Exhibit 10.4
DATED THIS 26TH DAY OF JULY 2000
(1) THE PERSONS WHOSE NAMES AND ADDRESSES ARE SET OUT IN COLUMN 1 OF PART 1
OF SCHEDULE 1
(2) THE PERSONS WHERE NAMES AND ADDRESSES ARE SET OUT IN PART 2 OF
SCHEDULE 1
(3) UNITED WASTE IRELAND LIMITED
(4) THERMO TERRATECH INC.
AGREEMENT FOR THE SALE AND PURCHASE OF THE
WHOLE OF THE ISSUED SHARE CAPITAL OF GREEN
SUNRISE HOLDINGS LIMITED
BCM HANBY WALLACE
Solicitors
1 High Street
Dublin 8
Tel: + 353 1 6056900
Fax: + 353 1 6056966
DX 18 DUBLIN
Email: info@bcmhanbywallace.com
www.bcmhanbywallace.com
THIS AGREEMENT is made on 26th July 2000 BETWEEN
(1) THE PERSONS WHOSE NAMES AND ADDRESSES ARE SET OUT IN Column 1 of Part 1 of
Schedule 1 (together the "Vendors" and each a "Vendor") AND
(2) THE PERSONS WHOSE NAMES AND ADDRESSES ARE SET OUT IN Part 2 of Schedule 1.
AND
(3) UNITED WASTE IRELAND LIMITED a company incorporated under the laws of
Ireland having its registered office at 33 Elm Road, Donnycarney, Dublin 9
(hereinafter called the "Purchaser")
(4) THERMO TERRATECH INC. a company incorporated under the laws of the State of
Delaware, having its principal office at 81 Wynor Street, Waltham, MA
02454, USA.
WHEREAS:-
A. Green Sunrise Holdings Limited (the "Company") is a private limited company
incorporated in Ireland under the Company Acts 1963-1999 on 16th February
1996 under registration number 241574 with its registered office at
Murphystown Road, Sandyford, Co. Dublin
B. The Company has an authorised share capital of IR(pound)100,000 divided
into 100,000 Ordinary Shares of IR(pound)1 each of which 32,105 Ordinary
Shares are issued credited as fully paid up.
C. The Vendors are the beneficial owners of all of the issued shares in the
Company, in the proportions set out in Column 2 of Part 1 of Schedule 1,
which they have agreed to sell and which the Purchaser has agreed to
purchase on the terms and subject to the conditions of this Agreement.
D. The Vendors and the Warrantors (as hereinafter defined) have made
representations to the Purchaser in the terms, inter alia, of the
representations, warranties and undertakings set out in Schedule 2 with the
intention that the Purchaser should rely upon such representations,
undertakings and warranties in entering into this Agreement.
NOW IT IS HEREBY AGREED as follows:-
1. Interpretation
1.1 Definitions
In this Agreement and in the Schedules unless the context otherwise
requires or unless otherwise specified:- "Accounts" means the consolidated
audited balance sheet of the Companies as at the Accounts Date and the
audited profit and loss account of the Companies for the accounting period
ended on the Accounts Date and all notes thereto and the directors' report
and auditors' report and all other documents and statements annexed
thereto, copies of which are annexed as Annexure A;
"Accounts Date" means 31 December 1999;
"ACT" means advance corporation tax;
"Business" means the respective businesses of the Companies as carried on
at Completion;
"Business Day" means a day (other than a Saturday or Sunday) on which
clearing banks are generally open for business in Ireland;
"the Clancy Supplemental Agreement" means the supplemental agreement of
even date herewith to be entered into upon signing of this Agreement
between Mr Seamus Clancy and the Purchaser.
"Collateral Agreements" means the Greenstar Purchase Agreement, the Service
Agreements, the Deed of Tax Covenant;
"Companies" means the Company and each of Greenstar Products Limited,
Scaffco IPR Limited, Pipe & Drain Services Limited, A Autorod Limited,
Greenstar Recycling Limited, Green Sunrise Industries Limited, Dempsey
Drums Limited, Watco Ireland Limited, Ecotechniek Ireland Limited);
"Companies Acts" means the Companies Acts, 1963 to 1999 and all orders and
regulations made thereunder or made under the European Communities Act,
1972 and intended to be construed as one with the Companies Acts, 1963 to
1999;
"Completion" means completion of the matters relating to the sale and
purchase of the Shares hereunder pursuant to clause 5;
"Completion Date" means 26 July 2000;
"Confidential Information" means all information not in the public domain
used in or otherwise relating to the organisation, business, personnel,
suppliers, customers, financial or other affairs of each of the Companies
including information relating to:-
(i) the marketing of any products or services including customer names and
lists and any other details of customers, sales targets, sales
statistics, market share statistics, prices, market research reports
and surveys, and advertising or other promotional materials; and
(ii) future projects, business development or planning, commercial
relationships and negotiations;
"Connected Person" in relation to a person means any person who is
connected with that person by virtue of Section 10 of the TCA;
"Consideration" means the total purchase consideration specified in clause
3.1 by reference to the Supplemental Agreements as being payable for the
Shares by the Purchaser;
"Continuing Directors" means Seamus Clancy and Paul Dempsey;
"Deed of Tax Covenant" means the deed of tax covenant to be entered into on
Completion, in accordance with the terms of this Agreement, by the
Warrantors, and the Purchaser in the form set out in Schedule 3;
"Dempsey Supplemental Agreement" means the supplemental agreement of even
date herewith to be entered into upon signing of this Agreement between Mr
Paul Dempsey and the Purchaser.
"Directors" means the several persons, being all the directors of the
Company at the date hereof, whose names and addresses are set out as such
in Part 1 of Schedule 4;
"Disclosure Letter" means the letter and its annexures of even date
herewith from the Warrantors to the Purchaser disclosing information
constituting exceptions to the Warranties;
"Encumbrance" means:-
(i) any adverse claim or right or third party right or other right or
interest;
(ii) any equity;
(iii)any option or right of pre-emption or right to acquire or right to
restrict;
(iv) any mortgage, charge, assignment, hypothecation, pledge, lien,
encumbrance or security interest or arrangement of whatsoever nature;
(v) any reservation-of-title; or
(vi) any hire purchase, lease or instalment purchase agreement;
"Environmental Reports" means the reports investigating environmental
matters relating to the sites occupied by Dempsey Drums Limited at Oriel
Street, Dublin disclosed in the Disclosure Letter.
"Environmental Warranty" means Warranty 21 set out in Part 2 of Schedule 2.
"Executives" means Mr. Seamus Clancy and Mr. Paul Dempsey.
"Greenstar Products Limited" means Greenstar Products Limited registered
number 217630.
"Greenstar Purchase Agreement" a share purchase agreement of even date
between the Persons whose names and addresses are set out in Schedule 1 and
the Purchaser relating to the acquisition of the entire issued ordinary
share capital of Greenstar Products Limited;
"Group Companies" means the Companies including Greenstar Products Limited;
"Group Company" means any one of the Group Companies;
"Intellectual Property" means any and all patents, registered trademarks,
registered designs, applications for any of the foregoing, trade and
business names, unregistered trademarks, logos, know-how, trade secrets,
copyrights, rights in designs, inventions, rights under licences and
consents in relation to any such rights, and rights of the same or similar
effect or nature, together with all goodwill attaching or relating thereto,
in any part of the world (whether or not capable of protection by
registration);
"Management Accounts" means the unaudited balance sheet of the Company
incorporating management accounts for each of the Companies as at the
Management Accounts Date and the unaudited profit and loss account of the
Company and Greenstar Products Limited for the period ended on the
Management Accounts Date, copies of which are annexed as Annexure B;
"Management Accounts Date" means 30 June 2000
"PDQ Supplemental Agreement" means the supplemental agreement of even date
herewith to be entered into upon signing of this Agreement between PDQ
Consultants Limited and the Purchaser.
"Pension Schemes" means all existing pension schemes of or operated by or
in relation to the Companies full particulars of which are set out in the
Disclosure Letter;
"Pounds", "IR(pound)" and "(pound)" means the lawful currency of Ireland;
"Properties" means the properties of the companies, particulars of which
are set out in [Schedule [ ] of the Disclosure Letter];
"Purchaser's Solicitors" means BCM Hanby Wallace, 1 High Street, Dublin 8.
"Service Agreements" means the contracts of employment in the agreed form;
"Shares" means the [32,105] Ordinary Shares of IR(pound)1 each in the
capital of the Company beneficially owned by the Vendors in the proportions
set out in Column 2 of Part 1 of Schedule 1 to be purchased by the
Purchaser hereunder;
"Subsidiary Shares" means the shares beneficially owned by the persons
named in Part 3 of Schedule 1 to be purchased by the Purchaser hereunder;
"Supplemental Agreements" means the Clancy Supplemental Agreement, the
Dempsey Supplemental Agreement, the PDQ Supplemental Agreement and the
Thermo Supplemental Agreement.
"Tax" or "Taxation" means within Ireland, income tax, corporation tax,
advance corporation tax, capital gains tax, capital acquisitions tax,
inheritance tax, capital transfer tax, deposit interest retention tax, gift
tax, value added tax, dividend withholding tax, probate tax, sales tax,
customs and other import and export duties, excise tax, wealth tax,
property tax, residential property tax, vehicle registration tax, rates,
pay-related social insurance pay as you earn tax, withholding tax (whether
in respect of any payments or otherwise), and any other taxes, levies,
duties, charges, surcharges, imposts or withholdings corresponding to,
similar to, replaced by or replacing any of them, together with all and any
penalties, interest, fines and charges relating to any of them or to any
failure to file any return required for the purposes of any of them;
"TCA" means the Taxes Consolidation Act, 1997;
"Thermo" means Thermo Eurotech Ireland Limited;
"Thermo Supplemental Agreement" means the supplemental agreement of even
date herewith to be entered into upon signing of this Agreement between
Thermo Eurotech Ireland Limited and the Purchaser.
"Vendors' Solicitors" means Matheson Ormsby Prentice Solicitors in respect
of PDQ Consultants Limited, Seamus Clancy and Paul Dempsey, and William Fry
Solicitors in respect of Thermo Eurotech Ireland Limited;
"Warranties" means the representations, warranties and undertakings set out
in Part 1 and Part 2 of Schedule 2; and
"Warrantors" means the Vendors and each of the other persons where names
and addresses are set out in Part 2 of Schedule 1.
