SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): November 23, 1999
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NEW BRUNSWICK SCIENTIFIC CO., INC.
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(Exact name of registrant as specified in its charter)
New Jersey 22-1630072
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(State of Incorporation) (IRS Employer Identification Number)
0-6994
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(Commission File Number)
44 Talmadge Road, Edison, New Jersey 08818
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(Address of Principal Executive Offices)
Registrant's Telephone Number: (732) 287-1200
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Item 2. Acquisition of Assets
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On November 23, 1999, New Brunswick Scientific Co., Inc. (the "Company")
acquired all of the outstanding common stock of DJM Cryo-Research Limited and
the net assets of DJM Fabrications, collectively DJM, a United Kingdom
Corporation and Partnership under common control, respectively, located in
Tollesbury, England.
The purchase price consisted of 3.5 million ($5.5 million) in cash and
250,000 ($392,500) in term notes to be repaid in monthly installments of
$52,513.08 with 8.14% interest. For accounting purposes the acquisition will be
accounted for as a purchase.
The source of the cash consideration paid for DJM was the Company's line of
credit for acquisition purposes provided by First Union National Bank.
The common stock of DJM Cryo-Research Limited was acquired from its two founding
shareholders and their families and the net assets of DJM Fabrications were
acquired from the aforementioned two founding shareholders who were also the
partners of DJM Fabrications.
The assets of DJM had been used by the sellers in the business of designing,
developing and manufacturing ultra-low temperature freezers for laboratories
with substantially all freezers being sold to the Company for many years. The
Company intends to continue using DJM's assets in that business.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Financial Statements of DJM. Combined financial statements of DJM shall
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be filed by amendment hereto, within 60 days of the filing date hereof.
(b) Pro Forma Financial Information. The unaudited pro forma financial
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information required herein shall be filed by amendment hereto within 60 days of
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the filing date hereof.
(c) Exhibits: Attached hereto as Exhibits are the following:
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(1) Purchase Agreement
(2) Cross Option Agreement
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Signatures
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: December 8, 1999
REGISTRANT: New Brunswick Scientific Co., Inc.
By:_______________________________
Samuel Eichenbaum
Vice President, Finance
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ACQUISITION AGREEMENT
Date 1999.
Parties :
(1) 'The Vendors' the persons whose names and addresses are set out in
column 1 of Schedule 1.
(2) 'The Purchaser' N.B.S. ULT Limited (registered number 3864134) whose
registered office is at Aquis Court, 31 Fishpool Street, St Albans,
Hertfordshire
OPERATIVE PROVISIONS :
1. INTERPRETATION
1.1 In this agreement, including the Schedules other than Schedule 4:
1.1.1 the following words and expressions have the following
meaning, unless they are inconsistent with the context:
'AGREED FORM' the form agreed between the parties on or prior to the date of
this Agreement and initialled for the purposes of identification by their
respective solicitors
'BUSINESS' the business of precision sheet metal fabrications carried on by the
Partners under the name of D.J.M. Fabrications,
'CA' Companies Act 1985 as amended by the Companies Act 1989
'CAA' Capital Allowances Act 1990
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'COMPANIES ACTS' CA, the former Companies Acts (within the meaning of CA s
735(1) and the Companies Act 1989
'COMPANY' D.J.M. Cryo-Research Limited
'COMPLETION' (1) as regards the Company, completion of the sale and purchase of
the shares and the Lease in accordance with Clause 5
(2) as regards the Business, the transfer of the
Business as a going concern in accordance with the provisions of Clause 3.3
hereof
'COMPLETION ACCOUNTS' the balance sheet of the Company and, if the Option is
exercised, the Business at midnight on the day prior to the date of Completion
and its profit and loss account for the period from the Last Accounts Date to
midnight on the day prior to the date of Completion prepared on the basis of and
in accordance with the same accounting principles as the Principal Accounts
'CROSS-OPTION AGREEMENT' the Cross-Option Agreement made between the Purchaser
and the Partners in the agreed form
'NET ASSETS' Total assets less total liabilities of DJM Cryo-Research Limited as
set out in the Completion Accounts plus the net assets of the Business less the
Excluded Assets, as established by the Reporting Accountants, and as agreed by
the Purchaser, at the Completion Date
'DEED OF GUARANTEE' The Guarantee to be given by New Brunswick Scientific
(U.K.) Limited in the agreed form
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'DETERMINATION PROCEDURE' the procedure set out in Clause 11
'DISCLOSURE LETTER' the Disclosure Letter including the Disclosure Bundle of the
same date as this agreement from the Warrantors to the Purchaser including all
documents attached
'ENVIRONMENT' all or any of the air, water and land including air within
buildings and other natural or man made structures above on or below ground
'ENVIRONMENTAL AUTHORISATIONS' any permits, licences, consents or other
authorisations required under any Environmental Legislation for the operation of
the business of the Company and the Business and the occupation or use of the
Property
'ENVIRONMENTAL LEGISLATION' all applicable laws, statutes, statutory
instruments, subordinate legislation, common law and other national and local
laws, treaties, regulations, directives, judgements, orders instructions or
awards of any court or competent authority codes of conduct and practice and
guidance notes and other measures imposed by any relevant body to which the
business of the Company or the Property is or has been subject which relate to
the pollution or protection of the health of humans, animals or plants or the
Environment or the generation, transportation, storage, treatment or disposal of
any matter including in particular but without prejudice to the generality of
the foregoing the following statutes :-
The Environmental Protection Act 1990
The Control of Pollution Act 1974
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The Planning (Hazardous Substances) Act 1990
The Radioactive Substances Act 1993
The Clean Air Act 1993
The Water Resources Act 1991
The Water Industry Act 1991
The Health & Safety at Work etc Act 1974
The Alkali etc. Works Registration Act 1906
The Public Health Act 1936
The Environment Act 1995
as the same are from time to time varied or amended
'EXCLUDED ASSETS' the Business Premises, cars of the Business, all amounts owing
by the Company to the Business and all cash and bank balances of the Business at
the Completion Date
'FA' Finance Act
'ICTA' Income and Corporation Taxes Act 1988
'INTELLECTUAL PROPERTY RIGHTS' any invention, patent, patent application,
know-how, trade mark, trade mark application, trade name, registered design,
copyright or other similar industrial or commercial right together with goodwill
therein
'IHTA' Inheritance Tax Act 1984
'JOINT ACCOUNT' the joint account to be opened pursuant to Clause7.1
'LAST ACCOUNTS DATE'
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(1) The Company - 30th April 1999
(2) The Business - 28th February 1999
being the dates to which the Principal Accounts of the Company and Business
respectively have been prepared
'LOAN NOTES' the loan notes to be issued in accordance with this agreement in
the form set out in Schedule 10
'OPTION' an option arising under the Cross-Option Agreement
'PARTNERS' David Julian Minister and David John Minister
'PAYMENT DATE' 14 days after agreement of the Completion Accounts in accordance
with the provisions of Clause 4 or their determination in accordance with the
provisions of Clause 11 or by prior written agreement by the parties hereto
whichever shall be the earlier
'PLANNING ACTS' the Town and Country Planning Act 1990
The Planning (Listed Buildings and Conversation Areas) Act 1990
The Planning (Hazardous Substances) Act 1990
The Planning (Consequential Provisions) Act 1990
The Planning and Compensation Act 1991
as the same are from time to time varied or amended and any other statute or
subordinate legislation relation to the use, development and enjoyment of land
and buildings
'PRINCIPAL ACCOUNTS' the audited financial statements of the Company in
accordance with CA and the unaudited accounts of the Business for the accounting
reference period ended on the Last Accounts Date applicable to such accounts
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'PURCHASER' ACCOUNTANTS' KMPG 31 Fishpool Street, St. Albans, AL3 4RF
'PURCHASER'S SOLICITORS' Bretherton and Company of 6 Romeland Hill St. Albans
Hertfordshire AL3 4ET
'REPORTING ACCOUNTANTS' Perry Douglass & Co 4 Market Hill, Clare, Suffolk, CO10
8NN
'RETENTION' the sum referred to in Clause 3.1(a) as reduced from time to time by
payments made in accordance with this agreement but excluding any interest
'RETENTION ACCOUNT INSTRUCTIONS' the instructions set out in Schedule 8
'SHARES' The Shares set out in Schedule 1
'SSAP' a statement of standard accounting practice or financial reporting
standard in force at the date hereof as issued by the Institute of Chartered
Accountants in England and Wales and adopted by the Accounting Standards Board
Limited (No. 2526824) or such other body prescribed by the Secretary of State
from time to time pursuant to S256 CA as an Accounting Standard
'STOCK EXCHANGE' the London Stock Exchange Limited
'SUBSIDIARY a subsidiary as defined in CA s 736
'TAXATION' means all forms of tax, duty, rate levy, charge or other imposition
or withholding whenever and by whatever authority imposed and whether of the
United Kingdom or elsewhere, including (without limitation) income tax
(including income tax required to be deducted or withheld from or accounted for
in respect of any payment) corporation tax, advance corporation tax, capital
gains tax, capital transfer tax, inheritance tax, petroleum revenue tax, value
added tax, customs duties, excise duties, insurance premium tax, stamp duty,
capital duty, stamp duty reserve tax, national insurance and other similar
contributions, and any other taxes, duties, levies, charges, imposts or
withholdings corresponding to, similar to, replaced by or replacing any of them,
together with any interest, penalty or fine in connection with any taxation, and
any liability to make a payment by way of reimbursement, recharge, indemnity,
damages or management charge connected in any way with any taxation and
regardless of whether any such taxes, duties, levies, charges, imposts,
withholdings, interest, penalties or fines are chargeable directly or primarily
against or attributable directly or primarily to the Company or any other person
and of whether any amount in respect of any of them is recoverable from any
other person
'TAX DEED' a tax deed in the form set out in Schedule 4
'TCGA' Taxation of Chargeable Gains Act 1992
'TMA' Taxes Management Act 1970
'VATA' Value Added Tax Act 1994
'VENDOR' any one of the Vendors and any one of the Partners
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'VENDORS' SOLICITORS' Thompson Smith and Puxon of 4/5 North Hill Colchester
Essex CO1 1EB
'WARRANTIES' the warranties and undertakings of the Warrantors contained in
Clause 6 and Schedule 3
'WARRANTORS' David John Minister and David Julian Minister
'WARRANTY CLAIM' any claim made by the Purchaser for breach of any of the
warranties
1.1.2 all references to a statutory provision shall be construed as
including references to :
(a) any statutory modification, consolidation or re-enactment (whether before
or after the date of this agreement) for the time being in force;
(b) all statutory instruments or orders made pursuant to a statutory
provision;
(c) any statutory provisions of which a statutory provision is
a consolidation, re-enactment or modification;
1.1.3 (i) any reference to the Vendors include, where appropriate,
their personal representatives;
(ii) where any obligation, covenant, obligation warranty or any
other matter in the Agreement relates to the Company alone then
any reference to the Vendors shall include all persons named
in Part 1 of Schedule 1, and where any reference relates to the
Business alone, then any reference to the Vendors shall include
only the Warrantors;
1.1.4 except where the context otherwise requires words denoting the
singular include the plural and vice versa, words denoting any one
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gender include all genders; words denoting persons include firms
and corporations and vice versa;
1.1.5 unless otherwise stated, a reference to a Clause or sub-Clause or
a Schedule is a reference to a Clause or a sub-Clause of or a Schedule to
this agreement
1.1.6 if a period of time is specified and dates from a given day or
the day of an act or event, it shall be calculated exclusive
of that day
1.2 Clause headings in this agreement and in the Schedules are for
ease of reference only and do not affect the construction of any provision
2. Agreement of sale
2.1 Subject to the terms and conditions of this agreement, the
Vendors shall sell with full title guarantee and the Purchaser shall purchase
the shares in the Company free from all liens charges and encumbrances and with
all rights attached to them, with effect from the date of this agreement, and
each of the Vendors hereby waives any preemptive rights he or she may have in
relation to any of the shares under the articles of association of the Company
or otherwise and consents to the transfer of the shares to the Purchaser in
accordance with the Articles of Association of the Company
2.2 If either the Warrantors or the Purchasers exercise an
option under the Cross-Option Agreement, then, subject to the terms and
conditions of this agreement, the Partners shall sell with full title guarantee
and the Purchaser shall procure the purchase of the Business as a going concern
but excluding the Excluded Assets, together with the exclusive right to use the
Business name of D.J.M. Fabrications all in accordance with the terms of the
Cross-Option Agreement.
3. Purchase consideration
3.1 The purchase consideration for the Shares shall be the sum of
ONE MILLION POUNDS ( 1,000,000) which shall be paid or satisfied by :
(a) the sum of 50,000 being paid in the manner provided in Clause7.1;
(b) the sum of 700,000 being paid in cash at Completion;
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(c) the sum of Two hundred and fifty thousand Pounds ( 250,000) being
satisfied by the issue of Loan Notes by N.B.S.ULT Limited
3.2 The Vendors shall be entitled to the purchase consideration for the
Shares and the Loan Notes as nearly as may be in proportion to their holdings
of the Shares
3.3 All monies due from the Company to the Directors relating to Directors'
Loans shall be settled prior to Completion
4. Completion Accounts
4.1 The parties shall jointly procure, as soon as
practicable and in any event within 21 days after the date of Completion, the
preparation of the Completion Accounts by the Reporting Accountants, who shall
also be instructed to certify the value of the Net Assets based on the
Completion Accounts (as appropriate) ('the Reporting Accountants Certificate').
