that, in respect of
any matter which may give rise to a liability under this Agreement
(including the Warranties) and also under the Taxation Deed:
(a) such liability shall not be met more than once;
(b) any liability with respect to such matter to any of the
Purchaser or the Company or any other Group Company
shall be deemed to be satisfied by the satisfaction of
the liability with respect to such matter to any other
of them.
8.2 For the avoidance of doubt, the Purchaser agrees that the Warrantors
shall have no liability under the Warranties or the Taxation Deed in
respect of any claim for stamp duty or stamp duty reserve tax
arising out of the sale and purchase of the Sale Shares under this
Agreement or Completion.
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9 SUCCESSFUL CLAIMS DEEMED TO CONSTITUTE A REDUCTION IN PURCHASE PRICE
9.1 The satisfaction by the Warrantors of any claim under this Agreement
(including the Warranties) shall be deemed to constitute a reduction
in the consideration payable by the Purchaser for the sale of the
Sale Shares.
10 PURSUING RECOVERY FROM THIRD PARTY
10.1 Where any Group Company or the Purchaser is entitled to recover from
a third party (being a person other than the Warrantors) a sum in
respect of a loss, damage, cost or expense which is or could become
the subject of a claim against the Warrantors under the Warranties
or the Taxation Deed (and whether before or after the Warrantors
have made payment hereunder) the Purchaser shall:
(a) if so required by the Warrantors and at the Warrantors'
cost and expense and on the Warrantors providing proper
indemnities and security in respect of all costs and
expenses to be incurred, procure that the Purchaser or
the relevant Group Company (as the case may be) takes
all steps as the Warrantors may reasonably require to
enforce such recovery;
(b) keep the Warrantors informed of the progress of any
action taken; and
(c) thereafter any claim against the Warrantors shall be
limited to the amount by which the total of the loss,
damage, costs and expenses suffered or incurred by the
Purchaser or the relevant Group Company as a result of
such breach shall exceed the amount so recovered,
Provided always that nothing in this paragraph 10 shall require the
Purchaser or any Group Company to take any step which the Purchaser
reasonably believes may be adversely and materially prejudicial to
the business of the Purchaser or any Group Company.
10.2 If the Purchaser declines to take steps to enforce recovery against
any third party in reliance upon the proviso to paragraph 10.1 then
the Purchaser shall (upon the Warrantors' written request) procure
that the relevant Group Company assigns to the Warrantors (without
limitation and without prejudice to the Purchaser's right of
recovery against the Warrantors) the relevant Group Company's rights
of recovery against the third party.
11 SUBSEQUENT RECOVERY
11.1 If the Warrantors make any payment pursuant to the Warranties or the
Taxation Deed ("the Payment") and after making the Payment the
Purchaser or any Group Company recovers any amount which is
referable to the subject matter of the claim in respect of which the
Payment was made, the Purchaser shall or shall procure that the
relevant Group Company (as the case may be) shall upon receipt
thereof forthwith pay to the Warrantors a sum equal to the lesser
of:
(a) the amount recovered (after deducting any taxation in
respect thereof payable by the recipient and any costs
attributable to the recovery); and
(b) the Payment.
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12 COVENANT TO PAY (CLAUSE 8.2)
12.1 The provisions of this schedule shall apply to claims under clause
8.2 of this Agreement in the same way that they apply to claims
under the Warranties; and the Warrantors' liability to the Purchaser
under clause 8.2 shall be limited and modified accordingly. All
references in this schedule to all or any claims under the
Warranties and/or the Taxation Deed shall be deemed to include all
or any claims made pursuant to clause 8.2.
13 SET-OFFS
13.1 If either of the Heritage Provision or the TDR Provision shall prove
to be an over-provision the amount over-provided shall be set off
against the liability (if any) of the Warrantors under the
Warranties and clause 9.1(d) and (in the case of the TDR Provision
only the Taxation Deed.
13.2 If after Completion any monies are paid to any Group Company in
respect of the sale by Charles Terrace Limited of the business of
Compass Certificate Schemes Limited ("the Compass Payment"), the
amount so paid shall be set off against the liability (if any) of
the Warrantors under the Warranties and clause 9.1(d).
13.3 Any overprovision in respect of the TDR Provision may be set off
against the liability of the Warrantors under clause 9.1(d) or the
Taxation Deed (at the Warrantor's election) but not both.