1.2 Interpretation Generally
In this Agreement and in the Schedules, unless the context otherwise
requires or unless otherwise specified:-
1.2.1 any reference to any statute, statutory provision or to any
order or regulation shall be construed as a reference to
that statute, provision, order or regulation as extended,
modified or replaced from time to time before the date of
this Agreement and all statutory instruments, regulations
and orders from time to time made thereunder or deriving
validity therefrom (before the date of this Agreement);
1.2.2 words denoting any gender include all genders and words
denoting the singular include the plural and vice versa;
1.2.3 all references to recitals, clauses, paragraphs, schedules and
annexures are to recitals in, clauses and paragraphs of and
schedules and annexures to this Agreement;
1.2.4 headings are for convenience only and shall not affect the
interpretation of this Agreement;
1.2.5 words such as "hereunder", "hereto", "hereof" and "herein" and
other words commencing with "here" shall unless the context
clearly indicates to the contrary refer to the whole of this
Agreement and not to any particular section, clause or
paragraph hereof;
1.2.6 in construing this Agreement general words introduced by
the word "other" shall not be given a restrictive meaning by
reason of the fact that they are preceded by words indicating
a particular class of acts, matters or things and general
words shall not be given a restrictive meaning by reason of
the fact that they are followed by particular examples
intended to be embraced by the general words and any
reference to the word "include" or "including" is to be
construed without limitation;
1.2.7 any reference to "Agreement" or any other document or to any
specified provision of this Agreement or any other document is
to this Agreement, that document or that provision as in force
for the time being and as amended from time to time in
accordance with the terms of this Agreement or that document;
1.2.8 any reference to a person shall be construed as a reference to
any individual, firm, company, corporation, government, state
or agency of a state or any association or partnership
(whether or not having separate legal personality) of two or
more of the foregoing;
1.2.9 any reference to a person includes his successors, personal
representatives and permitted assigns;
1.2.10 any reference to a breach of any of the Warranties shall be
construed as including reference to any matter not being in
all respects as represented by the Warranties and to any of
the Warranties being inaccurate or untrue or misleading in any
respect;
1.2.11 any statement, representation, warranty or undertaking in this
Agreement or the Disclosure Letter which is qualified by the
expression "to the best of the knowledge, information and
belief of the Warrantors" or "so far as the Warrantors are
aware" or any similar expression shall be deemed to include a
warranty given severally by the Warrantors that such
statement, representation, warranty or undertaking has been
made and any information known or which after such reasonable
enquiry having regard to the subject matter of the warranty in
question enquiry would have been known by any of the Companies
or its board of directors shall be deemed to be known by the
Warrantors;
1.2.12 "writing" or any similar expression includes transmission by
facsimile;
1.2.13 any reference to a document being in the "agreed form" means
in relation to that document The draft of that document which
has been initialled by each of the Vendors' Solicitors and the
Purchaser's Solicitors by way of identification;
1.2.14 if any action or duty to be taken or performed under any of
the provisions of this Agreement would fall to be taken or
performed on a day which is not a Business Day such action or
duty shall be taken or performed on the Business Day next
following such day;
1.2.15 all references to time are references to Irish time; and
1.2.16 for the avoidance of doubt, any reference to Ireland does not
include Northern Ireland.
1.3 The parties have participated jointly in the negotiating and drafting of
this Agreement. In the event an ambiguity or question of intent or
interpretation arises this Agreement shall be construed as if drafted
jointly by the parties and no presumption or burden of proof shall arise
favouring or disfavouring any party by virtue of the authorship of any of
the provisions of this Agreement.
1.4 Schedules
The contents of the Schedules form an integral part of this Agreement and
shall have as full effect as if they were incorporated in the body of this
Agreement and the expressions "this Agreement" and "the Agreement" as used
in any of the Schedules shall mean this Agreement and any reference to
"this Agreement" shall be deemed to include the Schedules.
1.5 Liability
All representations, warranties, covenants, undertakings, agreements and
obligations given or entered into by the Vendors hereunder are given or
entered into severally but not jointly and the act or default of any of
the Vendors shall be deemed to be the act or default (as the case may be)
of all of the Vendors.
1.6 Warranties
Unless the context otherwise requires or unless otherwise specified, for
the purpose of construction of the Warranties, insofar as any of the
Companies carry on any part of their respective businesses outside
Ireland, the references to any statutory provision enacted or accounting
principles applying in Ireland shall be deemed to include references to
any corresponding or equivalent provision in the local legislation in
force or generally accepted accounting principles applying where any of
the Companies so carry on business and the references to any governmental
or administrative authority or agency shall include references to the
equivalent local government or administrative authority or agency.
2. Sale and Purchase of the Shares
2.1 On the terms and subject to the conditions of this Agreement, the Vendors
as beneficial owners hereby agree to sell or procure to be sold, and the
Purchaser, in reliance upon, inter alia, the Warranties, hereby agrees to
purchase at Completion, the Shares free from all Encumbrances and with the
benefit of all rights of whatsoever nature attaching or accruing to the
Shares including all rights to any dividends and distributions declared,
paid or made in respect of the Shares on or after the date of this
Agreement.
2.2 The Purchaser shall not be obliged to complete the purchase of any of the
Shares unless the purchase of all the Shares and the purchase of all of
the shares the sale of which is contemplated in the Greenstar Products
Agreement is completed simultaneously in accordance with the provisions of
this Agreement and the Greenstar Products Agreement and in accordance with
each of the Supplemental Agreements.
2.3 The persons named in part 3 of Schedule 1 as holding the Subsidiary Shares
shall on Completion transfer free from any encumbrance to the Purchaser
the Subsidiary Shares with the benefit of all rights of whatsoever nature
attaching or accruing to theSubsidiary Shares including all rights to any
dividends on distributions declared paid or made in respect of the Shares
on or after the date of this Agreement.
2.4 Each of the Vendors hereby waives any and all pre-emption rights which he
may have in relation to the sale of any of the Shares or Subsidiary Shares
to the Purchaser hereunder whether arising under the articles of
association of the Company or otherwise.
3. Purchase Consideration
3.1 The purchase consideration for the purchase of the Shares shall be payable
by the Purchaser to the Vendors subject to and in accordance with the
terms of each of the Supplemental Agreements.
3.2 The Consideration shall be reduced or shall be deemed to have been reduced
by the amount, if any, paid to the Purchaser or the Company under the Deed
of Tax Covenant or in respect of any claim by the Purchaser for breach of
any of the Warranties or terms of this Agreement or the Supplemental
Agreements or the Collateral Agreements.
3.3 Each of the parties to each of the Supplemental Agreements hereby
acknowledge that the terms of each Supplemental Agreement is private and
confidential as between the respective parties thereto and further
acknowledges and confirms that the terms contained in each such
Supplemental Agreement may and do differ from the terms contained in any
other Supplemental Agreement and each of the parties other than the
Purchaser hereby waives any and all claims each or any of them may have
whether against each other or the Purchaser arising directly or indirectly
from the fact that the terms contained in any Supplemental Agreement are
not identical to the terms of any other Supplemental Agreement.
3.4 The consideration payable on Completion to the Purchaser for the
Subsidiary Shares shall in aggregate be the sum of IR(pound)1.
4. Completion
4.1 Subject to the provisions of clause 4, Completion of the sale and purchase
of the Shares shall take place at the offices of the Purchaser's
Solicitors on the Completion Date and at Completion the Vendors shall:-
4.1.1 where any of the Vendors is a corporate body, deliver to the
Purchaser evidence, to the Purchaser's satisfaction, of the
authority of any person or persons executing or attesting the
execution of this Agreement and any other document on its
behalf to do so;
4.1.2 deliver to the Purchaser and/or its nominees duly executed
share transfers in respect of the Shares together with the
relevant certificates (or, in the case of any share
certificates found to be missing, an indemnity, in a form
satisfactory to the Purchaser);
4.1.3 deliver to the Purchaser, in a form satisfactory to it, powers
of attorney executed under seal by the registered holders of
the Shares conferring on the Purchaser or such person as may
be nominated by it the entitlement to exercise all rights
exercisable by the registered holders thereof;
4.1.4 deliver to the Purchaser such waivers or consents as are
necessary to enable the Purchaser and/or its nominees to be
registered as the holders of the Shares;
4.1.5 deliver to the Purchaser in relation to each of the Companies
the statutory books, records and registers (complete and duly
written up-to-date), the common seals, the certificates of
incorporation, any certificates of incorporation on change of
name and all documents, contracts, licences, agreements,
insurance policies, records, papers, correspondence files and
books of trading and account of each of the Companies;
4.1.6 procure that all of the Directors (other than the Continuing
Directors) resign from their directorships in and offices of
profit under and employment with the Company and deliver to
the Purchaser their written resignations under seal containing
an acknowledgement that each has no claim against any of the
Companies in respect of breach of contract, compensation for
loss of office or otherwise howsoever arising;
4.1.7 deliver to the Purchaser a letter of resignation under seal
from the secretaries of each of the Companies containing an
acknowledgement that they have no claim against any relevant
company in respect of breach of contract, compensation for
loss of office or otherwise howsoever arising;
4.1.8 discharge or procure the discharge of all monies owing to any
of the Companies (whether then due for payment or not) by the
Vendors or the Directors or by any of them or by any Connected
Person of any of them and the Companies shall procure the
discharge of any monies owed to the Vendors;
4.1.9 procure the release of any and all guarantees or indemnities
or security given by any of the Companies for or on behalf of
the Vendors or the Directors other than the Continuing
Directors or any of them or any Connected Person of any of
them or any other person;
4.1.10 deliver to the Purchaser the title deeds relating to each of
the Properties and all ancillary documentation thereto;
4.1.11 deliver to the Purchaser evidence, in a form satisfactory to
the Purchaser, of the release of each of the Companies from
all Encumbrances created or given by any of them or to which
any of its assets is subject;
4.1.12 deliver to the Purchaser an executed copy of the Greenstar
Purchase Agreement and any other ancillary documents
contemplated in this Agreement.