The cost of the certification shall be paid by the Warrantors
4.2 The Vendors shall on Completion deliver to the Reporting
Accountants all relevant facts and information for the purposes of preparing the
Completion Accounts
4.3 In the Completion Accounts no value shall be attributable to any
tax losses or advance corporation tax recoverable by way of set off against
corporation Tax liabilities on profits from the date of Completion or to any
existing goodwill of the Company or to any discount which is dependent upon the
date of settlement of liabilities or amounts of tax recoverable in the
Completion Accounts (i) an accounting period of the Company shall be deemed to
end on the date of Completion (ii) full provision for any liability or potential
liability to Corporation Tax will be made in respect of any investments or
goodwill or fixed assets which have been disposed of on or before Completion.
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4.4 The Reporting Accountants shall be instructed to deliver to the
Purchaser, a draft of the Completion Accounts subject to signature and a copy of
the Reporting Accountants' Certificate and further, the Purchaser and its agents
shall be given access to inspect all the working papers and notes used by the
Reporting Accountants in the preparation of the draft Completion Accounts, send
written comments and suggested amendments thereon to the Reporting Accountants
within 30 days of receipt of such draft failing which, the Completion Accounts
shall be deemed to have been agreed. If the form and contents of the draft
Completion Accounts are not agreed by the Reporting Accountants and the
Purchaser within 30 of delivery of the Purchaser's comments and suggested
amendments as aforesaid either party may invoke the Determination Procedure. In
the preparation of the Completion Accounts and the Reporting Accountants
Certificate the Reporting Accountants can use their best judgment or their best
estimate where any amount is uncertain
4.5 If the Net Assets (certified or determined in accordance with the
provisions of Clause 4.4) fall short of 600,000 and if an option has been
exercised then any shortfall is repayable to the Purchasers in accordance with
Clause 4.6 hereof
4.6 The Vendors jointly and severally authorise the Vendors' Solicitors
and the Purchaser's Solicitors to pay the amount of any shortfall in the Net
Assets under Clause 4.5 to the Purchaser in cash from the Retention (together
with interest earned thereon) within 14 days after the approval of the
Completion Accounts and certification by the Reporting Accountants or
determination pursuant to the Determination Procedure. Should the Retention be
insufficient to pay any shortfall, the Vendors jointly and severally undertake
to pay the balance within fourteen days, and failing payment in full within the
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period of fourteen days, the balance outstanding from time to time shall bear
interest (as well after as before judgment) from the date of Completion until
actual payment at the rate of four per cent per annum above the base rate of
Lloyds Bank plc for the time being prevailing.
5. COMPLETION
5.1 Completion of the sale of the Shares shall take place at the
offices of the Vendors' Solicitors on the signing of this agreement when,
subject to Clause 5.6 all the transactions mentioned in the sub-Clauses 5.2 to
5.6 shall take place
5.2 The Vendors shall deliver to the Purchaser;
5.2.1 duly completed and signed transfers in favour of the
Purchaser or as it may direct in respect of the Shares together with the
relative share certificates;
5.2.2 the Tax Deed duly executed by the Warrantors;
5.2.3 the resignations of the directors, and the secretary from
their respective offices in the Company, with a written acknowledgement from
each of them executed as a deed in such form as the Purchaser requires that he
or she has no claim against the Company in respect of breach of contract,
compensation for loss of office, redundancy or unfair dismissal or on any other
grounds whatsoever;
5.2.4 the statutory books of the Company complete and up-to-date
and its certificate of incorporation;
5.2.5 the lease relating to the Property;
5.2.6 the appropriate forms to amend the mandates given by the
Company to its bankers
5.2.7 written confirmation from the Vendors that there are no
subsisting guarantees given by the Company in their favour and that after
compliance with Clause 5.3 none of the Vendors or persons or companies
connected with them will be indebted to the Company
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5.2.8 bank statements of the Company issued by on-line
computer (together with bank reconciliation statements) in respect of each bank
account showing all balances as at midnight on the day prior to Completion
5.2.9 evidence reasonably acceptable to the Purchaser that a final dividend was
paid to the Vendors on or before Completion
5.3 The Vendors or persons or companies connected with them shall repay
all monies then owing by them to the Company whether due for payment or not. Any
amount not so repaid shall bear interest from the date of Completion to the date
of repayment at the rate of 6% over the base rate for the time being of Lloyds
Bank. The Vendors jointly and severally authorise the Vendors' Solicitors and
the Purchasers' Solicitors to pay any such amount outstanding in cash from the
Retention together with the interest calculated as above
5.4 A Board meeting of the Company shall be held at which:
5.4.1 such persons as the Purchaser may nominate shall be
appointed additional directors;
5.4.2 the transfers referred to in Clause 5.2.1 shall be
approved (subject to stamping); and
5.4.3 the resignations referred to in Clause 5.2.3 and shall be
submitted and accepted
5.5 Upon completion of the matters referred to above:
5.5.1 the Purchaser shall deliver to the Vendors' Solicitors by
way of telegraphic transfer the sum of 700,000 in respect of the
consideration for the shares;
5.5.2 the Purchaser shall deliver to the relevant Vendors the
Loan Notes together with the Deed of Guarantee duly
executed by New Brunswick Scientific (U.K.) Limited
5.5.3 the Purchaser shall deliver to Lloyds Bank, St. Albans Branch by
way of telegraphic transfer the Retention sum to be dealt with as provided
in Clause 7.1;
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5.5.4 the Purchaser shall enter into the Service Agreement with Mr.
David John Minister in the form set out in Schedule 14
5.5.5 the Purchaser shall deliver to the Partners the Counterpart
Lease duly executed and the Partners shall deliver to the Purchasers the
Lease duly executed
5.6 The Purchaser may, in its absolute discretion, waive any requirement
contained in Clauses 5.3 to 5.5, and shall not be obliged to complete the
purchase of any of the Shares unless the purchase of all the Shares is completed
in accordance with this agreement, but may instead rescind this agreement
without prejudice to any other remedy it may have
6. WARRANTIES AND UNDERTAKINGS
6.1 The Vendors hereby jointly and severally warrant, represent and
undertake that each of the Vendors are the sole and absolute owners and
registered holders of all the Shares shown against their respective names in
Schedule 1 and are entitled to transfer the full legal and beneficial ownership
of the Shares unencumbered to the Purchaser on the terms of this agreement
without the consent of any third party;
6.2 The Warrantors hereby jointly and severally warrant, represent, and
undertake to the Purchaser that:
6.2.1 the Shares, will at Completion constitute the whole of
the issued and allotted share capital of the Company
6.2.2 there is, and at Completion will be, no charge, pledge,
lien or other encumbrance on, over or affecting the Business and there is,
and at Completion will be, no agreement or arrangement to give or create
any such charge, pledge, lien or encumbrance and no claim has been or
will be made by any person to be entitled to any of the foregoing;
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6.2.3 each of the Warrantors are the sole and absolute owners
of the Business and are entitled to transfer the full legal and beneficial
ownership thereof to the Purchaser on the terms of this agreement without
the consent of any third party
6.2.4 the Warrantors will, if required to do so by the
Purchaser, provide any information in respect of the period up to the date
of Completion which the Purchaser deems will be helpful in preparing
returns of emoluments and benefits for submission to the Inland Revenue
6.2.5 the Warrantors will, if required to do so by the
Purchaser and at the Purchaser's cost, provide any information which the
Warrantors have in their possession which the Purchaser considers will be
helpful in determining the base cost of any asset of the Company for
Taxation purposes
6.2.6 within seven days of Completion, all records and other
papers relating to cash and credit sales for the previous trading year in
the Company will be delivered to the Purchaser
6.2.7 the information in Schedule 2 relating to the Company
and the Business is true and accurate in all respects and that the Company
has no Subsidiaries;
6.2.8 save as outlined in the Disclosure Letter, the Warranties
in Schedule 3 are true and accurate in all material respects at the date
of this agreement
6.2.9 so far as the Warrantors are aware the contents of the
Disclosure Letter and of all documents attached to the
Disclosure Letter, are true and accurate in all respects, and
there are no other matters which have not been been
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disclosed which may render those disclosures incomplete,
inaccurate or misleading
6.3 Where any of the Warranties is qualified by the expression "to the
best of the Warrantors' knowledge or "so far as the Warrantors are aware" or any
similar expression in relation to either the knowledge or awareness of the
Warrantors, such warranty shall be deemed to include an additional statement
that there has been no enquiry whatsoever by the Warrantors or either of them
and the Purchaser agrees that the Warrantors have no obligation or duty to make
such enquiries
6.4 Each of the Warranties shall be treated as a separate warranty
6.5 Each of the Warrantors undertakes with the Purchaser that he will
promptly disclose in writing to the Purchaser any event or circumstance which
becomes known to him after the date of this agreement, which is inconsistent
with any of the Warranties or which might render any of them, or the contents of
the Disclosure Letter, misleading
6.6 The rights and remedies of the Purchaser in respect of any breach
of any of the Warranties shall not be affected by Completion,
6.7 None of the information supplied by the Company or their
professional advisers prior to the date of this agreement to any of the Vendors
or their agents, representatives or advisers in connection with the Warranties
and the contents of the Disclosure Letter, or otherwise in relation to the
business or affairs of the Company, shall be deemed a representation, warranty
or guarantee of its accuracy by the Company to the Vendors, and the Vendors
waive any claims against the Company which they might otherwise have in respect
of them
6.8 Notwithstanding any rule of law or equity to the contrary, any
release, waiver or compromise or any other arrangement of any kind whatsoever
which the Purchaser may agree to or effect in relation to any one or more of the
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Vendors in connection with this agreement, and in particular the Warranties,
shall not affect the rights and remedies of the Purchaser as regards the other
of the Vendors
6.8.1 This Agreement together with the Disclosure Letter constitutes
the whole agreement between the parties relating to its subject matter and
supersedes and extinguishes any prior drafts, agreements, undertakings,
representations, warranties, assurances and arrangements of any nature, whether
in writing or oral, relating to such subject matter
6.8.2 The Purchaser acknowledges that it has not been induced to
enter into this Agreement by any representation, warranty, promise or assurance
by the Vendors or any of them or any other person save for those contained in
this Agreement and in the Disclosure Letter. No fact or matter which renders
any of the Warranties incorrect or is inconsistent with any of them shall give
rise to any claim against the Vendors or any of them other than a claim against
the Warrantors for breach of contract in respect of the Warranties concerned and
(save in respect of fraud) the Purchaser shall not in respect of any such fact
or matter have any claim for misrepresentation
6.8.3 No variation of this Agreement shall be effective unless made
in writing and signed by each of the parties
6.9 The liability (if any) of the Warrantors shall be limited and
qualified in accordance with the provisions of Schedule 7
7. RETENTION AND JOINT ACCOUNT
7.1 The Retention shall on Completion, be paid into the Joint Account,
which shall be opened in the names of the Vendors' Solicitors and the
Purchaser's Solicitors at Lloyds Bank, St.Albans Branch and shall be dealt with
in accordance with the following sub-Clauses and as set out in the Retention
Account Instructions
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7.2 Subject as provided in Clauses 7.3 and 7.4 the Vendor's Solicitors
and the Purchaser's Solicitors shall pay the monies standing to the credit of
the Joint Account, plus accrued interest but less any bank charges, to the
Warrantors on the Payment Date, but they shall deduct from any such payment any
amount due under Clause 4.7 or permitted under Clause 5.3
7.3 If, prior to the Payment Date, the Purchaser makes any bona fide
Warranty Claim or claim under the Tax Deed (Tax Deed Claim) the Vendors'
Solicitors and the Purchaser's solicitors shall retain in the Joint Account
whichever is the lesser of:
7.3.1 (i) the amount standing to the credit of the Joint Account and
(ii) the amount of the Warranty Claim or Tax Deed claim
7.3.2 The balance (if any) of the Retention shall then be paid
to the Warrantors in accordance with Clause 7.2
7.4 If any sum is retained in the Joint Account after the Payment Date
in accordance with Clause 7.3, the Vendors' Solicitors and the Purchaser's
Solicitors shall continue to hold it in the Joint Account pending the settlement
or resolution of the Warranty Claim, or Tax Deed Claim. When the Warranty Claim
or Tax Deed Claim is settled or resolved and the amount payable to the Purchaser
or to the Company is determined, the Vendors' Solicitors and the Purchaser's
Solicitors shall within 14 days of the determination pay the appropriate amount
to the Purchaser out of the Joint Account (insofar as there is sufficient
standing to the credit of the Joint Account, together with accrued interest but
less any bank charges). Any amount standing to the credit of the Joint Account
after settlement or resolution of any Warranty Claim or Tax Deed Claim made
prior to the Payment Date shall be paid to the Warrantors in accordance with
Clause 7.2
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7.5 The payment of any sum to the Purchaser or to the Company in
accordance with Clause 7.4 in or towards satisfaction of any Warranty Claim or
Tax Deed Claim shall not in any way prejudice or affect any other rights or
remedies of the Purchaser for the purpose of recovering any amount due from the
Warrantors and not satisfied by payment made out of the Joint Account
7.6 If not paid to the Warrantors as authorized by the Retention
Account Instructions the interest accrued on the Retention shall belong to the
Warrantors and the Purchaser in proportion to the respective amounts of the
Retention released to each of them from time to time
7.7 The Warrantors and the Purchaser shall as and when necessary give
instructions to the Vendors' Solicitors and the Purchaser's Solicitors
respectively in order to procure compliance with Clauses 4.7, 5.3, 7.2, 7.3 and
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7.4. The Vendors' Solicitors and the Purchaser's Solicitors shall not (except
as provided by Clauses 4.7 and 5.3) be required to take any action with respect
to the Joint Account except on the written instructions of the Warrantors and
the Purchaser
7.8 Any payment out of the Joint Account shall be made in accordance
with the Retention Account Instructions but, if the Warrantors shall have
received notice of a Warranty Claim or Tax Deed Claim they shall only authorise
payment of any accrued interest on the amount of the difference between the
Retention and the amount of any Warranty Claim or Tax Deed Claim
7.9 If the Purchaser does not (having made a Warranty Claim or Tax Deed
Claim) for any period of two months or more, take any steps in pursuing any such
claim, then the Warrantors shall be entitled to the monies held in the Retention
Account
8 PENSIONS
18
The Vendors do not operate a Company Pension Scheme
9. RESTRICTIVE AGREEMENT
9.1 For the purpose of assuring to the Purchaser the full benefit of
the Business and the business and goodwill of the Company, each of the Vendors
undertakes by way of further consideration for the obligations of the Purchaser
under this agreement as separate and independent agreements that he or she will
not:
9.1.1 at any time after the date of Completion disclose to any
person, or himself or herself use for any purposes, and shall use his or her
best endeavours to prevent the publication or disclosure of, any
confidential information concerning the business, accounts or finances of
the Company or any of its clients' or customers' transaction or affairs,
which may, or may have, come to his or her knowledge.