13.4 Any set off required by this paragraph 13 shall be effected only if
and to the extent that:
(a) (insofar as the Heritage Provision and TDR Provision are
concerned) the relevant credit has been made to the
profit and loss account of the Company or any of the
Subsidiaries in accordance with generally accepted
accounting principles; and
(b) (insofar as the Griffin Receipt and the Compass Payment
are concerned), such monies are credited to the profit
and loss account of the Company or any of the
Subsidiaries in accordance with generally accepted
accounting principles.
13.5 The Purchaser shall keep a running account of any payments made by
the Warrantors under this Agreement or the Taxation Deed (whether
from the Escrow Account or otherwise). As and when any credits to
the Company's or any Subsidiary's profit and loss account arising
from this paragraph 13 are made, the Purchaser shall reconcile such
credits (in accordance with this paragraph 13) against the payments
(if any) made at that date by the Warrantors under this Agreement or
the Taxation Deed and shall either:
(a) if it is at the relevant date known or reasonably likely
that the Warrantors shall be obliged to make a further
payment to the Purchaser under this Agreement or the
Taxation Deed, notify the Warrantors that it shall
permit such further payment to be made net of the
credit; or
125
(b) make an appropriate repayment to the Warrantors of any
over-payment (or, if the repayment occurs in the 12
months immediately following Completion, make an
appropriate repayment to the Escrow Account).
13.6 If there shall be any difference between the parties on the question
of whether there shall be any such over-provision or the amount
thereof, the matter shall be referred to the relevant Group
Company's auditors for the time being whose decision shall be final,
such decision being given as experts not as arbitrators. The cost of
such auditors in acting hereunder shall be borne by the parties
equally.
14 GRIFFIN INSURANCE ASSOCIATION
14.1 If the Griffin Insurance Association Limited ("the Griffin") is
sold, wound up or de-mutualised or its business is sold at any time
during the period of seven years from the Completion Date and any
Group Company, the Purchaser or any member of the Purchaser's Group
receives a capital payment or other realisable and material benefit
(including without limitation credit against premiums or call) in
connection with the said sale, winding-up or de-mutualisation and by
reason of any Group Company's membership of the Griffin, or there is
any other return call made to any Group Company by the Griffin (in
either case, "the Griffin Receipt"), there shall be set against the
Warrantors' liability to the Purchaser under the Warranties or
clause 8 or clause 1.1(d) an amount equal to the Griffin Receipt.
14.2 The provisions of clause 4.2 shall also apply in respect of any
Griffin Receipt to the extent such receipt is not utilised under
paragraph 14.1.
15 INFORMATION FOR WARRANTORS
15.1 The Purchaser shall procure that the Warrantors (and their
professional advisers) are promptly provided with such information
and copy documentation as they may reasonably require in order that
they may (i) assess the extent of their liability in respect of any
current claims against the Warrantors under the Warranties or clause
9 (ii) assess the value of any credits which are available to be
made against the claims in question and (iii) assess whether the
Purchaser has discharged its obligation to take all reasonable steps
to mitigate its loss in respect of the claims in question. If the
Warrantors reasonably deem it necessary the Purchaser shall procure
that any relevant Group Company allows the Warrantors and/or their
professional advisers to inspect the books and records of the
Company, subject to such confidentiality undertakings as the
Purchaser may reasonably require.
15.2 Any requests pursuant to paragraph 15.1 shall be made by the
Representative Warrantor. "Representative Warrantor" means Mr
Bernard Warren or such other of the Warrantors as a majority of the
Warrantors shall (with the written consent of the appointee) appoint
to act as the representative of the Warrantors for the purposes of
schedule 8 of this Agreement.
15.3 Only one request for information and/or inspection every 3 months
may be made by the Representative Warrantor under paragraph 15.1.
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15.4 The Purchaser undertakes to take all reasonable steps to mitigate
(and procure that each Group Company mitigates) its loss in respect
of any fact, matter or circumstance which may give rise to a claim
against the Warrantors under this Agreement.
16 EXCLUSION OF LIMITATIONS
16.1 Subject to paragraph 16.2 the provisions of this schedule shall not
apply to any claim made as a result of:
(a) any claim against warranty 2.2 and 2.3 (share
ownership), warranty 3 (capacity) and warranty 12.2
(share capital) in schedule 5;
(b) any claim arising out of any fraud or fraudulent
misrepresentation on the part of the Company or any of
its employees or officers or any of the Vendors.