4.1.13 deliver to the Purchaser the Deed of Tax Covenant duly
executed by the parties thereto;
4.1.14 deliver to the Purchaser the Service Agreements duly
executed by the parties thereto;
4.1.15 deliver to the Purchaser copies of all bank mandates of each
of the Companies together with copies of bank statements in
relation to all bank accounts as at a date not earlier than
one day prior to the Completion Date;
4.1.16 deliver to the Purchaser appropriate forms to amend any
mandates given by the Company to its bankers or other
financial institutions;
4.1.17 procure that a meeting of the board of directors of the
Company and each of the Companies as appropriate is held at
which, inter alia:- (a) the share transfers referred to in
clause 4.1.2
are approved (subject only to stamping);
(b) such persons as the Purchaser may nominate are appointed
as directors, and secretary of the Company and each of
the Companies with immediate effect;
(c) all existing mandates for the operation of bank accounts
of the Company and each of the Companies are revoked and
new mandates are approved and adopted giving authority
to such persons as the Purchaser may nominate;
(d) the resignations referred to above are accepted;
(e) the Company approves and authorises the execution of the
Deed of Tax Covenant and of the Service Agreements;
4.2 On Completion the Purchaser shall pay the Consideration. Payment shall be
made to Matheson Ormsby Prentice Solicitors in respect of PDQ Consultants
Limited, Mr Paul Dempsey and Mr Seamus Clancy and directly to the ABN Amro
account nominated by Thermo Eurotech Ireland Limited for their shares of
the consideration (in accordance with the terms of each of the
Supplemental Agreements or in such other manner as may be agreed in
writing between the parties hereto, and the receipt by the Vendors'
Solicitors or their bankers (as appropriate) of the Consideration shall be
an absolute discharge to the Purchaser.
5. Warranties
5.1 In consideration of, and as an inducement to, the Purchaser entering into
this Agreement the Warrantors hereby warrant to the Purchaser that each of
the Warranties set out in Part 1 of Schedule 2 is at the date hereof true
and accurate in all material respects and not misleading
5.2 In consideration of, and as an inducement to, the Purchaser entering into
this Agreement the Warrantors hereby warrant to the Purchaser that,
subject to clause 7.3, each of the Warranties set out in Part 2 of
Schedule 2 is at the date hereof true and accurate in all material
respects and not misleading in any material respect.
5.3 The Warranties contained in Part 2 of Schedule 2 shall be qualified by
reference to those matters fairly disclosed in the Disclosure Letter and
not otherwise.
5.4 The parties acknowledge that the Purchaser is entering into this Agreement
in reliance on, inter alia, the Warranties and furthermore that the
Purchaser has entered into this Agreement with the intention that the
business of each of the Companies shall or may be continued as a going
concern on the basis that the Warranties are true, accurate and not
misleading in any material respect.
5.5 Each of the Warranties shall be construed as separate and independent and
save as otherwise expressly provided shall not be limited by reference to
any other warranty, clause, sub-clause, paragraph, sub-paragraph or any
provision in this Agreement or the Schedules.
5.6 Subject to clause 5.3, no information of which the Purchaser may have
knowledge (whether actual, constructive or imputed) shall qualify or shall
be deemed to qualify any of the Warranties or prejudice any claim by the
Purchaser under the Warranties or operate to reduce any amount recoverable
by the Purchaser in respect of any breach of any of the Warranties.
Without prejudice to the foregoing, the rights and remedies of the
Purchaser in respect of the Warranties shall not be affected by any
investigation made by or on behalf of the Purchaser into the affairs of
the Company.
5.7 None of the information supplied by any of the Companies or their
respective officers, employees, agents, representatives or advisers to the
Vendors or their officers, employees, agents, representatives or advisers
prior to the date of this Agreement in connection with the Warranties, the
contents of the Disclosure Letter, the Deed of Tax Covenant or otherwise
in relation to the business or affairs of any of the Companies shall
constitute or be deemed a representation, warranty or guarantee of its
accuracy by any of the Companies to the Vendors and the Vendors hereby
waive any claims against each and all of the Companies or their respective
officers, employees, agents, representatives or advisers which they might
otherwise have in respect of the same.
5.8 The Warrantors shall not be liable in respect of any claim under the
Warranties or the Deed of Tax Covenant unless it shall have been made:-
(a) (in the case of claims under the Warranties set out in paragraph 23
of Part 2 of Schedule 2 (tax warranties) or the Deed of Tax Covenant
on or before the expiry of 5 (five) years from and including the end
of the accounting period of the Company current at Completion; or
(b) (in the case of all other Warranties other than as aforesaid and
other than the Environmental Warranties) on or before the expiry of
1 (one) years from Completion; or
(c) in the case of the Environmental Warranties on or before the period
of 3 (three) years from Completion.
5.9 Notwithstanding any other provision of this Agreement, no limitations of
any kind whatsoever shall apply to any claim made hereunder against the
Vendors or any of them where such claim relates to any of the Vendors'
title to the Shares or when it can be proved that such claim is based on
any dishonest or fraudulent act or dishonest or fraudulent omission or
fraudulent or reckless misrepresentation or reckless or wilful concealment
of or by any of the Vendors.
5.10 The Warranties and the Deed of Tax Covenant shall be subject to the
limitations set out at Schedule 9.
6. Restrictive Covenants
6.1 In further consideration of, and as a further inducement to, the Purchaser
entering into this Agreement and for the purpose of assuring to the
Purchaser the full benefit of the Business and goodwill of each of the
Companies, each of the Vendors hereby covenants with and undertakes to the
Purchaser (for the benefit of the Purchaser and as trustee for the benefit
of each of the Companies and their respective successors in title to the
Business) that:-
6.1.1 he shall not during the period commencing on Completion and
expiring eighteen months after Completion either alone or
jointly or in conjunction with or on behalf of or through the
agency of any person and whether as principal, agent, partner,
shareholder, holding company, director, manager, adviser,
consultant, employee or otherwise howsoever and whether
directly or indirectly:-
(a) carry on or participate or assist or be engaged or concerned or
interested (except as the holder or beneficial owner for
investment purposes of not more than 5(five)% in nominal value of
any class of securities listed or dealt in on a generally
recognised stock exchange) in any business in Europe currently
carried on by any of the Companies which competes with any part
of the Business;
(b) in relation to or in connection with any business which may in
any way be in competition with any substantial part of the
Business, procure or seek to procure orders from or do business
with or procure directly or indirectly any other person to
procure orders from or do business with any person who is at
Completion or who has been at any time during the period of 1
(one) year immediately preceding Completion a customer of any of
the Companies;
(c) interfere or seek to interfere or take such steps as may
interfere with the continuance of supplies to any of the
Companies (or the terms relating to such supplies) from any
suppliers who are at Completion or who have been at any time
during the period of eighteen months immediately preceding
Completion supplying materials, components, products, goods or
services to any of the Companies;
(d) solicit or entice away or offer employment to or endeavour to
solicit or entice away or offer employment to any person being
then an employee of the Company or any of the Companies and who
was at the date hereof or who hereafter becomes an employee,
officer or manager of any of the Companies or any of them whether
or not such person would commit a breach of contract by reason of
leaving the employment, office or service of such company; or
(e) enter into partnership with or appoint as a consultant or adviser
any person who is at the date hereof or who hereafter becomes an
employee, officer, manager or representative of or consultant or
adviser to any of the Companies;
The provisions of this Clause 6.1.1 shall not in any way be affected by
the cessation of employment of any of the Executives with any of the Group
Companies.
6.1.2 he shall not at any time after Completion use or adopt or
purport to use or adopt he name of any of the Companies for
any purpose save in furtherance of his duties as an employee
of the Company or do or say anything which is harmful to the
reputation of the Company;
6.1.3 he shall not at any time after Completion save in furtherance
of his duties as an employee of the Company either alone or
jointly or in conjunction with or on behalf of or though the
agency of any person and whether as principal, agent, partner,
shareholder, director, manager, adviser, consultant, employee
or otherwise howsoever and whether directly or indirectly use
or procure the use, in connection with any business, of any
name or any trade name used or owned by any of the Companies
on Completion or any part or combination or abbreviations
thereof likely to be confused therewith or any Intellectual
Property owned or exclusively entitled to be used by any of
the Companies; and
6.1.4 he shall not at any time after Completion disclose or cause to
be disclosed to any person or use for his own purposes or for
any purpose other than those of the Companies any Confidential
Information or any information in relation to which any of the
Companies is bound by an obligation of confidence to a third
party and he shall use his best endeavours to prevent the
publication or disclosure of any such information.
6.2 Each of the Vendors hereby acknowledges and agrees with the Purchaser that
each of the undertakings contained in clause 9.1 constitutes an entirely
separate, severable, independent and separately enforceable restriction on
each of the Vendors and that the duration, extent and application of the
respective restrictions in clause 9.1 are no greater than is reasonable
and necessary for the protection of the legitimate interests of the
Purchaser and each of the Companies but that if any such restriction shall
be adjudged by any court or regulatory authority or agency of competent
jurisdiction to be void or unenforceable but would be valid if part of the
wording thereof was deleted and/or the period thereof and/or the
geographical area dealt with thereby was reduced, the said restriction
shall apply within the jurisdiction of that court or regulatory authority
or agency with such modifications as may be necessary to make it valid,
effective and enforceable.
7. Survival of Obligations
The provisions of this Agreement which shall not have been performed on
Completion shall remain in full force and effect notwithstanding
Completion.
8. Binding on Successors
This Agreement shall be binding upon and enure to the benefit of the
respective parties hereto and their respective personal representatives,
successors and permitted assigns.
9. Waiver, Release and Remedies
9.1 A waiver by the Purchaser of any breach by any party hereto of any of the
terms, provisions or conditions of this Agreement or the acquiescence of
the Purchaser in any act (whether commission or omission) which but for
such acquiescence would be a breach as aforesaid shall not constitute a
general waiver of such term, provision or condition or an acquiescence to
any subsequent act contrary thereto.
9.2 Any remedy or right conferred upon the Purchaser for breach of this
Agreement shall be in addition to and without prejudice to all other
rights and remedies available to it whether pursuant to this Agreement or
provided for by law.
9.3 No failure or delay by the Purchaser in exercising any claim, remedy,
right, power or privilege under this Agreement shall operate as a waiver
nor shall a single or partial exercise of any claim, remedy, right, power
or privilege preclude any further exercise thereof or exercise of any
other claim, right, power or privilege.
9.4 Any liability of any party hereto to the Purchaser under the provisions of
this Agreement may in whole or in part be released, varied, postponed,
compounded or compromised by the Purchaser in its absolute discretion as
regards such party without in any way prejudicing or affecting its rights
against any other party hereto under the same or a like liability whether
joint and several or otherwise. Should any provision of this Agreement
transpire not to be enforceable against any of the parties hereto, such
non-enforceability shall not render such provision unenforceable against
any other party hereto.
10. Counterparts
This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts each of which when
executed and delivered shall constitute an original and all such
counterparts together constituting but one and the same instrument.
11. Assignment
This Agreement shall not be assignable in whole or in part by any party
hereto save with the prior written consent of the other save that the
Purchaser shall be entitled to assign in whole or in part its rights
pursuant to this Agreement to any direct or indirect subsidiary (as such
term is defined in Section 155 of the Companies Act, 1963) of the
Purchaser's ultimate holding company.