9.1.2 at any time after the date of Completion either on his or
her own account or for any other person directly or indirectly solicit,
interfere with or endeavour to entice away from the Company any person who to
his or her knowledge is now or has during the two years preceding the date of
this agreement been a client, customer or employee of, or in the habit of
dealing with the Company;
9.1.3 for a period of ten years after Completion, without the
Purchaser's prior written consent either alone or jointly with or as manager,
agent for or employee of any person, directly or indirectly carry on or be
engaged or concerned or interested in the business of Refrigerator/Freezer
Manufacture, Refrigeration/Freezer systems, Temperature Control Systems,
Insulation systems including Vacuum Panel Manufacture or in any other business
similar to any business carried on by the Company, the Purchaser or any Company
within the Purchaser's Group of Companies at the date of this agreement anywhere
in the world;
19
9.1.4 while the restrictions aforesaid are considered by the
parties to be reasonable in all the circumstances it is agreed that if any such
restrictions taken together shall be adjudged to go beyond what is reasonable in
all the circumstances, for the protection of the interests of the Purchaser but
would be adjudged reasonable if part or parts of the wording thereof were
deleted, amended or qualified or the periods thereof were reduced or the range
of products or area dealt with were 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
10. VENDORS' PROTECTION
10.1 The Vendors' and the Purchaser agree that the provisions of Schedule 7
shall apply
10.2 The Purchaser agrees to make best endeavours to recover all outstanding
debts (as defined in Schedule 3 Warranty 1.6). The Purchaser agrees that if the
Warrantors have made payment to the Purchaser in respect of any outstanding
debt, and any amount is subsequently recovered by the Purchaser in respect of
such outstanding debt, the amount recovered will be refunded to the Warrantors
11. DETERMINATION PROCEDURE
11.1 Where any doubt or dispute arises as to the amount of any payment
payable under the terms of Clause 4 (except Clause 4.6) of this agreement and if
the amount has not been agreed or has not been agreed within such time as this
agreement specifies shall be allowed to reach such agreement, any party hereto
may refer the determination of that amount to an independent firm of chartered
accountants ("the Experts"), to be appointed in the absence of agreement between
the parties by the President of the Institute of Chartered Accountants in
England and Wales
20
11.2 Each party shall give the Experts access to all books or
records in their possession in relation to the matter in dispute and shall
instruct their advisers to make available to the Experts such accounts or
records or notes held by those advisers relating to the matter in dispute as the
Experts may require and generally shall provide the Experts with such other
information and assistance as the Experts may require
11.3 Each party shall be entitled to make representations to the
Experts, but if they do so, the Experts shall be obliged to disclose the same to
the other party and invite that party's comments on any information or material
so supplied
11.4 In making their determination of the amount, the Experts
shall act as experts and not as arbitrators and their decision shall, in the
absence of manifest material error, be final and binding on both parties. The
Experts fees and costs shall be borne by the parties in such proportions, as the
Experts may determine, or, failing any determination, equally. Any determination
shall be in writing and copies thereof shall be given to each of the parties
hereto
11.5 The Experts have power to award interest and for such
interest to run on a day by day basis from the date of Completion to the date of
actual payment as determined by the Experts
12. INDEMNITIES
Intentionally deleted
13. GENERAL
13.1 The Purchaser may, with the prior consent of the Partners (such
consent not to be unreasonably withheld or delayed), issue an announcement in
respect of the subject matter of this agreement
13.2 If any of the Shares shall, at any time be sold or transferred,
the benefit of each of the Warranties, given in this agreement and restrictive
agreements contained in Clause 9 hereof may be assigned to the purchaser or
21
transferee of those shares who shall accordingly be entitled to enforce each of
the Warranties, and the said restrictive agreements against the Vendors as if he
were named in this agreement as the Purchaser
13.3 This agreement shall be binding upon each party's successors and
assigns and personal representatives (as the case may be) but, except as
expressly provided above, none of the rights of the parties under this agreement
may be assigned on transferred
13.4 All expenses incurred by or on behalf of the parties, including
all fees of agents, representatives, solicitors, accountants and actuaries
employed by any of them in connection with the negotiation, preparation or
execution of this agreement shall be borne solely by the party who incurred the
liability and the Company shall not have any liability in respect of them
13.5 Any notice required to be given by any of the parties under this
agreement may be sent by post to the address of the addressee as set out in this
agreement or to such other address as the addressee may from time to time have
notified the other party in writing for the purpose of this Clause.
Communications sent by post shall be deemed to have been received forty-eight
hours after posting. In proving service by post it shall only be necessary to
prove that the communication was sent by recorded delivery and contained in an
envelope which was duly addressed and posted in accordance with this Clause.
13.6 The Vendors irrevocably appoint the Vendor's Solicitors as their agent
for service of any notices or process relating to proceedings relating to this
Agreement and agree that any failure by their process agent to notify them or
any of them of any notices or proceedings will not invalidate the notice or the
proceedings concerned
22
13.7 The Warrantors shall be entitled to set off against any amounts owing
by them to the Purchaser any amounts due and owing to the Warrantors but not
paid under the Lease or the Loan Notes
14. GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS
14.1 This agreement shall be governed by, and construed in accordance
with English law
14.2 Each party irrevocably agrees that the Courts of England shall
have exclusive jurisdiction in relation to any claim, dispute or difference
concerning this agreement and any matter arising therefrom
14.3 Each party irrevocably waives any right that it may have to object
to an action being brought in those Courts, to claim that the action has been
brought in an inconvenient forum, or to claim that those Courts do not have
jurisdiction
14.4 Each party agrees that, without preventing any other mode of
service, any document in an action (including, but not limited to, any writ of
summons or other originating process or any third or other party notice) may be
served on any party by being delivered to or left for that party at its address
for service of notices under Clause 13 and each party undertakes to maintain
such an address at all times in the United Kingdom and to notify the other party
in writing in advance of any change from time to time of the details of such
address in accordance with the manner prescribed for service of notice under
Clause 13
IN WITNESS the hands of the parties hereto the day and year first before written
23
EXECUTED AS A DEED
by DAVID JULIAN MINISTER
in the presence of :
EXECUTED AS A DEED
by DAVID JOHN MINISTER
in the presence of:
EXECUTED AS A DEED
by SHEILA MINISTER
in the presence of:
EXECUTED AS A DEED
by CAROL ANN MINISTER
in the presence of:
EXECUTED AS A DEED
by MICHAEL JOHN McMILLAN
in the presence of:
EXECUTED AS A DEED
by N.B.S. ULT LIMITED
Director Director/Secretary
24
SCHEDULE 1
----------
VENDORS' HOLDINGS
1A 1A 1B 1B
Voting Non-Voting Voting Non-Voting
David Julian Minister . . . . . 25
David John Minister 25
Sheila (David's wife) Minister 25
Carol (John's wife) Minister 25
M.J. McMillan (Works Foreman) 2
---- ---- ---- ----
25 27 25 25
====== ========== ====== ==========
25
SCHEDULE 2
----------
DETAILS OF THE COMPANY
D.J.M. Cryo-Research Limited
- ------------------------------
(Company Number: 2959499)
- ---------------------------
Directors : David Julian Minister
David John Minister
26
SCHEDULE 3
Warranties
1 ACCOUNTS
1.1 THE PRINCIPAL ACCOUNTS
1.1.1 The Principal Accounts relating to the Company were prepared in
accordance with the accounting policies set out therein which policies have
remained unchanged in the accounts for the last three accounting periods of the
Company
1.1.2 The Principal Accounts relating to the Business have been prepared on
the same basis as the accounts for the Business in the preceding three years and
properly reflect the financial condition of the Business and disclose all known
assets and liabilities of the Business at their dates
1.1.3 The Principal Accounts: of the Company
(a) give a true and fair view of the state of the Company's affairs at the Last
Accounts Date and of its profits for the year ended on that date:
(b) comply with the requirements of the Companies Acts
(c) comply with all SSAPs which were at the relevant time applicable to a United
Kingdom company;
(d) save as mentioned in the relevant accounts are not affected by any
extraordinary, exceptional or non-recurring item;
27
(e) make full provision or reserve for all liabilities and capital commitments
of the Company outstanding at the Last Accounts Date, including contingent,
unquantified or disputed liabilities;
(f) make provision or reserve, in accordance with the principles set out in the
notes included in the Principal Accounts, for all Taxation liable to be assessed
on the Company or for which it may be accountable including deferred taxation in
respect of the period ended on the Last Accounts Date
1.2 VALUATION OF STOCK-IN-TRADE
1.2.1 In the Principal Accounts of the Company for the three preceding
financial years the stock-in-trade of the Company have been treated in
accordance with the SSAP.9
1.2.2 In the Principal Accounts all redundant, obsolete and slow-moving
stock-in-trade has been written off or written down, as appropriate
1.3 DEPRECIATION OF FIXED ASSETS
1.3 In the Principal Accounts of the Company and the Business for the
three preceding financial years, the fixed assets (excluding the freehold
property and buildings) of the Company and the Business have been depreciated in
accordance with SSAP 12
1.4 DEFERRED TAXATION
1.4 Full provision for deferred taxation of the Company is made in the
Principal Accounts
1.5 ACCOUNTING REFERENCE DATE
28
1.5 The accounting reference date of the Company for the purposes of CAS 224
is 30th April and there has not at any time been any other such date
1.6 BOOK DEBTS
The Warrantors have no reason to believe that the amounts due from debtors
of the Company as of the date of Completion ("the Outstanding Debts")(less the
amount of any relevant provision or reserve, determined on the same basis as
that applied in the Principal Accounts and disclosed in the Disclosure Letter)
will not be recoverable in full in the ordinary course of business and in any
event not later than six months after the date of Completion. Any Outstanding
Debt remaining outstanding six months after the date of Completion, excluding
any debts due from New Brunswick .Scientific (U.K.) Ltd, New Brunswick
Scientific Benelux BV and New Brunswick Scientific Co., Inc., shall be deemed to
be irrecoverable and repayable by the Warrantors to the Purchasers.