16.2 The provisions of paragraph 16.1 shall not apply in respect of any
claim against the two subsidiaries of ISB, European Space Brokers
S.A. and ISB Asia/Pacific Pte Limited.
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SCHEDULE 9
ARRANGEMENTS RELATING TO THE ESCROW AMOUNT
1 The Escrow Amount is to be retained in the Escrow Account and shall
only be released in accordance with the provisions hereof. The
Escrow Account shall be opened and maintained at the Vendors'
Solicitors bank and shall be opened on the signature of not less
than one partner of each of the Vendors' Solicitors and the
Purchaser's Solicitors.
2 Subject as hereinafter mentioned the parties shall join in procuring
the Vendors' Solicitors and the Purchaser's Solicitors to procure
that the whole of the monies standing to the credit of the Escrow
Account together with any interest earned thereon shall become
payable to the Vendors' Solicitors (whose receipt shall be a good
discharge therefor) for the account of the Vendors on such date as
is 12 months after the Completion Date ("the Payment Date"). The
Purchaser and the Purchaser's Solicitors shall have no obligation as
to the distribution or allocation of any amount so paid between the
Vendors.
3 If prior to the Payment Date the Purchaser shall notify the Vendors'
Solicitors in writing of any claim under any of the provisions of
this Agreement or the Taxation Deed the Vendors' Solicitors and the
Purchaser's Solicitors shall retain in the Escrow Account whichever
is the lesser of:
(a) the whole of the monies standing to the credit of the
Escrow Account; and
(b) the aggregate amount claimed as aforesaid
and the balance (if any) shall then become payable as aforesaid on
the Payment Date.
4 (a) In the event that any monies shall be retained in the
Escrow Account after the Payment Date as aforesaid, the
Vendors' Solicitors and the Purchaser's Solicitors shall
continue to hold such monies in the Escrow Account
pending the settlement or resolution of any claim so
made.
(b) On any claim having been settled or resolved and the
amount payable thereunder determined, the Vendors'
Solicitors and the Purchasers' Solicitors shall pay to
the Purchaser out of the Escrow Account an amount equal
to the amount so payable together with any interest
earned thereon (insofar as there shall be sufficient
standing to the credit of the Escrow Account).
(c) Any amount standing to the credit of the Escrow Account
after settlement or resolution of all claims made as
aforesaid shall be payable to the Vendors' Solicitors
(whose receipt shall be a good discharge therefor) for
the account of the Vendors.
128
5 The payment of any sum to the Purchaser and/or any Group Company
pursuant to this schedule in or towards satisfaction of any claim
under the terms of this Agreement or the Taxation Deed shall in no
way prejudice or affect any other rights or remedies of the
Purchaser or any Group Company for the purpose of recovering any
amount due to the Purchaser or any Group Company and not satisfied
by payment made out of the First Escrow Account.
6 For the purposes of this schedule 9 and save where a claim is made
under the Taxation Deed:
(a) any claim notified under paragraph 3 shall be deemed to
have been withdrawn if legal proceedings have not been
issued and served in respect thereof within 12 months of
the claim being so notified;
(b) a claim shall be deemed to be settled upon the Vendors
and the Purchaser agreeing a final settlement thereof
and a claim shall be deemed to be resolved upon an order
or decree of a Court of competent jurisdiction being
given in proceedings in respect of the claim and such
order or decree being final and not or no longer
appealable;
(c) the amount determined to be payable upon the settlement
or resolution of the claim shall be the amount agreed by
the Vendors and the Purchaser under any such settlement
or determination by any such order or decree (as the
case may be) to be payable by the Vendors in respect
thereof.
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SIGNED by............. )
as the duly apointed attorney of )
ISLAND TRUSTEES LIMITED )
(as trustee of the settlement dated )
15 October 1987 by M.A. Hemmings) ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
A. MACFADYEN (as trustee for: the )
settlement dated 15 October 1987 by )
M.A. Hemmings; the settlement dated )
15 October 1987 by B.J. Warren; the )
settlement dated 16 October 1987 by )
J.H. Howes; the settlements all dated )
2 March 1999 made by B.J. Warren for )
each of G.C. Warren, L.P. Warren, ) ........................