12. Notices
12.1 Any notice or other communication to any party hereto (whether
required or permitted to be given under or in connection with this
Agreement or the Deed of Tax Covenant) shall be in writing and shall (at
the option of the party giving the notice) be:-
12.1.1 delivered by hand;
12.1.2 sent by facsimile; or
12.1.3 sent by prepaid post
to the address, in the case of any of the Vendors, set out
under his name in Column 1 of Part 1 of Schedule 1 or, in the
case of the Purchaser, set out below, or to such other address
or facsimile number as is from time to time notified to the
party giving the notice in compliance with the provisions of
this clause 12:-
The Purchaser
Address: United Waste Ireland Limited
Facsimile: 353 1 805 8223
for the urgent attention of the Managing Director.
12.2 Any notice or communication referred to in clause 16.1 shall be deemed to
have been served:-
12.2.1 if delivered by hand, on delivery;
12.2.2 if sent by facsimile, when the sender's facsimile machine
issues confirmation that the relevant pages have been
transmitted to the recipient's facsimile machine; and
12.2.3 if sent by prepaid post, 48 (forty eight) hours after posting.
12.3 Each person giving a notice or making a communication hereunder by
facsimile shall promptly confirm such notice or communication by post to
the person to whom such notice or communication was addressed but the
absence of any such confirmation shall not affect the validity of any such
notice or communication or the time upon which it is deemed to have been
served.
13. Variation
No variation of this Agreement shall be valid unless it is in writing and
signed by or on behalf of each of the parties hereto.
14. Further Assurance and Information
14.1 At the request of the Purchaser from time to time, each of the Vendors
shall (and shall procure that any other necessary person shall) at the
Purchaser's cost and expense execute and do all such documents, acts and
things as may be required subsequent to Completion for assuring to or
vesting in the Purchaser the beneficial ownership of the Shares or
otherwise in order to perfect the right, title and interest of the
Purchaser to the Shares.
14.2 The Vendors shall at the Purchaser's cost provide or procure the provision
to the Purchaser of all information in their possession or under their
control which the Purchaser shall from time to time reasonably require
subsequent to Completion relating to the business and affairs of the
Companies and will give, or procure to be given to the Purchaser, its
advisers and agents such access to (including the right to take copies of)
any documents in their possession or under their control containing such
information as the Purchaser may from time to time reasonably require.
15. Announcement
No announcement or disclosure regarding all or any part of the
transactions contemplated by this Agreement shall be made by any of the
parties hereto without the prior written approval of the other parties
save for any such announcement as is required to be made under any
applicable law in which case the announcement shall be made only after
consultation with the other parties and after the other parties have,
where practicable, been given the opportunity to approve such
announcement.
16. Whole Agreement and Termination of Prior Agreements
16.1 This Agreement and the Greenstar Purchase Agreement and each of the
Supplemental Agreements and the Collateral Agreements contain the whole
agreement between the parties hereto relating to the transactions provided
for in this Agreement and supersedes all previous agreements (if any)
between such parties in respect of such matters and each of the parties to
this Agreement acknowledge that in agreeing to enter into this Agreement
it has not relied on any representations or warranties except for those
contained in this Agreement;
17. Severability
Each of the provisions of this Agreement and the Supplemental Agreements
is separate and severable and enforceable accordingly and if at any time
any provision is adjudged by any court of competent jurisdiction to be
void or unenforceable the validity, legality and enforceability of the
remaining provisions hereof and of that provision in any other
jurisdiction shall not in any way be affected or impaired thereby.
18. Costs
18.1 Each party hereto shall bear any costs, fees or expenses incurred by him
in connection with negotiating, preparing and entering into this Agreement
the Collateral Agreements and the Supplemental Agreements.
19. Governing Law and Jurisdiction
This Agreement, the Collateral Agreements and the Supplemental Agreements
shall be governed by and construed in accordance with the laws of Ireland.
Each of the parties hereto hereby agrees for the benefit of the Purchaser
and without prejudice to the right of the Purchaser to take proceedings in
relation hereto before any other court of competent jurisdiction, that the
courts of Ireland shall have jurisdiction to hear and determine any suit,
action or proceedings that may arise out of or in connection with this
Agreement and for such purposes irrevocably submits to the jurisdiction of
such courts.
19.1 Each of William Bodenham, PDQ Consultants Limited, Seamus Clancy and Paul
Dempsey hereby irrevocably authorises and appoints Matheson Ormsby
Prentice Solicitors. Service on each of Thermo and Thermo Terratech Inc.
of all legal process shall be accepted at the principal place of business
for the time being of Thermo Terratech Inc.
20. Guarantee
20.1 In consideration of the Purchaser entering into this Agreement Thermo
Terratech Inc. hereby unconditionally and irrevocably guarantees to the
Purchaser the due and punctual performance by Thermo of its obligations
pursuant to this Agreement and all other agreements contemplated herein.
20.2 If Thermo shall make default in the performance of any of its obligations
whether financial or otherwise pursuant to any of the agreements referred
to in Clause 20.1 or if Thermo ceases to exist, is wound up or suffers any
similar insolvency event, Thermo Terratech Inc. shall forthwith on demand
by the Purchaser perform such obligations in accordance with their
respective terms.
20.3 The guarantee contained in this Clause 20 shall be a continuing guarantee
and shall continue in full force and effect until all the obligations
arising in respect of the agreements referred to in this Clause 20 have
been paid, discharged or satisfied in full.
IN WITNESS whereof this Agreement has been duly executed on the date shown at
the beginning of this Agreement.
Schedule 1
Part 1
Vendors and their Shareholdings
Column 1 Column 2 Column 3
Vendor's Name and Address Name and address of the No. of Shares
registered holder where
the shares in the
Company are not
registered in the name
of the beneficial owner.
PDQ Consultants Limited William Bodenham 6,093
Frances house
P.O. Box 175
Sir William Place
St. Peter Port
Guernsey
Channel Islands GY1
Seamus Clancy N/A 3,051
161 Foxrock Park
Foxrock
Dublin 18
Paul Dempsey N/A 1,605
67 St. Assam's Avenue
Raheny
Dublin 5
Thermo EuroTech Ireland N/A 21,356
Limited
1st Floor
Fitzwilton House
Wilton Place
Dublin 2
Part 2
Warrantors
Name
PDQ Consultants Limited
William Bodenham
Seamus Clancy
Paul Dempsey
Thermo EuroTech Ireland Limited
PART 3
Subsidiary Shares
Greenstar Recycling Limited
One Share registered in the name of Thermo Eurotech Ireland Limited
Pipe & Drain Services Limited
One Share registered in the name of Thermo Eurotech Ireland Limited
A Autorod Limited
One Share registered in the name of Thermo Eurotech Ireland Limited
Green Sunrise Industries Limited
One Share registered in the name of Thermo Eurotech Ireland Limited
Schedule 2
Part 1
Warranties
Index
1. Share Capital
2. Capacity and Authority of Vendors
3. Commissions
Warranties
1 SHARE CAPITAL
1.1 The Shares are beneficially owned by the Vendors in the proportions set
out opposite their names in Column 3 of Part 1 of Schedule 1 free from any
Encumbrances whatsoever and from any agreement, obligation or commitment
to create, grant, give or permit to subsist any Encumbrances whatsoever
and the Vendors are entitled to sell and transfer to the Purchaser the
full legal and beneficial ownership of the Shares free from any
Encumbrance on the terms of the Agreement.
1.2 The Shares comprise the whole of the allotted and issued share capital of
the Company and all of them are fully paid up including for the avoidance
of doubt in respect of any amounts payable by way of premium.
1.3 No person has the right (whether actual or contingent) to call for the
issue, allotment or transfer of any share or loan capital of the Company
under any option or other agreement, arrangement or commitment (including
conversion rights, rights of pre-emption and rights on realisation of
security) and no person has claimed to be entitled to any of the
foregoing.
1.4 There is no Encumbrance over or affecting any of the issued or allotted
share capital or the unissued share or other capital of the Company and
there is no agreement, arrangement or commitment whatsoever to give, grant
or create such Encumbrance and no claim has been made or threatened by any
person to be entitled to any such Encumbrance.
2 CAPACITY AND AUTHORITY OF VENDORS
2.1 Each Vendor has full power and authority to enter into and perform this
Agreement and any other agreement which it is required to enter into
hereunder and to comply with its obligations hereunder or thereunder and
this Agreement constitutes and any such other agreements when executed
will constitute valid, legally binding and enforceable obligations on each
Vendor which is a party thereto in accordance with its or their respective
terms.
2.2 If any of the Vendors is a body corporate:-
2.2.1 it is duly incorporated and validly existing under the laws of the
country of its incorporation and has the power and authority to own
its assets and to conduct the business which it conducts;
2.2.2 all actions, conditions and things required to be taken, fulfilled
and done (including the obtaining of any necessary consents) in
order to:-
(a) enable it to enter into, perform and comply with its obligations
hereunder; and
(b) ensure that those obligations are validly and legally binding and
enforceable,
have been so taken, fulfilled and done; and
2.2.3 its entry into and performance of or compliance with its obligations
hereunder do not violate or exceed any power or restriction granted
or imposed by:-
(a) any law to which it is subject; or
(b) its constitutive documents.
2.3 The entry into, performance of or compliance by each Vendor with its
obligations under the Agreement and any document entered into in
accordance with the Agreement do not :-
2.3.1 violate or constitute a default of any agreement or instrument to
which it is a party or which is binding on it or over its assets; or
2.3.2 result in the existence of, or oblige it to create any security over
those assets.
2.4 No litigation, arbitration or other legal proceedings is current or so far
as the Vendors are aware pending or threatened to restrain (or which would
have the effect of so restraining) the entry into, performance of,
compliance with and enforcement of any of the obligations of the Vendors
hereunder and so far as the Vendors are aware there are no circumstances
which might give rise to any such proceedings or the threat of any such
proceedings.