1.7 BOOKS AND RECORDS
1.7 All the accounts, books, ledgers and financial records of the Company
(including those held by the advisers to the Company)
(a) are in its possession, and/or under their control;
(b) have to the best of the Warrantors' knowledge been fully properly and
accurately kept and completed;
(c) do not contain any material inaccuracies or discrepancies of any kind, to
the best of the Warrantors' knowledge;
(d) fairly reflect its trading transactions, and its financial, contractual and
trading position to the best of the Warrantors' knowledge
29
1.8 MANAGEMENT ACCOUNTS
1.8 A copy of the management accounts of the Company for the period to
(31st August 1999) is attached to the Disclosure Letter and the management
accounts have been prepared on bases consistent with the bases upon which the
previous management accounts have been prepared
2. CORPORATE MATTERS
2.1 DIRECTORS AND SHADOW DIRECTORS
2.1.1 The only directors of the Company are the persons whose names are
listed in relation to the Company in Schedule 2
2.1.2 No person is a shadow director (within the meaning of CA57410) of the
Company
2.2 SUBSIDIARIES, ASSOCIATIONS AND BRANCHES
2.2.1 The Company:
(a) is not the holder or beneficial owner of or has agreed to acquire any
share or loan capital of any company (whether incorporated in the United Kingdom
or elsewhere);
(b) has not outside the United Kingdom any branch, agency or place of
business, or any permanent establishment (as that expression is defined in the
relevant double taxation relief order current at the date of this agreement)
2.3 OPTIONS OVER GROUP COMPANY'S CAPITAL
30
2.3 Except as required by this agreement, there are no agreements or
arrangements in force which provide for the present or future issue, allotment
or transfer of or grant to any person the right (whether conditional or
otherwise to call for the issue, allotment or transfer of any share or loan
capital of the Company (including any option or right of pre-emption or
conversion)
2.4 NEW ISSUES OF CAPITAL
2.4.1 No share or loan capital has been issued or allotted, or agreed to be
issued or allotted, by the Company since the Last Accounts date
2.5 COMMISSIONS
2.5.1 No one is entitled to receive from the Company any finder's fee,
brokerage or other commission in connection with the sale and purchase of the
Shares under this agreement
2.6 MEMORANDUM AND ARTICLES OF ASSOCIATION, STATUTORY BOOKS AND RESOLUTIONS
2.6.1 The copy of the memorandum and articles of association of the Company
attached to the Disclosure Letter is accurate and complete in all respects and
has embodied in it or annexed to it a copy of every such resolution as is
referred to in CAS380
2.6.2 The register of members and other statutory books of the Company have
been properly kept and contain an accurate and complete record of the matters
with which they should deal
2.6.3 No notice of allegation that any of the foregoing is incorrect or
should be rectified has been received
31
2.6.4. Since the Last Accounts Date no alteration has been made to the
memorandum or articles of association of the Company and no resolution of any
kind of the shareholders of the Company has been passed (other than resolutions
relating to declaration of dividends and routine business at annual general
meetings)
2.7 DOCUMENTS FILED
2.7.1 All returns, particulars, resolutions and documents required by the
Companies Acts to be filed with the Registrar of Companies, or any other
authority, in respect of the Company have been duly filed and were correct;
2.7.2 All charges in favour of the Company have (if appropriate) been
registered in accordance with the provisions of CA ss 395, 409, 410 and 424
2.8 POSSESSION OF DOCUMENTS
2.8.1 An executed copy of all subsisting written agreements to which the
Company is a party, and the original copies of all other documents which are in
force or otherwise relevant to the Company and which are owned by or which ought
to be in the possession of the Company are in its possession or under its
control
2.9 INVESTIGATIONS
2.9.1 So far as the Warrantors are aware there are not pending, or in
existence, any investigations or enquiries by, or on behalf of any governmental
or other body in respect of the affairs of the Company
2.10 INFORMATION DISCLOSED TO PURCHASER CORRECT
32
2.10.1 All written information given by any of the Vendors, the Vendors'
Solicitors or the Vendors' Accountants to the Purchaser, the Purchaser's
Solicitors or the Purchaser's Accountants relating to the business, activities,
affairs, or assets or liabilities of the Company and the Business was, when
given accurate in all material respects, and has not changed in any material
respect
2.10.2 There are no material facts or circumstances, in relation to the
assets, business or financial condition of the Company and the Business, which
have not been fully and fairly disclosed to the Purchaser or the Purchaser's
Solicitors, and which, if disclosed, might reasonably have been expected to
affect the decision of the Purchaser to enter into this agreement
For the purposes of this clause, "material" shall mean a fact or
circumstance giving rise either directly or indirectly to a loss of a value
exceeding 10,000.00 and the warranties are given subject to the proviso that
they are made to the best of the knowledge of the Warrantors
3. TAXATION
3.1 ADMINISTRATION
3.1.1. All returns, computations and payments which should be or should have
been made by the Company for any Taxation purpose have been made within the
requisite periods and were in all material respects up-to-date, correct and on a
proper basis and none of them is or is likely to be the subject of any material
dispute with the Inland Revenue, Customs & Excise or other Taxation authorities
33
3.1.2 The Company has not since the Last Accounts Date taken any action or
become aware of any matter which has had, or might have, the result of altering,
prejudicing or in any way disturbing any arrangement or agreement which it has
previously negotiated with the Commissioners for Inland Revenue, the
Commissioners of Customs and exercise or other Taxation authorities (or which
would materially affect the Warranty set out in clause 3.1.1.)
-
3.1.3 The Company has not since the Last Accounts date, paid or so far as
the Warrantors are aware become liable to pay any penalty or interest charged by
virtue of the provisions of TMA or any other Taxation statute
3.1.4 The Company has not received any payment from any taxation authorities
to which it is not entitled nor any assessment which so far as the Warrantors
are aware understates its liability to taxation
3.1.5 The Company has never been the subject of an investigation or
discovery by or involving any of the special investigations units of the Inland
Revenue or Customs & Excise and so far as the Warrantors are aware there are no
circumstances existing which make it likely that an investigation or discovery
will be made
3.2 TAXATION CLAIMS, LIABILITIES AND RELIEFS
3.3 DISTRIBUTION AND DEDUCTIBILITY OF PAYMENTS
3.3.1 The Company has not repaid, or agreed to repay or redeemed or agreed
to redeem its share capital or capitalised or agreed to capitalise in the form
of redeemable shares or debentures any profits or reserves or any class or
description
3.3.2 The Company has not since the Last Accounts Date, incurred expenditure
which will not be wholly deductible in computing or against profits as a trading
expense or expense of management, or as a charge on income, or in computing
income for the purposes of Schedule A,
3.3.3 The Company has not made any payments to, or provided any benefits
for, any officer or employee, or former officer or employee, of the Company
which would not be an allowable deduction for corporation tax purposes
(including any payment made directly or indirectly in consideration of or
otherwise in connection with, the termination of any office or employment)
3.3.4 The Company has not been released from the whole or any part of any
debt for which a deduction has previously been allowed in computing the taxable
profits of its trade
3.4 CARRY FORWARD OF LOSSES AND ACT
There are no tax losses to be carried forward by the Company.
3.5 CLOSE COMPANIES
3.5.1 The Company has, at all times upon the date of Completion, been a
trading company as defined in ICTA 1988 Schedule 19 para 17 (Apportionment of
income of close companies: meaning of 'trading company').
3.5.2 No distribution within ICTA S 418 ('Distribution' to include certain
expenses of close companies) has been made by the Company
34
3.5.3 Any directors loan accounts of the Company have always been in credit,
and any such accounts outstanding will be settled by the Company prior to
Completion
3.5.4 The Company has never released or written off any loans made to
participants (ICTA S 421)
3.6 CAPITAL ALLOWANCES
3.6.1 The Company has within its Corporation Tax Returns up to 30th April
1999 notified the Inspector of Taxes of all expenditures up to 30th April 1999
qualifying for plant and machinery capital allowances which it has incurred and
all such plant and machinery has qualified or will qualify for full writing down
allowances
3.7 TRANSACTIONS NOT AT ARM'S LENGTH
3.7.1 Save as disclosed in the notes to Principal Accounts of the Company
under the heading "Transactions Involving Directors" the Company has not carried
out nor been engaged in, any transaction or arrangement to which the provisions
of ICTA S 770 (Sale etc at an undervalue or overvalue) have been or may be
applied
3.7.2 Save as disclosed in the notes to Principal Accounts of the Company
under the heading "Transactions Involving Directors" the Company does not own
nor has agreed to acquire any asset, or has received or agreed to receive any
services or facilities (including without limitation the benefit of any licences
or agreements), the consideration for the acquisition or provision of which was
or will be in excess of its market value or determined otherwise than on an
arm's length basis
35
3.7.3 Save as disclosed in the notes to Principal Accounts of the Company
under the heading "Transactions Involving Directors" the Company has not
disposed of nor acquired any asset in such circumstances that the provisions of
TCGA S 17 (Disposals and acquisitions treated as made at market value) could
apply
3.8 BASE VALUES AND ACQUISITION COSTS
3.9 TAX AVOIDANCE
3.9.1 The Company has not since the Last Accounts Date engaged in or been a
party to any scheme or arrangement of which the main purpose, or one of the main
purposes, was the avoidance of or a reduction in liability of the Company to
Taxation:
3.9.2 The Company has not since the Last Accounts date been a party to any
transaction other than transactions in respect of which all necessary consents
or clearances required by the Company have been obtained:
3.10 DEPRECIATORY TRANSACTIONS
3.11 UNREMITTABLE INCOME AND CAPITAL GAINS
3.11.1 The Company has not either received or so far as the Warrantors are
aware become entitled to any income or gain which is 'unremittableincome' or a
gain on a foreign asset subject to remittance delay.
3.12 DEMERGERS AND PURCHASE OF OWN SHARES
3.12.1 The Company has not been engaged in or been a party to any of the
transactions set out in ICTA S 213 to 218 (Demergers) or has made or received a
36
chargeable payment as defined S 214 (Chargeable payments connected with exempt
distributions)
3.12.2 The Company has not at any time redeemed, repaid or purchased or
agreed to redeem, repay or purchase, any of its own shares
3.13 TRANSFER OF OVERSEAS TRADE
3.14 SALE AND LEASE-BACK OF LAND
3.14 The Company has not since the Last Accounts Date entered into any
transaction to which the provisions of ICTA S 36 (sale with a right to
repurchase) ICTA S 780 (Sale and lease-back: taxation of consideration received)
have been or could be applied
3.15 STOCK DIVIDENDS AND DEEP DISCOUNT SECURITIES
3.15.1 The Company has not issued any share capital to which the provisions
of ICTAs249 (Stock dividends treated as income) or TCGA S 141 or 5 142 (Stock
dividends: consideration for new holding) could apply, nor does the Company own
any such share capital
3.15.2 The Company has not at any time since 13 March 1984 owned or issued
any deep discount security within the meaning of ICTA Sched 4 (Deep discount
securities) as amended by Finance Act 1996
3.16 CONTROLLED FOREIGN COMPANIES
3.17 CHARGEABLE GAINS
Save as disclosed in the Disclosure Letter if each of the capital assets of the
Company were disposed of for a consideration equal to the book value of that
asset in or adopted for the purpose of the Last Accounts of the Company no
liability to Corporation Tax on chargeable gains would arise by reason of any
such disposal
3.18 CAPITAL LOSSES
3.18 The Company has not incurred a capital loss to which the provisions of
TCGA S 18(3) (Transactions between connected persons) are applicable
3.19 ACQUISITIONS FROM GROUP MEMBERS
3.20 REPLACEMENT OF BUSINESS ASSETS
3.20.1 The Company has not made a claim under TCGA S 23 (receipt of
compensation and insurance money not treated as a disposal), S 152 (Replacement
of business assets: Roll-over relief), S 153 (Assets only partly replaced), S
154 (New assets which are depreciating assets), S 175 (Replacement of business
assets by members of a group) or S 247 (Rollover relief on compulsory
acquisition) which would affect the amount of the chargeable gain or allowance
loss which would but for such claim have arisen on a disposal of any of its
assets
3.21 GIFTS INVOLVING GROUP COMPANIES
3.21.1 The Company has not held or holds shares in a company which has made
any such transfer as is referred to in TCGA S 125 (Shares in close company
transferring assets at an undervalue); and the Company has not received any
assets by way of gift as mentioned in TCGA S 282 (Gifts: recovery of tax from
donee)
3.22 GAINS ACCRUING TO NON-RESIDENT COMPANIES AND PERSONS
37
3.23 VALUE ADDED TAX
3.23.1 The Company
(a) has duly registered and is a taxable person for the purposes of value added
tax;
(b) has complied in all material respects with all statutory requirements,
orders, provisions, directions or conditions relating to value added tax;
(c) maintains complete, correct and up-to-date records for the purposes of the
relevant legislation;
(d) is not in arrears with any payment or returns, or liable to any abnormal or
non-routine payment, or any forfeiture or penalty, or to the operation of any
penal provision;
(e) has no amounts outstanding from Customs & Excise other than the last return;
(f) has completed returns on a quarterly basis
(g) has not been required by the Commissioners of Customs and Excise to give
security:
(h) has not applied for treatment as a member of a group which includes any
other company;
(i) is not and has not agreed to become an agent, manager or factor (for the
purposes of VATA s47 (agents, etc) of any person who is not resident in the
United Kingdom
38
3.23.2 No claim for bad debt relief has been or may be made by the Company
under VATA 5 36(bad debts)
3.23.3 The Company has not within the period of twelve months preceding the
date of this agreement received a surcharge liability notice under VATA S 59
(the default surcharge)
3.23.4 The Company has not received a penalty liability notice under VATA S
64 (Persistent misdeclaration resulting in understatements or overclaims)
3.23.5 The Company is not aware of any present or pending VAT inspection
3.23.6 The Company is not partially exempt for VAT purposes
3.23.7 The Company has not made any election under VATA Schedule 10 (waive
exemption in respect of any grant of any interest in land)
3.24 INHERITANCE TAX
3.24.1 No transfer of value (as defined in IHTA S 3 (Transfers of Value) has
at any time been made by the Company
3.24.2 There is not outstanding any Inland Revenue charge for unpaid
inheritance tax (as provided by IHTA S 257 and 238 (Inland Revenue charge for
unpaid tax)) over any asset of the Company, or in relation to any shares in the
capital of the Company
3.24.3 There are not in existence any circumstances whereby any power
mentioned in IHTA S 212 (Powers to raise tax) could be exercised in relation to
39
any shares, securities or other assets of the Company, or could be exercised but
for IHTA S 204(6) (Limitation of liability)
3.25 STAMP DUTY
3.25.1 Within the five years ending on the date of Completion, the Company
has not made any claim for relief or exemption under FA 1930 S 42 (Relief from
transfer stamp duty in case of transfer of property as between associated
companies) or FA 1973 Schedule 19 Part V (Stamp duty on documents relating to
chargeable transactions of capital companies)
3.26 REORGANISATION
3.27 EMPLOYEES' TAXATION
3.27.1 All income tax under the PAYE system and payments due in respect of
employees' contributions to National Insurance have been deducted from all
payments made or treated as made by the Company and the Business and (together
with any employer's contributions) have been duly paid by the Company and the
Business to the Inland Revenue in the appropriate manner and the Company and the
Business has complied with all its reporting obligations in connection with
expense payments and benefits provided by other persons for employees and
directors of the Company
3.28 TAX DEED
See Tax Deed
40
4 FINANCE
4.1 CAPITAL COMMITMENTS
4.1.1 There were no commitments on capital account outstanding at the Last
Accounts Date exceeding 5,000.00 in value and since the Last Accounts Date the
Company has not made or agreed to make any capital expenditure, exceeding
5,000.00 in value nor incurred or agreed to incur any capital commitments nor
has it disposed of or realised any capital assets or any interest therein, save
as agreed and approved by the Purchaser
4.2 Dividends and distributions
4.2.1 Except as set out in the Disclosure Letter since the Last
Accounts Date no dividend or other distribution (as defined in
ICTA Part VI Ch II as extended by ICTA S 418) has been or is treated as
having been declared, made or paid by the Company.