M.R. Warren and N.K. Warren)
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
R. WIGHTMAN (as trustee of the )
settlement dated 15 October 1987 )
by M.A. Hemmings) ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
THOMAS JOSEPH ADAMS ) ........................
in the presence of:
130
SIGNED by ............ )
as the duly appointed attorney of )
R.D. HUDSON (as trustee for: the )
settlement dated 15 October 1987 )
by B.J. Warren; the settlement dated )
16 October 1987 by J.H. Howes; the )
settlements all dated 2 March 1999 )
made by B. J. Warren for each )
of G.C. Warren, L.P. Warren, M.R. Warren ) ........................
and N.K. Warren) in the presence of: )
SIGNED by ............ )
as the duly appointed attorney of )
S.M. WARREN (as trustee for: the )
settlement dated 15 October 1987 )
by B.J. Warren; the settlements all dated )
2 March 1999 made by B.J. Warren for each )
of G.C. Warren, L.P. Warren, M.R. Warren ) ........................
and N.K. Warren) in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
A.J. BAULF (as trustee for: the )
settlement dated 16 October 1987 )
by J.H. Howes and the settlement dated ) ........................
7 July 1999 by J Hyem) in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
MALCOLM BERNARDES ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
MARIA JANE BRYANT ) ........................
in the presence of:
131
SIGNED by ............ )
as the duly appointed attorney of )
PAULINE CHAPMAN ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
BRIAN L. COLESBY ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
MARGARET ISOBEL COLLINS ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
DAVID JOHN DAVIES ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
STEVEN V. EAGLE ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
MICHAEL W. GAMBLE ) ........................
in the presence of:
132
SIGNED by ............ )
as the duly appointed attorney of )
MARTIN HOWARD GREEN ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
ROGER CHARLES GROVER ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
PAUL HARRISON ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
STEVEN HART ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
MICHAEL ALEXANDER HEMMINGS ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
DAVID FRANCIS HOWARD ) ........................
in the presence of:
133
SIGNED by ............ )
as the duly appointed attorney of )
DOLORES ANN HOWES ) ........................
in the presence of:
SIGNED by ............ )
JOHN HARRISON HOWES ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
CAROLINE HYEM ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
JOHN HYEM ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
CAROLINE HYEM (as trustee of the )
settlement dated 7 July 1999 by J. Hyem) ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
JOHN HYEM (as trustee of the )
settlement dated 7 July 1999 by J. Hyem) ) ........................
in the presence of:
134
SIGNED by ............ )
as the duly appointed attorney of )
LOUISE CLAIRE JONES ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
ALLAN KENNEDY ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
PATRICIA LLOYD )
(as executrix of Christopher Lloyd) ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
DAVID WILLIAM LONG ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
RICHARD JOHN MAHONEY ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
CHRISTOPHER MILLS ) ........................
in the presence of:
135
SIGNED by ............ )
as the duly appointed attorney of )
JULIA ANNE MILLS ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
LESLIE GUY MARK MORANT ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
PETER THOMAS OSBORNE ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
GEORGE ALAN PACKER ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
HOWARD DOUGLAS ARTHUR RIGG ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
LYNDA ANN ROBERTS ) ........................
in the presence of:
136
SIGNED by ............ )
as the duly appointed attorney of )
DAVID JAMES SALES ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
PETER DAVID SHELLARD ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
CLIVE PATRICK GILES SMITH ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
MARTIN PAUL SPENCER ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
BRADLEY H J START ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
GERARD WILLIAM STONE ) ........................
in the presence of:
137
SIGNED by ............ )
B.J. WARREN (as trustee of the Employee )
Share Option Scheme) ) ........................
in the presence of:
SIGNED by ............ )
J. HOWES (as trustee of the Employee )
Share Option Scheme) ) ........................
in the presence of:
SIGNED by ............ )
BERNARD JAMES WARREN ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
ELIZABETH ANNE WARREN ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
GUY CHARLES WARREN ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
JOANNA WARREN ) ........................
in the presence of:
138
SIGNED by ............ )
as the duly appointed attorney of )
LEWIS PATRICK WARREN ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
MEL RICHARD WARREN ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
NEIL KENNETH WARREN ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
SHEILA MARY WARREN ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
MICHAEL DAVID WILLIAMS ) ........................
in the presence of:
SIGNED by ............ )
as the duly appointed attorney of )
ALAN WOOD ) ........................
in the presence of:
139
SIGNED by......... )
for and on behalf of )
E W BLANCH LIMITED ) ........................
in the presence of: Director
140