SCHEDULE 2
Part 2
Warranties
Index
1. Information
2. Interested parties
3. Constitution of the Company
4. Shares in other Companies and Joint Ventures and Partnership
5. Branches
6. Accounts
7. Transactions since the Accounts Date
8. Book Debts
9. Bank and other Borrowings
10. Loans by and Debts due
11. Working Capital
12. Insolvency
13. Intellectual Property and Confidential Information
14. Agreements and Arrangements
15. Assets
16. Work-in-Progress
17. Rental Payments
18. Directors and Employees
19. Pensions
20. Safety, Health and Welfare at Work
21. Environment
22. Properties
Title
Encumbrances
Possession and Enjoyment
Planning
Notices, Orders and Matters affecting the Properties
Covenants and Obligations
Condition and Repair of the Properties
Access and Services
Statutory Obligations
No Other Adverse Matters
Completeness and Accuracy of Documents and Information
Supplied
23. Records
24. Licences
25. Compliance with Laws
26. Investigations
27. Litigation and Disputes
28. Defective Products
29. Service Liabilities
30. Insurance
31. Documents Stamped
32. Companies Act 1990
Investigations
Disclosure of Interests in Shares
33. Grants
34. Breach of Agreements or Arrangements
35. Suppliers and Customers
36. Competition Law
37. Outstanding Offers
38. Business Names
39. Transactions involving Directors
40. Data Protection
41. Software
42. Management Reports
43. Affect of sale of the Shares
Warranties
1 INFORMATION
1.1 All written information given by each of the Companies, the Vendors or
their professional advisers to the Purchaser or to its professional
advisors in the course of negotiations leading to this Agreement was when
given and is at the date hereof true and accurate in all material respects
and is not misleading in any material respect.
1.2 The information set out in the Recitals and in the Schedules is true,
complete and accurate in all material respects and is not misleading in
any material respect.
1.3 All factual information which is to extent necessary to ensure the
enforceability of a certain insurance policy known as the "Dempsey Drums
Limited - Pollution and Remediation Legal Liability Policy" underwritten
by ECS Underwriting on behalf of Reliance National Insurance Company
(Europe) Limited contained in the Environmental Reports was when given
true and accurate in all material respects and the opinions and
assumptions were at the time of such reports to the best of the
information knowledge and belief of the Vendors true and accurate in all
material respects and the Vendors are not aware of any facts or
circumstances arising since the date of each such report which had they
been known at the time of the making of such reports would have rendered
the facts contained therein materially incorrect and the Vendors are not
aware of any material change in the environmental position with respect to
the properties the subject matter of the reports arising since the date of
such reports.
1.4 All facts contained in the report prepared for the Purchaser by BDO
Simpson Xavier dated 22 July 2000 are true and accurate in all material
respects.
2 INTERESTED PARTIES
2.1 No indebtedness or liability (whether actual or contingent and whether or
not quantified or disputed) and no contract, commitment or arrangement is
or has at any time during the 3 (three) years prior to the date hereof
been outstanding between any of the Companies and the Vendors or any
Connected Person of any of them.
2.2 None of the Vendors or any Connected Person of any of them is entitled to
any claim of whatsoever nature against any of the Companies and none of
the Vendors or any Connected Person of any of them has assigned to any
person the benefit of any such claim to which he would otherwise have been
entitled.
3 CONSTITUTION
3.1 The copy of the memorandum and articles of association of each of the
Companies contained in the Disclosure Letter is true and accurate and
complete in all respects and has embodied therein or annexed thereto a
copy of every such resolution or agreement as is referred to in Section
143(4) of the Companies Act, 1963 and no other resolution of any of the
Companies of any kind has been passed by its shareholders (other than
resolutions relating to routine business at annual general meetings) and
since the Accounts Date, no alteration has been made to the memorandum and
articles of association of any of the Companies.
3.2 Each of the Companies have at all times, carried on business and conducted
their affairs in all material 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.
3.3 Each of the Companies have complied with the provisions of the Companies
Acts and all returns, particulars resolutions and other documents required
under any legislation to be delivered on their behalf to the Registrar of
Companies or to any other authority whatsoever have been duly delivered
and were correct and due compliance has been made with all the provisions
of the Companies Acts and other legal requirements, in connection with the
formation of each of the Companies, the allotment or issue of shares,
debentures and other securities, the payment of dividends and the conduct
of its business.
4 SHARES IN OTHER COMPANIES AND JOINT VENTURES AND PARTNERSHIP
None of the Companies have nor have they agreed to become the holder or
beneficial owner of any class of share or other capital (to include loan
capital) of any company (wherever incorporated) and none of the Companies
is nor has agreed to become a member of any joint venture, partnership or
consortium or other unincorporated association (other than recognising
trade associations) and none of them and has not agreed to be or become a
party to any agreement or arrangement for sharing commissions or other
income to include any profit sharing arrangement.
5 BRANCHES
None of the Companies have outside Ireland any branch, agency or place of
business, or any permanent establishment.
6 ACCOUNTS
6.1 The Accounts have been prepared in accordance with the requirements of the
Companies Acts and all other applicable statutes and laws and in
accordance with generally accepted accounting principles and all
statements of standard accounting practice and on a basis consistent with
the audited accounts of the Company for the three years ending on the
Accounts Date, and:-
6.1.1 give a true and fair view of the assets, liabilities (whether actual
or contingent and whether or not quantified or disputed) commitments
and financial position and affairs of the Companies as at the
Accounts Date and of the results of the Companies for its financial
period ending on the Accounts Date;
6.1.2 make proper provision or reserve for all liabilities and capital
commitments of the Companies outstanding at the Accounts Date;
6.1.3 make provision or reserve (in accordance with the principles set out
in the notes included in the Accounts) for all Taxation for which
the Companies were on the Accounts Date or any time thereafter may
have become or may hereafter become liable to be assessed or to pay
or to be accountable in respect of or by reference to the profits,
gains, income, earnings or activities of each of the Companies for
any period ending on or before the Accounts Date and in respect of
all distributions, dividends, loans, advances and payments paid,
due, payable, declared or made prior to the Accounts Date;
6.1.4 make adequate provision or reserve for depreciation and amortisation
of fixed assets of the Companies having regard to their original
cost and estimated life and include no fixed or current assets at a
value greater than their purchase price or production cost or (in
the case of current assets) their net realisable value at the
Accounts Date;
6.1.5 include all of the stock in trade (including raw material and
packaging) and work-in-progress of the Companies at the lower of
cost and net realisable value and write-off or write-down (as
appropriate) all redundant, obsolete and slow moving stock in trade
(including raw material and packaging) and value stock in trade
(including raw material and packaging) and work-in-progress;
6.1.6 make proper and adequate provision or reserve for all bad and
doubtful debts;
6.1.7 do not overstate the value of current or fixed assets; and
6.1.8 do not understate any liabilities (whether actual or contingent).
6.2 The financial position and results shown by the Accounts have not (except
as therein disclosed) to any material extent been affected by any
extraordinary or exceptional items or by inconsistencies of accounting
practice or by any non-recurring items of income or expenditure or by
transactions entered into otherwise than on normal commercial terms or by
any other factor rendering such financial position and results unusual or
misleading in any material respect.
6.3 The accounting reference date of each of the Companies is, and has at all
times been 31 December.
7 TRANSACTIONS SINCE THE ACCOUNTS DATE
Since the Accounts Date:-
7.1 the Companies have carried on their businesses in the ordinary and usual
course and without entering into any transaction, assuming any liability
(whether actual or contingent and whether disputed or not) or incurring
any capital commitment or making any payment not provided for in the
Accounts which is not in the ordinary and usual course of their respective
businesses and without any interruption or alteration in the nature, scope
or manner of their respective businesses;
7.2 there has been no material adverse change in the turnover, financial or
trading position or prospects of any of the Companies and no part of the
business of any of the Companies has been affected by an abnormal factor
and, without prejudice to the generality of the foregoing, there has been
no material adverse change in the assets or liabilities (whether actual or
contingent) of any of the Companies.
7.3 no dividend or bonus or distribution of capital or income has been or is
treated as having been declared, made or paid in respect of any share
capital of any of the Companies and (excluding fluctuations in overdrawn
current accounts with bankers) no loan or loan capital of any of the
Companies has been repaid in whole or in part or has become liable to be
repaid and all dividends or distributions declared, made or paid by any of
the Companies on or prior to the Accounts Date have been declared, made or
paid in accordance with its memorandum and articles of association and the
applicable provisions of the Companies Acts;
7.4 the Companies have not entered into any agreement or transaction:-
7.4.1 for the sale of any assets other than trading stock in the normal
course of business; or
7.4.2 for the acquisition of any assets other than trading stock in the
ordinary and usual course of business nor incurred any capital
expenditure nor has outstanding any commitments for capital
expenditure;
7.5 none of the Companies have paid or agreed to pay to any person (including
any of its present or former officers or employees or any Connected Person
of any of its present or former officers or employees) any amount or sum
or any compensation for loss of office, remuneration, emoluments, expenses
or other payments or benefits whatsoever (whether or not gratuitous) other
than those which are deductible from the profits of the Companies in
computing its corporation tax;
7.6 no debt exceeding an amount of (pound)30,000 owing to any of the Companies
has been deferred, released, reduced, subordinated or written-off or has
proved to any material extent irrecoverable;
7.7 the Companies have each paid their respective creditors in accordance with
their respective credit terms and there are no amounts owing by any of
them which have been due for more than 30 (thirty) weeks;
7.8 there has not been any material damage, destruction or loss (whether or
not covered by insurance) to or affecting any assets which are material to
the businesses of the Companies;
7.9 no material commitment on capital account or capital expenditure in excess
of IR(pound)100,000 has been created, entered into, made, incurred or
agreed to be so created, entered into, made or incurred;
7.10 no liabilities (including contingent liabilities) have been incurred other
than in the ordinary and usual course of trading;
7.11 the authorised share capital of the Companies has not been increased and
no share or loan capital in any of them has been issued, allotted or
agreed to be so issued or allotted;
7.12 the value of the net assets of each of the Companies have not materially
fallen below the value specified in the Accounts;
7.13 the Companies have not repaid, or become liable to repay, any loan or
indebtedness in advance of its stated maturity; and
7.14 None of the amounts secured by the Encumbrances disclosed in the Accounts
has been increased beyond the amount shown in the accounts and no
Encumbrance has been created.
8 MANAGEMENT ACCOUNTS
The Management Accounts have been prepared in accordance with the
accounting policies of the Companies adopted in the Accounts and on a
basis consistent with the previous monthly management accounts of the
Companies and show a fair view of the assets and liabilities, profits and
losses of the Companies as at and to the Management Accounts Date and
there has been no material adverse change in the financial position of the
Companies since the Management Accounts Date.
9 BOOK DEBTS
9.1 No part of the amounts included in the Accounts as owing by any debtors is
overdue by more than 12 (twelve) months or has been released on terms that
any debtor pays less than the full book value of his debt, or has been
written off, or has proved to any material extent to be irrecoverable.