4.2.2 All dividends or distributions declared, made or paid by the
Company have been declared, made or paid in accordance with its
articles of association and the applicable provisions of the Companies
Acts
4.2.3 No dividends are due to be paid by the Company to any party
4.4 LOANS BY AND DEBTS DUE TO GROUP COMPANIES
44 The Company has not lent any money which has not been repaid to
it, or owns the benefit of any debt (whether or not due for payment), other than
debts which have arisen in the ordinary course of its business; and the Company
has not made any loan or quasi-loan contrary to the Companies Acts
4.5 LIABILITIES
4.5.1 There are no liabilities (including contingent liabilities) which are
outstanding on the part of the Company other than those liabilities disclosed in
the Principal Accounts or incurred in the ordinary and proper course of trading
since the Last Accounts Date.
41
4.5.2 There has been no exercise, purported exercise or claim for any
charge, lien, encumbrance or equity over any of the fixed assets of the Company
and the Business; and so far as the Warrantors are aware there is no dispute
directly or indirectly relating to any of its fixed assets.
4.5.3 The Company and the Business have not been the tenant of, or a
guarantor in respect of, any leasehold property other than the Property
4.6 BANK ACCOUNTS
4.6 A statement of the bank accounts of the Company up to the working day
prior to the date of Completion together with a reconciliation statement has
been annexed to the Disclosure Letter.
4.7 CONTINUATION OF FACILITIES
4.7 Except as set out in the Disclosure Letter there are no facilities
relating to debentures, acceptance of credit, overdrafts, loans or other
financial facilities outstanding in relation to the Company
4.8 GOVERNMENT GRANTS
4.8.1 Full details of all grants, subsidies or financial assistance applied
for or received by the Company and/or the Business from any governmental
department or agency or any local or other authority are set out in the
Disclosure Letter.
4.8.2 The Company and the Business have not done nor omitted to do any act
or thing which could result in all or any part of any investment grant,
employment subsidy or other similar payment made, or due to be made, to it
becoming repayable or being forfeited or withheld in whole or in part.
42
5. TRADING
5.1 CHANGES SINCE LAST ACCOUNTS DATE
5.1. Since the Last Accounts Date.'
(a) except as contemplated in connection with this Agreement the business of
the Company and the Business have been continued in the ordinary and normal
course;
(b) there has been no deterioration in the turnover or the financial or
trading position of the Company and the Business;
(c) so far as the Warrantors are aware, the Company and the Business have
-
not by doing nor omitting to do anything prejudiced its goodwill;
(d) no part of the business of the Company and the Business have been
affected by any abnormal factor not affecting similar businesses to a like
extent;
(e) the Company and the Business have paid its creditors in
accordance with accepted credit terms;
5.2 VENDORS' OTHER INTERESTS AND LIABILITIES TO THE COMPANY
5.2.1 The Vendors do not have any rights or interests, directly or
indirectly, in any business other than those now carried on by the Company or
the Business which are or are likely to be or become competitive with the
business of the Company, save as registered holder or beneficial owner of any
class of securities of any company which is listed on the Stock Exchange or
dealt in on the Alternative Investment Market and in respect of which a Vendor
holds and is beneficially interested in less than 3 per cent of any single class
of the securities in that company.
5.2.2 There is no outstanding indebtedness of any Vendor to the Company.
43
5.3 EFFECT OF SALE OF SHARES
5.3.1 The Warrantors have not been told by any person that, and are not
aware of any reason (contracted or otherwise) why after the date of Completion
(whether by reason of an existing agreement or arrangement or otherwise) or as a
result of the proposed acquisition of the Company by the Purchaser:
(a) any supplier of the Company will cease supplying it or may substantially
reduce its supplies to it;
(b) any customer of the Company will cease to deal with it or may
substantially reduce its existing level of business with it;
(c) Except as contemplated in connection with this Agreement, any officer or
-
senior employee of the Company will leave.
5.3.2 Compliance with the terms of this agreement does not and will not:
(a) conflict with, or result in the breach of; or constitute a default
under, any of the terms, conditions or provisions of any agreement or instrument
to which the Company is a party, or any provision of the memorandum or articles
of association of the Company or any charge, encumbrance, lease, contract,
order, judgment, decree, award, injunction, regulation or other restriction or
obligation of any kind or character by which or to which any asset of the
Company is bound or subject;
(b) relieve any person from any obligation to the Company (whether
contractual or otherwise), or enable any person to determine any such obligation
or any right or benefit enjoyed by the Company, or to exercise any right,
whether under an agreement with or otherwise in respect of the Company;
(c) result in the creation, imposition, crystallisation or enforcement of
any charge or encumbrance whatsoever on any of the assets of the Company;
(d) result in any present or future indebtedness of the Company becoming due
and payable or capable of being declared due and payable prior to its stated
maturity.
5.4 CONDUCT OF BUSINESSES IN ACCORDANCE WITH MEMORANDUM AND ARTICLES OF
ASSOCIATION
5.4.1 So far as the Warrantors are aware, the Company has at all times
carried on business and conducted its affairs in all respects in accordance with
its memorandum and articles of association for the time being in force and any
other documents to which it is or has been a party.
5.4.2 The Company is duly qualified to carry on business in all
jurisdictions in which it now carries on business.
5.5 JOINT VENTURES AND PARTNERSHIP
5.5 The Company and the Partners in the Business are not nor have they
agreed to become a member of any joint venture, consortium, partnership or other
unincorporated association; and the Company is not nor has agreed to become a
party to any agreement or arrangement for sharing commissions or other income.
5.6 AGREEMENTS RELATING TO THE MANAGEMENT AND BUSINESS
5.7 AGENCY AGREEMENTS AND AGREEMENTS RESTRICTING BUSINESS
5.7.1 Except for arrangements with New Brunswick Scientific (U.K) Limited,
-
and New Brunswick Scientific Benelux BV the Company and the Business are not a
party to any agency, distributorship, marketing, purchasing, manufacturing or
licensing agreement or arrangement, or any restrictive trading or other
agreement or arrangement pursuant to which any part of its business is carried
44
on, or which in any way restricts its freedom to carry on the whole or any part
of its business in any part of the world in such manner as it thinks fit.
5.7.2 The Company is not a party to any undertaking or assurances given to
any court or governmental agency which is still in force.
5.8 UNFAIR TRADE AND RESTRICTIVE PRACTICES
5.8.1 So far as the Warrantors are aware the Company has not committed nor
omitted to do any act or thing which could give rise to any material fine or
penalty; nor, so far as the Warrantors are aware, is the Company a party to any
agreement, practice or arrangement which in whole or in part:
(a) contravenes the provisions of the Trade Descriptions Acts 1968;
(b) would or might result in a reference of a consumer trade practice,
within the meaning of the Fair Trading Act 1973 5 13, or be liable to reference
to the Consumer Protection Advisory Committee under Part II of the said Act;
(c) contravenes the provisions of the Consumer Credit Act 1974;
(d) contravenes or is invalidated (in whole or in part) by or is subject to
registration under the Restrictive Trade Practices Acts 1976 and
1977;
(e) contravenes any provisions of the Treaty of Rome;
(f) contravenes any other anti-trust, anti-monopoly or anti-cartel
legislation or regulations.
5.8.2 So far as the Warrantors are aware the Company has not engaged in any
anti-competitive practice as defined in the Competition Act 1980.
5.9 LITIGATION, DISPUTES AND WINDING UP
45
5.9.1 The Company and the Business are not engaged in any litigation or
arbitration proceedings as plaintiff pursuer or defendant or defender; there are
no proceedings pending or so far as the Warrantors are aware threatened either
by or against the Business or Company; and so far as the Warrantors are aware
there are no circumstances which are likely to give rise to any litigation or
arbitration
5.9.2 There is no dispute with any revenue or other official department in
the United Kingdom or elsewhere, in relation to the affairs of the Business or
the Company, and so far as the Warrantors are aware there are no facts which may
give rise to any dispute.
5.9.3 There are no claims pending or threatened against the Business or the
Company by an employee or workman or third party, in respect of any accident or
injury, which are not fully covered by insurance.
5.9.4 No order has been made or petition presented or resolution passed for
the winding up of the Company or any of their property or assets; nor has any
distress, execution or other process been levied in respect of the
Company which remains undischarged; nor is there any unfulfilled or unsatisfied
judgment, decree or court order outstanding against the Company.
5.10 COMPLIANCE WITH STATUTES
5.10.1 So far as the Warrantors are aware the Company has not committed or
---
omitted to do any act or thing the commission or omission of which is or could
be in contravention of any act, order, regulation or the like (whether of the
United Kingdom or elsewhere) giving rise to any fine, penalty, default
proceedings or other liability on its part.
46
5.10.2 So far as the Warrantors are aware the Company has conducted and is
conducting its business in all respects in accordance with all applicable laws
and regulations whether of the United Kingdom or elsewhere.
5.10.3 The Company does not carry on (nor has, at any time when not an
authorised person under Chapter III, Financial Services Act 1986, carried on)
investment business in the United Kingdom within the meaning of Financial
Services Act 1986, 5 1.
5.11 DATA PROTECTION ACT 1998
5.11.1 The Company has not registered nor applied to register itself under
the Data Protection Act 1998
5.11.2 Personal data held by the Company is not held on computer
5.12 DOCUMENTS STAMPED
5.12 Except as set out in the Disclosure Letter all documents which in any
way affect the right, title or interest of the Company in or to any of its
property, undertaking or assets, or to which the Company is a party, and which
attract stamp duty have been duly stamped within the requisite period for
stamping.
5.13 BUSINESS NAMES
5.13 ( i ) The Company does not use a name for any purpose other than
its full corporate name, or DJM Cryo-Research
(ii) The Business name of D.J.M. Fabrications is the sole trading
name of the Business and so far as the Warrantors are aware, the only business
-
so named
5.14 TRANSACTIONS INVOLVING DIRECTORS
47
5.15 POWERS OF ATTORNEY AND AUTHORITY
5.15.1 No power of attorney given by the Company or the Business is in
force.
5.15.2 There are not outstanding any authorities (express or implied) by
which any person may enter into any contract or commitment to do anything on
behalf of the Company and the Business
5.16 LICENCES AND CONSENTS
5.16.1 So far as the Warrantors are aware the Company and the Business have
obtained all necessary licences and consents from any person, authority or body
for the proper carrying on of its business (full particulars of each licence and
consent being set out in the Disclosure Letter) and all the licences and
consents are valid and subsisting.
5.16.2 So far as the Warrantors are aware the Company and the Business are
not in breach of any of the material terms or conditions of any of the licences
or consents; and there are no factors that might in any way prejudice the
continuation or renewal of any of them.
5.17 SUBSISTING CONTRACTS
5.17.1 The Disclosure Letter contains accurate particulars of all the
contracts and other engagements, whether written or oral, to which the Company
and the Business are a party at the date of this agreement.
5.18 DEFAULTS UNDER AGREEMENTS BY THE COMPANY
5.18.1 The Company is not
(a) in default under any agreement or covenant to which it
is a party or in respect of any other obligations or restrictions binding upon
it;
(b) in default under any obligations existing by reason of membership of any
association or body;
(c) So far as the Warrantors are aware liable in respect of any
representation or warranty (whether express or implied) or any matter giving
rise to a duty of care on its part.
(d) so far as the Warrantors are aware, in breach of the provisions of the
Late Payment of Commercial Debts (Interest) Act 1998.
5.18.2 No threat or claim of default under any agreement, instrument or
arrangement to which the Company or the Business is a party has been made and
is outstanding against it;
5.19 OTHER PARTY'S DEFAULTS
5.19 No party to any agreement with or under an obligation to the Company or
the Business is in default under it, being a default which would be material in
the context of its financial or trading position; and so far as the Warrantors
are aware, there are no circumstances likely to give rise to such a default.
-
5.20 OUTSTANDING OFFERS
5.20 No offer, tender or the like is outstanding which is capable of being
converted into an obligation of the Business or Company by acceptance or other
act of some other person.
5.21 DEFECTIVE PRODUCTS
5.21.1 The Company and the Business have not manufactured, sold or supplied
products which are or were or will become in any respect dangerous faulty or
defective or which do not comply in any respect with any warranties or
representations expressly or impliedly made by it or with all applicable
regulations, standards and requirements Provided that this Warranty shall not
apply to products supplied to New Brunswick Scientific (UK) Limited or New
48
Brunswick Benelux BV and provided further that this Warranty shall only apply to
the extent that the Purchasers are unable to recover any losses under a policy
of insurance
5.22 SERVICE LIABILITIES
5.22 Save as set out in the Disclosure Letter the Company and the Business
are not subject to any liability or obligation (save as may be implied by law or
in the terms and conditions of sale) to service, repair, maintain, take back or
not do anything in respect of any goods that have been or are after the date of
this agreement delivered by it other than in the normal course of business
5.23 GUARANTEES AND INDEMNITIES
5.23 There is not now outstanding in respect of the Company or the Business any
guarantee, or agreement for indemnity or for suretyship, given by it or for its
accommodation
6. EMPLOYMENT
6.1. EMPLOYEES AND TERMS OF EMPLOYMENT
6.1.1. Full particulars of the identities, dates of commencement of employment,
or appointment to office, and terms and conditions of employment of all the
employees and officers of the Company, including without limitation profit
sharing, commission or discretionary bonus arrangements or other benefits, are
fully and accurately set out in the Disclosure Bundle
6.1.2. There are no agreements or other arrangements (whether or not legally
binding) between the Company or the Business and any trade union or other body
representing employees
49
6.1.3. No contract of service exists between the Company and the Business and a
director or employee in relation to which any relevant requirement of CA s 319
have not been fulfilled.
6.2. BONUS SCHEMES
6.2. 1. There are no schemes in operation by, or in relation to, the Company or
the Business whereunder any employee of the Company or the Business is entitled
to a commission or remuneration of any other sort, calculated by reference to
the whole or part of the turnover, profits or sales of the Company or the
Business
6.2.2. The Company has not registered a profit-related pay scheme under the
provisions of ICTA Part V Chapter 111
6.3. CHANGES IN REMUNERATION
6.3. 1. During the period to which the Principal Accounts relate and since the
Last Accounts Date or (whether employment or holding of office commenced after
the beginning of such period) since the commencing date of the employment or
holding of office:
(a) save as increased in the normal course of business no change has
been made in the rate of the remuneration, or the emoluments or pension benefits
or any other benefits or any officer, ex-officer or senior executive of the
Company or the Business
(b) no change has been made in any other terms of employment of any
officer or senior executive
6.3.2. Save as set out in the Disclosure Letter,the Company and the Business is
-
not bound or accustomed to pay any moneys other than in respect of remuneration
or emoluments of employment or pension benefits to or for the benefit of any
officer or employee of the Company or the Business
50
6.3.3. Excepting herefrom John Minister, no negotiations for any increase in the
remuneration or benefits of any officer or employee of the Company or the
Business are current
6.4 TERMINATION OF CONTRACTS OF EMPLOYMENT
6.4.1 No current employee of the Company has given or received notice
terminating his or her employment, with the Company
6.5. INDUSTRIAL DISPUTES AND NEGOTIATIONS
6.5.1 As far as the Warrantors are aware, none of the Company's or the
Business's employees is involved in any industrial dispute, and there are no
facts known to the Warrantors which might suggest that there may be any
industrial dispute involving the Company or the Business or that any of the
provisions of this agreement made lead to any such industrial dispute.
6.6. INDUSTRIAL AGREEMENTS
6.7 REDUNDANCIES
6.8 PENSIONS
There are no Pension Schemes
7. ASSETS
7.1 OWNERSHIP OF ASSETS
7. 1. 1. Except as contemplated in connection with this Agreement and referred
to in the Disclosure Letter, the Company and the Business owned at the Last
Accounts Date and had good and marketable title to and (except for current
assets subsequently sold or realised in the ordinary course of business) still
51
own and have good and marketable title to all assets included in the Principal
Accounts and to all assets acquired since the Last Accounts Date and not
subsequently sold or realised as aforesaid
7.1.2. The Company and the Business have not created or granted or agreed to
create or grant any security interest or other encumbrance in respect of any of
the fixed assets included in the Principal Accounts or acquired or agreed to be
acquired since the Last Accounts Date, otherwise than in the ordinary course of
its business
7.1.3. Save as disclosed in the Principal Accounts, none of the assets,
undertaking, goodwill or uncalled capital of the Company is subject to, and the
Company has not agreed to grant, any option, charge (fixed or floating) lien or
encumbrances, or right of pre-emption.
7.2. ASSETS SUFFICIENT FOR THE BUSINESS
7.3. STOCKS
7.4. RETENTION OF TITLE
7.5. INSURANCE
7.5.1 The insurance policies of the Company are set out in the Disclosure Bundle
and are in full force and effect, and so far as the Warrantors are aware nothing
has been done or omitted to be done which could make any policy or insurance
void or voidable or which is likely to result in an increase in premium.
7.5.2. No claim is outstanding under any of the said policies and, so far as the
Warrantors are aware, no circumstances exist which are likely to give rise to
such a claim.
7.6. LEASED ASSETS
7.7 PLANT IN WORKING ORDER
7.7.1 So far as the Warrantors are aware the plant, machinery, vehicles and
other equipment used in connection with the business of the Company and the
52
Business are in a good and safe state of repair and condition and satisfactory
working order and have been regularly and properly maintained;
7.7.2 Copies of Maintenance contracts of the Company are contained in the
Disclosure Bundle.
7.8 INTELLECTUAL PROPERTY RIGHTS AND TRADE SECRETS
7.8.1 All Intellectual Property Rights used by the Company in connection
with its business are in full force and effect and are vested in and
beneficially owned by it.
7.8.2 No right or licence has been granted to any person by the Company to
use in any manner or to do anything which would or might otherwise infringe any
of the Intellectual Property Rights of the Company
7.8.3. So far as the Warrantors are aware there are no current, pending or
proposed Patent or other protection of Intellectual Property rights which relate
to any products or system which the Company or Business are or may be
infringing. There is nothing under development by the Company which, so far as
the Warrantors are aware, might infringe any existing or pending patent
7.8.4 So far as the Warrantors are aware the business of the Company or the
Business (and of any licensee under a licence granted by the Company and the
Business) as now carried on do not infringe any Intellectual Property Right of
any other person (or would not do so if the same were valid) or give rise to a
liability to pay compensation pursuant to the Patents Act 1977 ss 40 and 41 and
all licences to the Company and in respect of any such right are in full force
and effect.
7.8.5 Except as set out in the Disclosure Letter, the Company and the
Business have not (otherwise than in the ordinary and normal course of business)
53
disclosed or permitted to be disclosed or undertaken or arranged to disclose to
any person other than the Purchaser any of its know-how, trade secrets,
confidential information, price lists or lists of customers or suppliers.
7.8.6 The Company and the Business are not a party to any secrecy
agreement or agreement which may restrict the use or disclosure of information.
7.9 MOTOR VEHICLES
The Company does not own lease use or control any motor vehicle, save
for one service van.
8.1 PLANNING MATTERS
The Warrantors have received no notices that the current use of the
Property contravenes the Planning Acts.
8.2 STATUTORY OBLIGATIONS
8.2.1 The Warrantors have received no notice that the Company or Business
are not complying with all applicable statutory and by-law requirements with
respect to the Public Health Acts and the Offices Shops and Railway Premises Act
1963 and the Fire Precautions Act 1971, the Health and Safety at Work (etc) Act
1974, the Shops Act 1950 and 1965, the Water Resources Act 1991, the Water
Industry Act 1991 and all Environmental Legislation (as the same are from time
to time varied or amended) and all regulations, rules and delegated legislation
thereunder
8.3 POLLUTION AND ENVIRONMENT
8.3.1 There have been no complaints or disputes made known to the Warrantors
regarding the use of the Property in so far as they affect the Environment by
reason of noise or the emission of any substance or any other matters defined as
54
"statutory nuisances" by Section 79 of the Environmental Protection Act 1990
into the Environment and there are no facts or circumstances which may lead to
any such complaint or dispute.
8.3.2 There have been no complaints made known to the Warrantors, and the
Warrantors are not aware of any claims, investigations or proceedings threatened
or instituted against the Company or Business or its directors relating to an
alleged breach of Environmental Legislation or to the Business or Company's use
or occupation of the Property or in respect of any land premises or buildings
formerly owned or occupied by the Company or the Business and, so far as the
Warrantors are aware, there are no facts or circumstances which may lead to any
such claims, investigations or proceedings
8.3.3 As far as the Warrantors are aware, the business and all industrial or
other processes carried on by the Company and Business at the Property complies
with all conditions, limitations, obligations, prohibitions and requirements
contained in any Environmental Legislation and so far as the Warrantors are
aware, there are no facts or circumstances which constitute or may lead to any
breach of any Environmental Legislation.
55
SCHEDULE 4
-------- -
TAX DEED
DATE: 1999
PARTIES:
(1) 'The Covenantors' : David Julian Minister and David John
Minister
(2) 'The Purchaser': N.B.S. ULT Limited
RECITAL:
This Deed is entered into pursuant to an agreement ('the Agreement') made
between the Vendors (as therein defined) (and including the Covenantors) and the
Purchaser relating to the sale of 102 ordinary shares of 1 each in the capital
of D.J.M. Cryo-Research Limited ("the Company").
OPERATIVE PROVISIONS:
1 DEFINITIONS
In this deed:
1.1 Words and expressions defined in the Agreement shall, except where
otherwise provided or expressly defined below, have the same
meaning in this deed.
1.2 'TAXATION' means all forms of tax, duty, rate levy, charge or other
imposition or withholding whenever and by whatever authority
imposed and whether of the United Kingdom or elsewhere
1.3 'RELIEF' includes any relief, allowance, exemption, set-off or
deduction in computing, or against profits, income or gains of any
description or from any source, or credit against Taxation or any right
of repayment of Taxation.
56
1.4 (i) 'LIABILITY TO TAXATION' means liabilities of the Company to
make actual payments in respect of Taxation (or amounts in respect of Taxation),
but does not include :
(a) the loss or counteracting of any Relief which would otherwise have been
granted or available to the Company;
(b) the nullifying, cancellation or set off of a right to repayment of
taxation which would otherwise have been available to the Company (provided
however that if the loss or counteracting referred to in (a) or the nullifying,
cancellation or set off referred to in (b) results in the Company suffering a
liability to make a payment in respect of taxation, that liability shall itself
be a "liability to taxation")
1.5 'CLAIM FOR TAXATION' includes any notice, demand, assessment, return
submitted by the Company, letter or other document issued, or action taken, by
or on behalf of the Inland Revenue or Customs and Excise authorities or any
other statutory or governmental authority or body whatsoever in any part of the
world, whereby the Company will be subject to a Liability to Taxation).
1.6 'FINAL DETERMINATION' means in relation to a Claim for Taxation:
1.6.1 a determination in writing by the Inspector of Taxes or
1.6.2 where there is an appeal against that assessment an
agreement under TMA s 54 or any legislative provision
corresponding to that section or
1.6.3 a decision of a Court or Tribunal from which
either no
appeal lies, or in respect of which no appeal is made within
the prescribed time limit
Provided that the Company shall not be under any obligation to pursue an appeal
if professionally advised against such a course of action
2. COVENANT
2.1 Subject as provided below, the Covenantors jointly and severally
covenant with the Purchaser that they will pay to the Purchaser so far as
possible by way of repayment of the Consideration payable for the Shares under
the Agreement an amount equal to any of the following:
57
2.1.1 any Liability to Taxation or any depletion of the assets arising by
reason of or in consequence of or in connection with any Liability to Taxation;
(i) arising as a consequence of or by reference to an Event which occurred
on or before the date of Completion or was deemed to occur on or before the
date of Completion for the purposes of any Taxation; or
(ii) arising in respect of or by reference to any income profits or
gains which ` were earned accrued or received by the Company on or before
the date of Completion or in respect of a period ending on or before the date of
Completion
2.1.2 any settlement of a Claim for Taxation where the Claim related to
a Liability to Taxation to which Clause 2.1.1 would have applied; and
2.1.3 the proper and reasonable costs incurred by the Company in relation to
any demands, actions, proceedings and claims in respect of Liabilities to
Taxation or Claims for Taxation.
2.2 If the Purchaser incurs a Liability to Taxation in respect of any payment
due from the Covenantors under Clause 2.1, the Purchaser shall calculate and
demand in writing from the Covenantors from time to time such amount as will
ensure that the net receipt to the Purchaser (after Taxation) in respect of the
payment is the same as it would have been were the payment not subject to
Taxation in the hands of the Purchaser.
3 EXCLUSIONS
3.1 The covenant in Clause 2.1 shall not apply to any Liability to Taxation
or Claim for Taxation (or any costs incurred in connection with either of them);
3.1.1 to the extent that an appropriate provision or reserve was made in the
Completion Accounts; or was specially referred to in the notes to such accounts
3.1.2 for which the Company is or may become liable wholly or primarily as a
result of transactions in the ordinary course of its business on or after the
date of this deed;
3.1.3 to the extent that the Liability to Taxation or Claim for Taxation arises
as a result only of the appropriate provision in the Completion Accounts being
insufficient by reason of any increase in rates of Taxation made after the date
of the Agreement;
58
3.1.4 which would not have arisen but for the transactions contemplated by
the
Agreement or a voluntary act or transaction or omission of the Purchaser or the
Company after the date of this deed otherwise than in the ordinary course of
business;
3.1.5 to the extent that liability is limited under the provisions of
Schedule 7 to the Agreement.