10. BANK AND OTHER BORROWINGS
10.1 Full and accurate details of all overdrafts (to include limits thereon),
loans, loan stock, debentures, acceptance, credits or other financial
facilities outstanding or available to each of the Companies at the date
hereof are contained in the Disclosure Letter and true and correct copies
of all documents relating thereto are contained therein and the Companies
have not done anything nor are there or have there been circumstances
known to the Vendors whereby the continuance of any such overdrafts,
loans, indebtedness or other financial facilities in full force and effect
might be affected or prejudiced or which may give rise to any alteration
in the terms and conditions of same and the Companies are not in default
under any instrument constituting any indebtedness or under any guarantee
of, or security or indemnity for, any indebtedness and there is no reason
why any such indebtedness, guarantee, security or indemnity should be
called or the liabilities thereunder accelerated before their due date (if
any) or any loan facilities terminated.
10.2 There has been no contravention of, or non-compliance with, any provisions
of any of the documents referred to in paragraph 10.1 as being contained
in the Disclosure Letter.
10.3 None of the Companies have received notice (whether formal or informal)
from any lenders, requiring repayment or intimating the enforcement by the
lender of any security which it may hold over any of their assets and
there are no circumstances likely to give rise to a notice.
10.4 Save as disclosed in the Disclosure Letter pursuant to paragraph 10.1
hereof, there are no debts owing by or to any of the Companies other than
debts which have arisen in the ordinary and usual course of its business
and which do not involve an aggregate amount in excess of IR(pound)20,000;
10.5 None of the Companies have factored any of its debts, or engaged in
financing of a type which would not require to be shown or reflected in
its audited accounts.
10.6 The Companies have no bank accounts or deposit accounts other than those
disclosed in the Disclosure Letter and the Disclosure Letter contains bank
statements as of three days prior to the execution of this Agreement of
the credit and debit balances thereon together with details of the
signatories to such accounts and since the date of such statements there
have been no payments out of any such accounts save for routine payments
in the ordinary and usual course of its business and the present balances
of such accounts are not and will not on Completion be materially
different from the balances shown on such statements.
10.7 The total amount borrowed by the Companies (as determined in accordance
with the provision of the relevant instrument) from each of its bankers
does not exceed its approved overdraft facilities and the total amount
borrowed by the Companies from whatever source does not exceed any
limitation on its ability to borrow contained in its memorandum and
articles of association or in any debenture or loan stock deed or other
deed or document executed by it.
10.8 None of the facilities available to the Companies is dependent on the
guarantee or indemnity of, or any security provided by, a third party
other than the Companies.
10.9 So far as the Warrantors are aware neither the acquisition of the Shares
by the Purchaser nor any other thing contemplated in this Agreement, will
result or is likely to result in any of the facilities referred to in
paragraph 10.1 being terminated or maturing prior to its stated maturity.
11 LOANS BY AND DEBTS DUE
11.1 None of the Companies have lent any money which has not been repaid to it
nor owns the benefit of any debt (whether or not due for payment), other
than debts which have arisen in the ordinary and usual course of its
business and which do not involve an aggregate amount in excess of
IR(pound)50,000.
12. None of the Companies have made a loan, which remains outstanding, on
terms entitling it to receive a rate of interest varying with, or a share
of, the profits of a business.
13. INSOLVENCY
13.1 No order has been made or petition presented or resolution passed or
proceedings or action taken or ground arisen for the winding up of any of
the Companies or for or with a view to appointing an examiner, receiver,
administrator, trustee or other similar officer to the any of the
Companies nor has any distress, execution, sequestration, attachment or
other process been levied or entered upon or sued out in respect of any of
the Companies or against any property or asset of any of the Companies nor
is any of the foregoing in the process of being so levied, entered upon or
sued out, nor is there any unfulfilled or unsatisfied judgement, court
order or award outstanding against any of the Companies.
13.2 None of the Companies have ceased payment of any debt and is not insolvent
or unable to pay its debts within the meaning of Section 214 of the
Companies Act, 1963 or Section 2 of the Companies (Amendment) Act, 1990.
No notice has been served on any of the Companies under Section 214(a) of
the Companies Act, 1963 and no arrangement has been or is about to be
entered into by any of the Companies under Section 201 or Section 279 of
the Companies Act, 1963 and no encumbrancer has taken possession or
attempted to take possession of or exercised or attempted to exercise any
power of sale in respect of the whole or any part of the undertaking,
property, assets or revenues of any of the Companies and there exists no
circumstances under which a receiver may be appointed by any person over
the whole or any part of the undertaking, property, assets or revenues of
any of the Companies and there is no unfulfilled or unsatisfied judgment,
ruling, order, award, decree or directive outstanding against any of the
Companies and there has been no delay by any of the Companies in the
payment of any obligation due for payment.
14. INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION
14.1 The business of each of the Companies as now carried on does not involve
the unlicensed use of confidential information, technical data or
Intellectual Property and does infringe any Intellectual Property of any
other person or give rise to a liability to pay compensation and all
licences to the Companies in respect of any such Intellectual Property are
in full force and effect.
14.2 All trademarks used by the Companies is registered in the name of such
Group Company.
14.3 None of the Companies have (save in the ordinary and usual course of its
business) disclosed, or permitted to be disclosed, or undertaken or
arranged to disclose, to any person other than the Purchaser (or its
professional advisers) any of its know-how, trade secrets or Confidential
Information.
14.4 None of the Companies have granted any licence of or right to use or other
concession in connection with its Intellectual Property.
15. AGREEMENTS AND ARRANGEMENTS
15.1 There are in force no powers of attorney or other rights of representation
given by any of the Companies and no person, as agent or otherwise, is
entitled or authorised to bind or commit any of the Companies to any
obligation not in the ordinary and usual course of their respective
businesses.
15.2 The Companies are not party to or bound by and no asset of any of
the Companies is affected by:-
15.2.1any material contract of guarantee, agreement for indemnity or
suretyship outside the ordinary course (whether given by or for the
accommodation of any of the Companies);
15.2.2any consultancy, secondment or other agreement for the provision of
the services of any person by or to any of the Companies (save for
the Consultancy Agreement with PDQ Consultants Limited which is
being terminated on Completion);
15.2.3save for those contracts contained in the Disclosure Letter any
material written contract, transaction, agreement or arrangement
which may be terminated as a result of any change in the control,
management or shareholders of any of the Companies;
15.2.4any contract made otherwise than in the ordinary and usual course of
its business;
15.2.5any agreement or arrangement which involves or is likely to involve
the supply of goods by or to any of the Companies the aggregate
sales value of which would represent in excess of 15% of the
turnover of all of the Companies by reference to the Accounts;
15.2.6any sale or purchase option or similar contract or arrangement
affecting any asset material to the business owned or used by any of
the Companies or by which any of the Companies is bound;
15.2.7any material written agreement or arrangement which will or may by
virtue of the acquisition of the Shares by the Purchaser or other
performance of the terms of this Agreement, result in any other
person who is party to such agreement or arrangement being relieved
of any obligation (whether contractual or otherwise) or becoming
entitled to exercise any right of termination of such agreement or
arrangement or to determine any right or benefit enjoyed by any of
the Companies or to exercise any right, whether under an agreement
or arrangement with, or otherwise in respect of any of the
Companies;
15.2.8any undertaking or assurances material to the business of the
company given to any court or governmental agency, which is still in
force;
16. ASSETS
16.1 The assets included in the Accounts or acquired since the Accounts Date
(other than trading stock subsequently disposed of in the ordinary and
usual course of business or trading stock acquired subject to retention or
reservation of title by the supplier or manufacturer thereof and disclosed
in the Disclosure Letter) and all assets used by the Companies:-
16.1.1 are legally and beneficially owned by each of the respective
Companies free from any Encumbrance or any agreement or commitment to
grant, give or create, or any claim by any person to be entitled to
any Encumbrance and each of the Companies have good and marketable
title to such assets;
16.1.2 are not the subject of any agreement for lease, hire, hire purchase,
conditional purchase or sale on deferred terms save as disclosed in
the Accounts;
16.1.3 are situated in Ireland and are in the possession and under the
control of the Company or one of the Companies; and
16.2 All material assets have been regularly maintained, and in accordance with
safety regulations required by law and, where relevant, in accordance with
the terms and conditions of any applicable leasing or similar agreement.
16.3 The asset register of the Company as at April 2000 (a copy of which is set
out in the Disclosure Letter) comprises a complete and materially accurate
record of all the assets owned or possessed or used by the Companies at
the date hereof.
17. RENTAL PAYMENTS
No circumstance has arisen or is likely to arise in relation to any asset
held by any of the Companies, under a lease or similar agreement, whereby
the rental payment has been, or, in so far as the Warrantors are aware, is
likely to be increased.
18. DIRECTORS AND EMPLOYEES
18.1 The particulars shown in the Schedule 4 are true and complete and no
person not named therein as such is a director or shadow director or
secretary of any of the Companies.
18.2 The particulars shown in the schedule of employees contained in the
Disclosure Letter set out full particulars of the identities, dates of
commencement of employment or appointment to office, and the terms and
conditions of employment of all of the employees and officers of the
Companies at the date hereof and show all payments (to include
remuneration) payable and other benefits and privileges including share
options, profit share or similar benefits provided or which the Company is
bound or accustomed to provide or make to each officer and employee of the
Company and are true and complete and accurate in all material respects.
18.3 During the period to which the Accounts relate and since the
Accounts Date:-
18.3.1no change has been made in the rate of remuneration, or the
emoluments or pension benefits, of any officer, ex-officer or senior
executive of any of the Companies (a senior executive being a person
in receipt of remuneration in excess of IR(pound)75,000 per annum)
nor are any of the Companies under any obligation to make such a
change nor has it made any provision to alter same; and
18.3.2no change has been made in any other terms of employment of any
such officer or senior executive.
18.4 All subsisting contracts of service (or contracts for services) between
any of the Companies and any of their respective directors, officers or
employees, are determinable at any time on 12 (twelve) months' notice or
less.
18.5 No contract of service exists between any of the Companies and a director
or employee in relation to which any of the relevant requirements of
Section 28 of the Companies Act, 1990 have not been fulfilled.
18.6 There are no amounts owing to any present or former officers or employees
of any of the Companies (other than remuneration accrued due or for
reimbursement of business expenses, the aggregate amount of which does not
exceed IR(pound)20,000);
18.7 There are no negotiations nor are any negotiations contemplated, scheduled
or requested for any increase in the remuneration or benefits of any
officer or employee of any of the Companies.
18.8 Save for the agreement with SIPTU a copy of which is contained in the
disclosure letter none of the Companies have entered into any recognition
agreement with a trade union nor have they done any act which might be
construed as recognition.
18.9 None of the Companies nor any of their respective employees, is involved
in any industrial dispute, and so far as the Warrantors are aware no
circumstances exist which might suggest that there will or may be any
industrial dispute involving any of the Companies, or that any of the
provisions of this Agreement may lead to an industrial dispute.