3.1.6to the extent that the loss occasioned thereby has been recovered
pursuant to any claim under the Warranties in the Agreement
3.1.7 to the extent that it arises by reason of any chargeable gain made
after the date of Completion but deemed to have arisen prior to the date of
Completion in accordance with TCGA Sections 178 or 179 and the
potential gain concerned was brought to the attention of the Purchaser
in writing
3.1.8 to the extent that it arises because the small companies rate for
corporation tax is no longer payable by the Company
3.1.9 to the extent that it comprises a balancing charge incurred by the
Company and arising on a chargeable event occurring after the date of
Completion for the purpose of the CAA and full provision has been made
for deferred tax thereon in the Completion Accounts
3.1.10 to the extent that such Taxation results from a change in
accounting policy or practice of the Purchaser or the Company
introduced after the date of Completion except where such change is
necessary to comply with Clause 1.1.2 (b) and (c) of Schedule 3 of the
Agreement or the method of valuation of stocks specified in Clause 4.6
of the Agreement
3.1.11 to the extent that such Taxation results from the cessation of any
trade or the sale of shares of the Company after the date of Completion
3.1.12 to the extent that it arises or is increased as a result of the
imposition of Taxation or as a consequence of any retrospective change in
the law or practice made after the date of Completion
3.1.13 to the extent that the Liability to Taxation results in a
corresponding saving by or net benefit to the Company
59
3.1.14 to the extent that it comprises Taxation payable by the
Purchaser or the Company under the Agreement or this deed or on any
document executed pursuant to the terms of the Agreement or this deed or for
the purposes of giving effect to them
3.1.15 if the Company fails, after due warning, to act in accordance
with the reasonable instructions of the Covenantors in conducting any
dispute in respect of any Liability to Taxation to Claims for Taxation
4. DEDUCTIONS OR WITHHOLDINGS
4.1 Any payments made by or due from the Covenantors by virtue of clause
shall be free and clear of all Taxation.
4.2 If any deductions or withholdings are required by law, or any payments
made by or due from the Covenantors under this Deed are Liable for Taxation
(whether in the hands of the Purchaser, or the Company, the Covenantors shall be
jointly and severally liable under this sub-clause to pay to the Purchaser or
the Company to which the payments are made or due by virtue of clause 2 (as the
case may be) such further sums as will ensure that the aggregate of the sums
paid or payable under this sub-clause and clause 2 shall, after deducting
therefrom all deductions or withholdings from, or taxation liabilities in
respect of such sums, leave the Purchaser or the Company (as the case may be)
with the same amount as it would have been entitled to receive under clause 2 in
the absence of any such deductions, withholdings or taxation liabilities.
5 MITIGATION
If any provision for taxation contained in the Completion Accounts proves
to be an over provision, the amount over provided shall be set off against
any liability of the Covenantors under this Deed
6 CONDUCT OF CLAIM
6.1 The Purchaser will or the Purchaser shall procure that the Company shall
notify the Covenantors in writing of any Claim for Taxation which comes to its
notice whereby appears that the Covenantors are or may become liable to make a
payment to the Purchaser under this deed. Where a time limit for appeal applies
to such claim, the notification shall be given as soon as reasonably possible
60
after the date on which the claim comes to the notice of the Company but, where
no time limit applies or the period to which the limit relates has not
commenced, the notification shall be given within fifty six days of that date.
6.2 The Purchaser shall ensure that a Claim for Taxation to which this deed
applies, is, so far as reasonably practicable, dealt with separately from claims
to which it does not apply and is not paid prematurely; and for this purpose any
payment made by the Company to avoid incurring interest or any penalty in
respect of unpaid Taxation shall be deemed not to be paid prematurely.
6.3 Subject to Clause 6.6, the Purchaser shall procure at the request in
writing
of the Covenantors that the Covenantors are placed in a position to dispute on
behalf of the Company any Claim for Taxation to which this deed applies and
shall render, or cause to be rendered, to the Covenantors at their expense all
such assistance as the Covenantors, or a majority of them, may reasonably
require in disputing any Claim for Taxation.
6.4 Subject to Clause 6.5, the Covenantors shall be entitled on behalf of
the
Company to instruct such solicitors or other professional advisers as the
Covenantors, or a majority of them, may nominate to act on behalf of the
Covenantors or the Company, to the intent that the conduct, and costs and
expenses, of the dispute shall be delegated entirely to and be borne solely by
the Covenantors.
6.5 In connection with the conduct of any dispute relating to a Claim for
Taxation to which this deed applies:
6.5.1 the Covenantors shall keep the Company and the Purchaser fully
informed
of all relevant matters and the Covenantors shall promptly forward or procure to
be forwarded to the secretary of the Company and the Purchaser copies of all
correspondence and other written communications pertaining thereto;
6.5.2 the appointment of solicitors or other professional advisers shall be
subject
to the approval of the Purchaser, such approval not to be unreasonably withheld
or delayed;
6.5.3 the Covenantors shall make no settlement or compromise of the dispute,
nor agree any matter in the conduct of the dispute which is likely to affect the
amount involved or the future Liability to Taxation of the Company without the
61
prior approval of the Purchaser, such approval not to be unreasonably withheld
or delayed;
6.5.4 if any dispute arises between the Purchaser and the Covenantors as to
whether the Claim for Taxation or Liability to Taxation should at any time be
settled in full or contested in whole or in part, the dispute shall be referred
to the determination of a senior tax counsel of at least ten years standing
appointed by agreement between the Purchaser and the Covenantors, or (if they do
not agree) upon the application by either party to the President for the time
being of The Law Society, whose determination shall be final. The counsel shall
be asked to advise whether in his opinion an appeal against the claim would on
the balance of probabilities be likely to succeed and as to how the costs of
such dispute should be allocated between the Covenantors and the Purchaser. Only
if his opinion is in the affirmative shall an appeal be made and such claim not
then settled. Any further dispute arising between the Covenantors and the
Purchaser as to whether any further appeal should be pursued following
determination of an earlier appeal (whether or not in favour of the Company)
shall be resolved in a similar manner.
6.6 The Covenantors shall at the request of the Purchaser provide, to the
reasonable satisfaction of the Purchaser, security or indemnities, or both, in
respect of all the costs and expenses of disputing any Claim for Taxation to
which this deed applies.
6.7 The Purchaser shall not be subject to any claim by or liability to, any
of
the Covenantors on the ground that it has not complied with the foregoing
provisions, if it has bona fide acted in accordance with the instructions or
approval of any one or more of the Covenantors.
7 DATES FOR AND QUANTUM OF PAYMENTS
7.1 This Clause shall apply solely for determining the date on which any
payments or repayments shall be made by or to the Covenantors pursuant to this
deed and (where expressly provided) the amounts of the payments or repayments.
7.2 The Covenantors shall make payment to the Purchaser to the extent that
and on the date on which either the Company or the Purchaser discharges or is
62
deemed to discharge a Liability to Taxation in respect of which the Purchaser is
entitled to a payment under this deed.
7.3 The Purchaser shall make a repayment to the Covenantors to the extent
that and within 28 days of the date on which the Company receives any repayment
of any amount paid in respect of any Liability to Taxation pursuant to Clause
7.2. Any repayment to the Covenantors pursuant to this Clause 7.3 shall not
prejudice the right of the Purchaser to recover from the Covenantors under this
deed in the event that a further Liability to Taxation is imposed upon the
Company, whether in respect of matters to which the repayment relates or
otherwise.
7.4 For the purposes of Clause 7.2, the Company shall be deemed to discharge
a Liability to Taxation:
7.4.1 on the date on which the Company pays any amount of Taxation;
7.4.2 on the date on which any Liability to Taxation would have fallen due
but
for Reliefs, rights of repayment or other rights or claims of a similar nature
to which Clause 5.1 applies.
7.4.3 in a case falling within any of sub-paragraphs (a), (b) and (c) of
Clause
1.4
(i) on the date on which the Purchaser notifies the Covenantors that the
Covenantors have a liability under this deed.
7.5 For the purpose of Clause 7.3, the Company shall be deemed to receive a
repayment:
7.5.1 on the date on which the Company receives a repayment of Taxation to
which Clause 7.2 applies;
7.5.2 if and when the Company would have received a repayment but for a
Liability to Taxation in respect of which the Company is not entitled to be
indemnified under this deed;
7.5.3 if and when the Company would have received a repayment had the
Liability to Taxation been discharged by a payment of Taxation; or
7.5.4 if and when the Company is able to obtain the benefit of a reduction
in
its Liability to Taxation as a result of the right to repayment.
7.6 Upon Final Determination of a relevant Claim for Taxation the
63
Covenantors shall promptly pay to the Purchaser such amount or further amount in
addition to any sums already paid under this deed as is required to cover the
full liability of the Covenantors under this deed.
7.7 Any dispute in relation to the provisions of Clauses 7.4, 7.5 or 7.6 may
be
referred, by the Purchaser or the Covenantors, to the auditors for the time
being of the Company, acting as experts and not as arbitrators, whose
certificate shall be final and binding upon the parties in the absence of
manifest error. The costs of the referral shall be paid as .the auditors direct
8. TAXATION
8.1 The Covenantors or their duly authorised agents shall, at the cost of
the
Covenantors, prepare true and accurate taxation returns of the Company (i) for
all taxation periods ended on or before the date of Completion to the extent
that the same shall not have been prepared before Completion (ii) relating to
advance corporation tax and income tax deducted from payments made or deemed to
be made on or before the date of Completion (iii) relating to all pay as you
earn and Schedule E matters for the years ended on or prior to Completion
including those relating to benefits provided to the extent the same shall not
have been prepared before Completion (iv) if the Company is requested to do so
by H.M. Custons and Excise in relation to the adjustment required under Vat
Retail Scheme B. 1 to the date of Completion, being the date on which the
Company ceased to use the scheme
8.2 The Purchaser shall procure that the Company shall cause the returns
mentioned in clause 8.1 to be authorised, signed and submitted to the
appropriate authority with such amendments as are required to comply with
taxation legislation and shall give the Covenantors or their agent all such
assistance as may be required to agree those returns with the appropriate
authorities
8.3 The Covenantors or their duly authorised agent shall, at the cost of the
Covenantors, prepare all documentation and deal with all matters (including
correspondence) in relation to the Taxation returns of the Company mentioned in
clause 8.1 and the Purchaser shall procure that the Company shall afford such
access to its books, accounts and records as is necessary and reasonable to
64
enable the Covenantors or their duly authorised agent to prepare those returns
and conduct matters relating thereto in accordance with the Covenantors rights
under this clause.
8.4 Nothing done by the Company pursuant to this clause shall in any
respect restrict or reduce any rights the Purchaser may have to make a claim
against the Covenantors under this deed
9. GENERAL
9.1 This deed shall be binding on the Covenantors and their respective
successors and personal representatives.
9.2 The benefit of this deed may be assigned in whole or in part by the
Purchaser.
9.3 The provisions of the Agreement relating to notices shall apply to any
notice to be given under, or in connection with, this deed.
9.4 The construction, validity and performance of this deed shall be
governed by the laws of England.
9.5 Without prejudice to the provisions of Clause 7 in relation to dates of
payment, and solely for the purposes of computing the Liability of
Taxation under this deed or any over provision or recoveries under
Clause 5 an accounting period of the Company shall be deemed to end on the
date of Completion.
9.6 Nothing in Clauses 3 and 5 will give any benefit to the Covenantors of any
Reliefs, rights of repayment or other rights or claims of a similar nature
against Income, Profits or Gains which are earned or accrued after the date of
Completion or against Income, Profits or Gains of the Purchaser or companies in
the same group as the Purchaser.
9.7
The Covenantors shall be entitled to receive and the Purchaser shall pay to them
the amount of any repayment or other amounts arising from rights or claims of a
similar nature in respect of Income, Profits and Gains referable to the time on
or before Completion forthwith upon receipt by the Purchaser (provided any such
sum is not reflected in the Accounts, including the Completion Accounts of the
Company)
65
IN WITNESS whereof this Deed has been duly executed the day and year first
before written
SIGNED AS A DEED by the said
in the presence of:
SIGNED AS A DEED by the said
in the presence of:
THE COMMON SEAL of
was hereunto affixed in the presence of:
Director
Director/Secretary
66
SCHEDULE 5
----------
PART I SHORT PARTICULARS OF THE PROPERTY
Premises at Woodrolfe Road, Tollesbury,
Malden, Essex
PART I THE LEASE
Parties : D. J. and D. J. Minister (1)
D.J.M. Cryo-Research Limited
Term : 10 Years
Rent : 70,000 p.a. (increasing)
67
SCHEDULE 6
----------
PENSION SCHEME
None.
68
SCHEDULE 7
----------
VENDORS' PROTECTION PROVISIONS
SCHEDULE 7
WARRANTOR PROTECTION
1. LIMITATION OF LIABILITY
The following Paragraphs of this Schedule shall operate to limit the liability
of the Warrantors under or in connection with the Warranties and the Disclosure
Letter and the Transfer Agreement (if that agreement is entered into) and
accordingly, in this Schedule, 'Relevant Claim' means any claim of the Purchaser
or of D.J.M. Cryo-Research Limited under or in connection with this Agreement,
the Transfer Agreement (if that agreement is entered into), the Warranties or
the Disclosure Letter including for the avoidance of doubt, any claim for
misrepresentation or negligent misstatement.
2. FINANCIAL LIMITS
2.1 AGGREGATE LIMIT
The aggregate liability of the Warrantors in respect of Relevant Claims shall be
limited to 500,000.
2.2 THRESHOLDS
The Warrantors shall not be liable in respect of a Relevant Claim unless:
(i) the liability of the Warrantors in respect of that Relevant Claim (and
all other Relevant Claims arising out or related to the same or similar subject
matter) exceeds 1,000, and
(ii) the aggregate liability of the Warrantors in respect of all Relevant
Claims exceeds 5,000.