18.10 No executive of any of the Companies, who is in receipt of remuneration in
excess of IR(pound)40,000 per annum, and no officer of any of the
Companies has given or received notice terminating his employment, except
as expressly contemplated in this Agreement, and no such executive or
officer will be entitled to give such notice as a result of the provisions
of this Agreement and so far as the Warrantors are aware no such executive
is likely to leave any of the Companies (whether by reason of an existing
agreement or arrangement or as a result of the proposed acquisition of the
Shares by the Purchaser) after Completion.
18.11 None of the Companies is liable to make any payment to any person under
the Redundancy Payments Acts, 1967 to 1991 and the Protection of
Employment Act, 1977. Each of the Companies insofar as the Warrantors are
aware, have complied, as respect all of its employees, with the Holidays
(Employees) Act, 1973 to 1991, the Minimum Notice and Terms of Employment
Acts, 1973 to 1991, the Anti-Discrimination (Pay) Act, 1974, the Unfair
Dismissals Act, 1977 to 1993, the Protection of Employment Act, 1977, the
Employment Equality Act, 1977, the Worker Protection (Regular Part-time
Employees) Act, 1991, the Payment of Wages Act, 1991, the Terms of
Employment (Information) Act, 1994, the Maternity Protection Act, 1994,
the Adoptive Leave Act, 1995 the Protection of Employment Order, 1996, the
Protection of Young Persons (Employment) Act, 1996 and the Organisation of
Working Time Act 1997.
18.12 Save to the extent (if any) to which provision or allowance has been made
in the Accounts or in the audited accounts of Greenstar Products Limited
for the period ended 31 December 1999:
18.12.1 no liability has been incurred by any of the Companies for breach
of any contract of service or for services, for redundancy payments,
protective awards or for compensation for wrongful dismissal or
unfair dismissal or for failure to comply with any order for the
reinstatement or re-engagement of any employee or for any other
liability accruing from the termination of any contract of
employment or for services;
18.12.2 none of the Companies have made or agreed to make any payment or
provided or agreed to provide any benefit to any present or former
officer or employee or any dependent of any such former officer or
employee in connection with the actual or proposed termination or
suspension of employment or variation of any contract of employment
of any present or former officer or employee; and
18.12.3 no claims have been made for equal pay, sexual or other harassment
nor are any such claims threatened or pending nor so far as the
Warrantors are aware are there any facts or circumstances which may
give rise to such a claim being made.
18.13 There are no training schemes, arrangements or proposals in existence at
the date hereof nor have there been any such schemes, arrangements or
proposals in the past in respect of which a levy may henceforth become
payable by any of the Companies.
19. PENSIONS
19.1 With the exception of the Pension Schemes of the Companies (full
particulars of which are set out in the Disclosure Letter) there is not in
existence nor has any proposal been announced or commitment given (nor are
the Companies under nor will they become under any liability or obligation
(whether legally binding or established by custom)) to establish any
retirement, death or disability benefit scheme for officers or employees
(or any dependant of any of them) of the Companies nor are the Companies
under any obligation (whether legally binding or established by custom) to
or in respect of any present or former officers or employees (or any
dependant of any of them) of any of the Companies with regard to
retirement, death or disability benefits pursuant to which the Companies
are or may become liable to make payments or contributions and no pension
or death or retirement benefit or sickness gratuity or such similar
schemes or arrangements is currently being paid or contributed or has been
promised by any of the Companies to or in respect of any present or former
officer or employee (or any dependant of any of them) of any of the
Companies.
19.2 The Disclosure Letter contains a complete and accurate list and summary
description of the pension scheme (the "Pension Schemes") of the
Companies.
19.3 The Pension Schemes are exempt approved within the meaning of Part I,
Chapter 30 of the Taxes Consolidation Act, 1997 and the Warrantors are not
aware of any matter or circumstance which might prejudice such approval.
19.4 (a) There are attached to the disclosure letter particulars of the Pension
Schemes being complete copies of the trust deeds relating thereto.
(b) All contributions and expenses which under the Pension Scheme have
become payable up to Completion have been or will be duly and
punctually paid.
(c) Save as disclosed in such written details no power or discretion has
been exercised under the Pension Schemes: -
(i) to augment or provide a benefit which is not otherwise augmented
or provided under the Pension Schemes;
(ii) to pay a contribution thereto which would not otherwise have been
paid; or
(iii)to admit to membership an employee or officer who would not
otherwise have been eligible.
(d) As far as the Warrantors are aware the Pension Schemes have at all
times complied and been duly administered in all material respects in
accordance with all applicable legislation, regulations and
requirements including (without limitation):
(i) the provisions of the Pensions Act, 1990 (and any regulations
made thereunder);
(ii) the requirements of the retirement benefits district of the
revenue commissioners for exempt approval and of the Pensions
Board;
(iii)Article 119 of the Treaty of Rome (and any regulations or
directives issued or judgments made thereunder; and
(iv) the documentation by which it is constituted and governed.
(e) So far as the Warrantors are aware the relevant Companies have duly
complied in all material respects with all its obligations under the
Pension Schemes.
(f) (i) All benefits payable under the Pension Schemes on the death of a
member thereof while in an employment to which the Pension
Schemes relates (other than a refund of contributions with
interest where appropriate) are fully insured under policies
effected with a life office authorised under the terms of the
European Communities (Life Assurance) Regulations, 1984, to carry
on life assurance business in the Republic of Ireland at its
normal rates and on its normal terms for persons in good health.
(ii) So far as the Warrantors are aware all information which has been
supplied to any life office which has issued or undertaken to
issue policies for the purpose of the Pension Schemes are true
and complete.
(iii)Such policies are enforceable and there are no grounds on which
the life office might avoid liability thereunder.
(g) (i) No actions, suits or claims (other than routine claims or
benefits) have been made or are pending in respect of the Pension
Schemes by or against the trustees of the Pension Schemes, or any
of the Companies or any employer participating in the Pension
Schemes.
(ii) There is no dispute about benefits payable under the Pension
Scheme.
(iii)There are no circumstances which might give rise to any such
action, suit, claim or dispute under the Pension Schemes.
20. SAFETY, HEALTH AND WELFARE AT WORK
20.1 Insofar as the Warrantors are aware the Companies have duly discharged
their duties and performed their obligations under, and in compliance
with, the Safety in Industry Acts, 1955 and 1980 (the "SIAs") and under
the Safety, Health and Welfare at Work Act, 1989 (the "SHW Act") and all
regulations, directions, notices and orders made or served thereunder and
has complied with any relevant code of practice issued by the National
Authority for Occupational Safety and Health established pursuant to the
SHW Act.
20.2 Insofar as the Warrantors are aware none of the Companies nor any of the
Properties is subject to any investigation or inquiry pursuant to the SIAs
or the SHW Act and no direction, notice or order has been served on any of
them or any of the Properties pursuant to the SIAs or the SHW Act and no
application has been made to court under the SIAs or the SHW Act for an
order restricting or prohibiting the use of any of the Properties or any
part thereof and no prosecution is threatened or pending in respect of any
possible breach of the SIAs or the SHW Act or related regulations.
20.3 None of the Companies is in default in respect of any of its duties or
obligations imposed upon it by the Factories Act, 1955, the Office
Premises Act, 1958, the Mines and Quarries Act, 1965 or the Dangerous
Substances Acts, 1972 to 1979.
21. ENVIRONMENT
21.1 The following words and expressions shall have the following meanings for
the purpose of this paragraph 22 and such other paragraphs in which these
words and expressions appear:-
"Contaminant" shall include any material, substance, chemical, gas,
liquid, waste, effluent, pollutant or contaminant which, whether on its
own or admixed with another, is identified or defined in or regulated by
or pursuant to any Environmental Laws or which upon release into the
Environment presents a danger to the Environment or to the health or
safety or welfare of any person;
"Environment shall include (a) any and all buildings, structures,
fixtures, fittings, appurtenances, pipes, conduits, valves, tanks, vessels
and containers whether above or below ground level, and (b) ambient, air,
land surface, sub-surface strata, soil, surface water, ground water, river
sediment, marshes, wet lands, flora and fauna;
"Environmental Laws" shall mean (a) the common law and (b) all laws,
by-laws, statutes, regulations, rules, orders, instruments, decrees,
directives, decisions, injunctions, rulings and judgments of any
government, local government, international, supranational, executive,
administrative, judicial or regulatory authority or agency whether of
Ireland, the European Union or elsewhere and all approved codes of
practice (whether voluntary or compulsory) relating to the protection of
the Environment or of human health or safety or welfare or to the
manufacture, formulation, processing, treatment, storage, containment,
labelling, handling, transportation, distribution, recycling, reuse,
release, disposal, removal, remediation, abatement or clean-up of any
Contaminant including the provisions of the Public Health (Ireland) Act,
1878, the Fisheries (Consolidation) Act, 1959, the Local Government (Water
Pollution) Acts, 1977 and 1990, the European Communities (Waste)
Regulations, 1979, the Air Pollution Act, 1987, the European Communities
(Environmental Impact Assessment) Regulations, 1989, the Local Government
(Planning and Development) Regulations, 1990, The Environmental Protection
Agency Act, 1992, and the Waste Management Act, 1996 and any amendment
thereto and any and all regulations, orders and notices made or served
thereunder or pursuant thereto;
"Environmental Licence" shall mean any permit, licence, approval,
permission, consent or authorisation required by or pursuant to any
applicable Environmental Laws; and
"Environmental Release" shall mean the spilling, leaking, pumping,
pouring, emitting, releasing, emptying, discharging, injecting, escaping,
leaching, dumping, leaving, discarding or disposing of any Contaminant
into or upon the Environment.
21.2 Each of the Companies and each of their respective operations and
properties is, and has at all times been, in material compliance with all
applicable Environmental Laws and has obtained all requisite Environmental
Licences and is, and has at all times been, in compliance with all such
Environmental Licences and insofar as the Warrantors are aware there are
no circumstances which may give rise to the suspension, cancellation,
revocation or non-renewal of any such Environmental Licences, or which may
lead to the imposition of any onerous or unusual conditions in respect of
any such Environmental Licences whether upon renewal thereof or otherwise.
21.3 Neither the Companies nor any of their present or past operations or
properties is the subject of any outstanding or anticipated investigation,
inquiry, dispute, claim, demand, action, suit, proceeding, litigation,
notice, order, judgment, ruling, decree, citation or award of whatever
nature in relation to any Environmental Release or any breach or alleged
breach of any Environmental Laws or Environmental Licences and so far as
the Warrantors are aware there are no circumstances which may give rise to
any of the foregoing
22 Properties
22.1 Title
22.1.1The Properties comprise all the lands and buildings owned, occupied
or used by the Companies or in which any of the Companies have has
any interest and Schedule 5 contains full and accurate particulars
of the title of the Companies thereto and the description of the
Properties contained in Schedule 5 is a sufficiently accurate and
complete description of such Properties for the purpose of an
assurance, mortgage or charge of the whole thereof.