3. TIME LIMITS
3.1 NOTICE TO WARRANTORS
The Warrantors shall have no liability in respect of any Relevant Claim unless
the Purchaser shall have given notice in writing to the Warrantors of such claim
69
specifying (in reasonable detail) the matter which gives rise to the claim, the
nature of the claim and the amount claimed in respect thereof not later than two
years after the date of this Agreement.
3.2 ANY RELEVANT CLAIM
Notice of any Relevant Claim which has been given in accordance with 3.1 shall
(if it has not been previously satisfied or withdrawn) be deemed to have been
waived or withdrawn at the expiry of three months after its notification under
clause 3.1 unless proceedings in respect thereof have been commenced against the
Warrantors (and for this purpose proceedings shall not be deemed to have been
commenced unless they have been both issued and served on the Warrantors).
4. RECOVERY FROM THIRD PARTIES
4.1 ACCOUNTING TO WARRANTORS
If the Warrantors pay to or for the benefit of the Purchaser an amount in
respect of any Relevant Claim and any of the Purchaser, the Company or any
member of the Purchaser's Group subsequently receives from any other person any
payment in respect of the matter giving rise to the Relevant Claim, the
Purchaser shall thereupon pay to the Warrantors an amount equal to the payment
received, except to any extent that payment in respect of the Relevant Claim was
reduced as a result of liability (in part or whole) of the Warrantors and
provided that such payment shall not exceed the sum paid by the Warrantors less
the reasonable expenses of the Purchaser
5. FURTHER LIMITATION OF LIABILITY
5.1 NO DOUBLE RECOVERY
The Purchaser shall not be entitled to recover damage or otherwise obtain
reimbursement or restitution more than once in respect of the same loss.
5.2 No liability shall arise on the part of the Warrantors in respect of any
Relevant Claim
70
(i) if and to the extent that provision or reserve for or in respect of the
liability or other matter giving rise to such claim has been made in the
Accounts
(ii) if and to the extent that such claim is wholly or partly attributable
to any voluntary act omission transaction or arrangement of the Purchaser or the
Purchaser's Group after the date hereof
(iii) to the extent that the Business, the Company or the Purchaser are
insured against any loss or damage suffered by the Business or the Company or
the Purchaser arising out of such breach or claim under the terms of any
insurance policy of the Business or the Company or the Purchaser for the time
being in force
(iv) if and to the extent that the liability of the matter giving rise to
such claim is disclosed by or referred to in the Disclosure Letter
6. PROCEDURAL MATTERS
6.1 If any claim is received by or comes to the notice of the Purchaser for
which the Warrantors may be liable the Purchaser shall
(i) as soon as reasonably practicable give written notice thereof to the
Warrantors
(ii) not make any admission of liability, agreement or compromise with any
person body or authority in relation thereto without the prior written consent
of the Warrantors
(iii) give the Warrantors and their professional advisers reasonable access
to the premises and personnel of the Purchaser and/or the Business and/or the
Company (as the case may be) and to any relevant chattels accounts documents and
records within the power possession or control of the Purchaser and/or the
Business and/or the Company to enable the Warrantors and their professional
71
advisers to examine such claim premises chattels accounts documents and records
and to take copies or photographs thereof at their own expense
(iv) (subject to the Warrantors indemnifying and securing the Purchaser to
the Purchaser's reasonable satisfaction against any liability costs damages or
expenses which may be incurred thereby) take such action as the Warrantors may
reasonably request to avoid dispute resist compromise or defend any such claim
6.2 Where the Purchaser is or may be entitled to recover from some other
person any sum in respect of any matter giving rise to a Relevant Claim the
Purchaser shall procure that reasonable steps are taken to enforce such recovery
and in the event that any sum is so recovered then either the amount payable by
the Warrantors in respect of that claim shall be reduced by an amount equal to
the sum so recovered or (if an amount shall already have been paid by the
Warrantors in respect of that claim) there shall be repaid to the Warrantors an
amount equal to the amount so recovered or (if less) the amount of such payment
but shall not exceed the amount paid by the Warrantors
7. MISCELLANEOUS
7.1 The amount of any Relevant Claim shall take into account the amount of
any relief from taxation arising by virtue of the loss or damage in respect of
which the claim is made, provided that this clause shall not reduce the value of
any valid claim, but is intended to prevent the Purchaser gaining a "double
benefit" from both the claim and any tax relief.
7.2 The Purchaser shall not be entitled to make any claim in respect of
anything which is expressly provided for by or which falls to be done in
implementing the terms of this agreement.
72
7.3 The Purchaser shall not be entitled to rescind this Agreement at any
time after Completion and the sole remedy which the Purchaser may seek after
that date in respect of any breach of the Warranties is a claim for damages
(subject to the provisions of this Schedule).
7.4 The Purchaser acknowledges and agrees with the Warrantors that the
Purchaser has not been induced to enter into this Agreement by or in reliance
upon any representation warranty or undertaking either oral or written made by
the Vendors or any of them or by any person on its behalf other than such as are
expressly incorporated in this Agreement.
7.5 The Purchaser hereby represents and warrants to the Warrantors and to
the Vendors that (the Purchaser having been given an opportunity to carry out an
investigation into the Company and the Business) such investigation and any
documents or extracts obtained by or made available to Purchaser or its agents
during the course of such investigation do not reveal any matters or things that
at the date hereof are inconsistent with any of the Warranties or that may give
rise to any liability on the part of the Warrantors thereunder.
8. RELEVANCE OF LIMITATIONS IN CIRCUMSTANCES OF FRAUD ETC
The provisions of paragraphs 2 and 3 of this Schedule shall not apply in respect
of any Relevant Claim if it is (or the delay in the discovery of which is) the
consequence of fraud or wilful concealment by the Warrantors.
73
CROSS-OPTION AGREEMENT
RELATING TO DJM CRYO RESEARCH LIMITED
DAVID JULIAN MINISTER AND
DAVID JOHN MINISTER (1)
N.B.S. ULT LIMITED (2)
THOMPSON SMITH & PUXON
4 & 5 NORTH HILL
COLCHESTER
ESSEX CO1 1EB
mfedeyko@tsp.legal.com
----------------------
1
THIS AGREEMENT is made the day of
BETWEEN:
(1) DAVID JULIAN MINISTER and DAVID JOHN MINISTER of Woodrolfe Road,
Tollesbury, Maldon, Essex (THE "VENDORS); and
(2) N.B.S. ULT Limited a limited company registered in England with Company
Number 03864134 whose registered office is at AQUIS COURT, 31 FISHPOOL STREET,
ST. ALBANS, HERTFORDSHIRE (THE "PURCHASER").
In consideration of the sum of One pound ( 1.00) now paid by each of the parties
to the other (the receipt of which each of the parties hereby acknowledges) IT
IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
In this Agreement the following expression have the meanings set out below:
1.1 "ACQUISITION AGREEMENT" means the agreement dated the
day of November 1999 made between the Vendors and the Purchaser with respect to
the purchase of all of the shares in DJM Cryo Research Ltd and dealing with the
provisions for transfer of the Business if the options in this agreement are
exercised;
1.2 the "OPTION" means an option exercisable or exercised pursuant to
clauses 2.1 or 2.2;
1.3 the "OPTION NOTICE" means a notice served by the Purchaser or by the
Vendors in accordance with clause 4;
1.4 "TRANSFER AGREEMENT" means the agreement referred to in clause 4.3
hereof;
1.5 "TRANSFER TERMS" means the Business shall be sold and purchased for the
sum of 2,750,000 and otherwise in accordance with the terms of this Agreement,
the Acquisition Agreement and the Transfer Agreement.
2. PUT AND CALL OPTIONS
2.1 Subject to the conditions set out in clause 3 below, the Vendors shall
have the option to require the Purchaser to buy the Business, on the exercise of
which the Purchaser will become bound to buy and the Vendors will become bound
to complete the purchase of the Business on the Transfer Terms.
2
2.2 Subject to the provisions of clause 3 hereof, the Purchaser shall have
the option to require the Vendors to sell the Business, on the exercise of which
the Vendors will become bound to sell and the Purchaser will become bound to
complete the sale of the Business on the Transfer Terms.
3 CONDITIONS
3.1 An option may not be exercised unless and until each of the Vendors have
resigned as directors of DJM Cryo Research and are no longer beneficial owners
of or registered holders of any shares in DJM Cryo Research Limited.
4 EXERCISE OF OPTION
4.1 The Purchaser may exercise the Option by written notice (THE 'OPTION
NOTICE') served on the Vendors at any time from and including day of
November 1999.
4.2 The Vendors may exercise the Option by written notice (THE "OPTION
NOTICE") served on the Purchaser at any time on or after day of
November 1999.
4.3 Completion of the sale and purchase of the Business shall take place
forthwith upon the service of the Option Notice at the offices of the Vendors'
solicitors when all of the transactions mentioned in sub-clauses 4.3.1 to 4.3.4
shall take place:
4.3.1 the Purchaser shall deliver or shall procure the delivery to the
Vendors' solicitors by way of telegraphic transfer the sum of 2,750,000;
4.3.2 assets of the Business which are capable of transfer by delivery shall
be so transferred;
4.3.3 the Vendors shall execute an Assignment of the Business in the form
set out in Schedule 1 hereto;
4.3.4 the Purchaser (or its assignee) shall enter into the Transfer
Agreement in the form annexed as Schedule 2 hereto which shall also be duly
executed by the Vendors.
3
5 CROSS NOTICES
5.1 Any Option Notice served after any previous such notice shall be void
and of no affect. Once an Option has been exercised, neither party shall have
the right to exercise any further Option hereunder.
6 GENERAL
6.1 This agreement shall be binding on and enure to the benefit of the
successors and/or personal representatives of the parties but neither party may
otherwise transfer assign or charge their rights or obligations under this
agreement, provided that the Purchaser may assign its rights to any wholly owned
subsidiary.
6.2 Any notice to be given by either party may be personally delivered or
sent by post to the address of the other party as set out above or to such other
address as they may from time to time have notified for the receipt of notices
under this agreement and where a notice is sent by post it shall be deemed to
have been received 72 hours after having been put into the post properly
addressed and stamped.
IN WITNESS WHEREOF this Agreement was duly executed the day and year first above
written.
Duly signed by )
Director/Secretary for and on behalf of )
N.B.S. ULT Limited )
in the presence of: )
Duly signed by DAVID JULIAN )
MINISTER in the presence of: )
Duly signed by DAVID JOHN )
MINISTER in the presence of: )
4
SCHEDULE 1
----------
ASSIGNMENT OF GOODWILL
THIS ASSIGNMENT is made the day of
1999 BETWEEN (1) DAVID JOHN MINISTER and DAVID JULIAN MINISTER both of Woodrolfe
Road, Tollesbury, Essex ("the Assignor") and (2) DJM Cryo Research Limited
whose Registered Office is at Woodrolfe Road, Tollesbury, Essex
(registered in England number 2959499) ("the Assignee")
WHEREAS
(1) The Assignor is the owner of the goodwill in relation to the business as
defined by an Acquisition Agreement (the "Acquisition Agreement") and made
between, inter alia, the Assignor and N.B.S. ULT Limited ("the goodwill")
(1) Pursuant to the terms of the Acquisition Agreement, the Assignor has
entered into a Cross-Option Agreement (as defined in the Acquisition Agreement)
with N.B.S. ULT Limited
(2) Pursuant to the terms of the Option Agreement an option has been
exercised and in connection with such exercise, the Assignor has agreed to
assign to the Assignee such right title and interest that the Assignor has in
the goodwill on the terms set out below
IT IS AGREED AS FOLLOWS :
1. ASSIGNMENT
In consideration of the payment by the Assignee to the Assignor of TWO
MILLION POUNDS ( 2,000,000) (receipt of which is hereby acknowledged by the
Assignor) the Assignor assigns unto the Assignee with full title guarantee the
goodwill TO HOLD unto the Assignee absolutely
5
SCHEDULE 1
----------
ASSIGNMENT OF GOODWILL
THIS ASSIGNMENT is made the day of
1999 BETWEEN (1) DAVID JOHN MINISTER and DAVID JULIAN MINISTER both of Woodrolfe
Road, Tollesbury, Essex ("the Assignor") and (2) DJM Cryo Research Limited
whose Registered Office is at Woodrolfe Road, Tollesbury, Essex
(registered in England number 2959499) ("the Assignee")
WHEREAS
(1) The Assignor is the owner of the goodwill in relation to the business as
defined by an Acquisition Agreement (the "Acquisition Agreement") and made
between, inter alia, the Assignor and N.B.S. ULT Limited ("the goodwill")
(1) Pursuant to the terms of the Acquisition Agreement, the Assignor has
entered into a Cross-Option Agreement (as defined in the Acquisition Agreement)
with N.B.S. ULT Limited
(2) Pursuant to the terms of the Option Agreement an option has been
exercised and in connection with such exercise, the Assignor has agreed to
assign to the Assignee such right title and interest that the Assignor has in
the goodwill on the terms set out below
IT IS AGREED AS FOLLOWS :
1. ASSIGNMENT
In consideration of the payment by the Assignee to the Assignor of TWO
MILLION POUNDS ( 2,000,000) (receipt of which is hereby acknowledged by the
Assignor) the Assignor assigns unto the Assignee with full title guarantee the
goodwill TO HOLD unto the Assignee absolutely
6