22.1.2The replies to the queries raised by BCM Hanby Wallace Solicitors
relating to each of the Properties by Matheson Ormsby Prentice
Solicitors are true and accurate in all material respects.
22.2 Completeness and Accuracy of Documents and Information Supplied
All deeds, documents and information supplied for the purpose of deducing
title to any of the Properties in connection with this Agreement are true,
complete and accurate and none of the Companies or Vendors have since
supplying such deeds, documents and information entered into any
transaction affecting the title to, or use or value of, any of the
Properties. ]
23. TAXATION
General
23.1 All Taxation of any nature whatsoever or other sums imposed, charged,
assessed, levied or payable under the provisions of all applicable
legislation relating to Taxation for which any of the Companies is liable
as a result of any act or omission prior to Completion will if and insofar
as such Taxation or other sums ought to be paid prior to or on Completion
have been paid at or before Completion and in particular but without
prejudice to the generality of the foregoing at Completion all amounts due
for payment to the Revenue Commissioners or any other fiscal or revenue
authority in respect of VAT or in respect of the `Pay As You Earn' (PAYE)
regulations from time to time in force will have been paid by the relevant
due dates and at Completion all Social Welfare and Pay Related Social
Insurance contributions (both employer's and employees') due in respect of
the employees of any of the Companies will have been duly paid on their due
payment dates.
23.2 Insofar as the Warrantors are aware each of the Companies has within the
prescribed time periods duly and properly made all returns, computations
and payments and given or delivered to the Revenue Commissioners and all
other relevant fiscal or revenue authorities all notices, accounts and
information required for the purpose of assessing its liability to Taxation
and all such returns, notices, accounts and information are complete and
correct in all material respects and not misleading and none of the
Companies insofar as the Warrantors are aware is and has been or is it
likely to become involved in any dispute with the Revenue Commissioners or
any other relevant fiscal or revenue authority in relation to any matter
concerning its liability or potential liability to Taxation and the
Warrantors are not aware of any matter or circumstance which may lead to
any such dispute and there is no appeal by any of the Companies pending
against any assessment to Taxation.
23.3 Insofar as the Warrantors are aware each of the Companies has properly
operated the PAYE system of deduction of and accounting to the Revenue
Commissioners for tax chargeable on the remuneration of its employees and
has properly operated the Pay Related Social Insurance system and has
accounted to the Revenue Commissioners for all deductions made thereunder
or provided in full for same in the Accounts and in respect of Green Star
Products Limited in the audited accounts of Greenstar Products Limited for
the period ended [?].
23.4 Insofar as the Warrantors are aware each Group Company has complied in all
material respects with Part 41 of the TCA in relation to the making of
returns, payments of preliminary tax and all other requirements therein
provided for.
23.5 Insofar as the Warrantors are aware no surcharge for late submission for
returns under Section 1084 of the TCA has or will be or become payable by
any of the Companies in respect of any period prior to Completion.
23.6 Insofar as the Warrantors are aware no notice of attachment has been served
on any of the Companies under Section 1002 (2) (attachment of defaulter's
funds) of the TCA.
23.7 Insofar as the Warrantors are aware there is no appeal by any of the
Companies pending against any assessment to tax and none of the Companies
is in default in payment of any tax within the period prescribed for
payment thereof.
23.8 No change of ownership of any of the Companies within the meaning of
Section 401 of the TCA has taken place.
23.9 Insofar as the Warrantors are aware the Companies have complied with the
requirements of Section 239 (payment made under deduction of tax) of the
TCA and with the requirements of all other provisions relating to the
deduction and withholding of tax at source up to the date hereof and all
such tax which has become due to the Revenue Commissioners has been paid to
the Revenue Commissioners.
23.10None of the Companies is liable nor has it at any time since the Accounts
Date insofar as the Warrantors are aware been liable to pay interest on
overdue Taxation.
23.11Insofar as the Warrantors are aware no Group Company has committed any act
or made any omission which might constitute an offence under Section 1078
or 1079 (aiding, abetting, assisting etc. tax evasion) of the TCA.
Residence
23.12Each of the Companies is resident in Ireland for the purposes of Taxation
and has not been at any time resident in any jurisdiction other than
Ireland for Taxation purposes nor has it been at any time managed or
controlled in or from any country other than Ireland and none of the
Companies has at any time carried on any trade in any other country and no
Group Company has any permanent establishment outside of Ireland.
Capital Gains Tax/Capital Acquisitions Tax
23.13None of the Companies has made any transfer as is referred to in Section
589 of the TCA or received any asset by way of gift as mentioned in Section
978 of the TCA.
23.14Insofar as the Warrantors are aware none of the Companies has entered into
any transaction which has, will or may give rise to a charge to tax under
the provisions of the TCA.
23.15is no unsatisfied liability to capital acquisition tax attached or
attributable to any shares in the capital of any of the Companies and no
shares in the capital of any of the Companies are subject to a charge in
favour of the Revenue Commissioners.
23.16Insofar as the Warrantors are aware no person is liable to capital
acquisitions tax attributable to the value of any of the shares in the
capital of any of the Companies and in consequence no person has the power
to raise the amount of such tax by sale or mortgage of or by a terminable
charge any shares in the capital of any of the Companies or any assets in
any of the Companies.
23.17None of the Companies has been party to or involved in any share for share
exchange nor any scheme or reconstruction or amalgamation such as are
mentioned in Section 583 to 588 (inclusive) or Section 600 (1) to (5) of
the TCA or Section 615 of the TCA under which shares or debentures have
been issued or any transfer of assets effected.
23.18None of the Companies has made any claim for "roll-over relief" under
Section 597 of the TCA.
23.19No claim has been made by any of the Companies under Section 1005 of the
TCA.
23.20There have been no claims under Section 538(2) (capital losses allowed
where no sale) of the TCA.
Group
23.23None of the Companies has at any time since its incorporation and ending on
the date hereof acquired any assets other than trading stock from any
company which at the time of the acquisition was a member of the same group
(as defined in Section 616 and Section 590 (11) of the TCA).
23.22None of the Companies has and will at any time hereafter in respect of any
period up to Completion become liable to make a subvention payment or any
other payment for an amount surrendered by any other company under or in
connection with the provisions of Section 411 of the TCA.
23.23No allowable loss which has arisen or which may hereafter arise in respect
of any period prior to Completion on the disposal by any of the Companies
of shares in or securities of any company is liable to be disallowed in
whole or in part by virtue of the application of Section 623 (transactions
in a group) or Section 622 (dividend stripping) of the TCA.
Miscellaneous Taxation Issues
23.24None of the Companies has entered into any financing or leasing agreement
in which or in connection with which it has indemnified any other person
against any claim, loss or other liability arising from any change in
taxation legislation or in the interpretation of taxation legislation.
Capital Allowances/Fixed Assets
23.25 The restrictions on the use of capital allowances for certain leased
assets as set out in Section 403 (use of capital allowance against leasing
income only) of the TCA do not have application to any transaction entered
into by any of the Companies.
23.26 The provisions of Section 317 (capital allowances net of grant) of the TCA
do not apply to any expenditure incurred by any of the Companies.
23.27 No asset has been disposed of by any of the Companies to a Connected
Person of any Of the Companies or otherwise than at an arm's length.
23.28 On a sale of any machinery and plant at the value thereof shown in the
Accounts no balancing charge will be incurred.
23.29 Where fixed assets have been stated in the Accounts or in the case of
Greenstar Products Limited the audited accounts of that Company for the
period ended 31 December 1999 in excess of their cost any potential
liability to Taxation on chargeable gains that would accrue on the sale of
these assets at their values stated are either fully provided for or
disclosed by way of a note in the Accounts.
23.30 All plant and machinery in respect of which any of the Companies has
claimed first-year allowances was acquired for the purposes of that
company's trade and belonged to the Company at some time during the
chargeable period related to the incurring of the expenditure thereon and
no circumstances have arisen which could result in any such allowances
previously made being withdrawn.
23.31 Any machinery or plant provided for use for the purposes of the trade of
any of the Companies after 1 April 1998 is used wholly and exclusively for
the purpose of the trade of each of the Companies.
Stamp Duty/Capital Duty
23.32 No relief or exemption or reduction has been obtained or claimed by any of
the Companies in respect of any capital duty or stamp duty.
23.33 All documents in the possession or under the control of any of the
Companies which attract or may attract stamp duty have been properly
stamped and all other capital and/or stamp duty howsoever arising or
payable has been paid by the relevant company and there is no outstanding
liability therefor or interest thereon.
Vat
23.34 Each of the Companies is a registered and taxable person for the purposes
of the VAT Act and has complied in all material respects with such
legislation and all regulations made or notices issued thereunder and has
maintained full, complete, correct and up to date records, invoices and
other documents (as the case may be) appropriate or requisite for the
purposes thereof.
23.35 No arrangement exists or has existed whereby pursuant to Section 8 (8) of
the VAT Act and Regulation 5 of the VAT Regulations, 1979 the business
activities of any of the Companies are or were deemed to be carried on by
any other person or the business activities of any other person are or
were deemed to be carried on by any Group Company (membership of a group
for VAT purposes).
23.36 None of the Companies has received authorisation under Section 13A VAT Act
whereby supply of qualifying goods and qualifying services to, or the
intra-community acquisition or importations of qualifying goods by
qualifying persons are chargeable at the rate of zero per cent.
23.37
23.37.1 None of the Companies is in arrears with its payment or
returns or notifications under the VAT Act, regulations or
notices or liable to any abnormal or non-routine payment or
any forfeiture or penalty or to the operation of any penal
provisions contained therein.
23.37.2 None of the Companies has been required by appropriate fiscal
authorities to give security under the VAT Act.
23.37.3 None of the Companies has availed of the procedures in Section
58 of the Finance Act 1989 whereby a trader may account and
make returns for VAT purposes other than after each 2(two)
monthly taxable period.
Close Company
23.38 None of the Companies has since the Accounts Date made or paid any
dividend or other distribution (other than those for which full reserve or
provision was made in the Accounts) or any such loan or advance as is
referred to in Section 438 of the TCA.
23.39 None of the Companies has ever incurred any expense or paid any amount in
consequence of which any of the Companies has been or could be treated
under Section 436 or Section 437 of the TCA as having made a distribution
treatment of expenses as dividends.
23.40 There has not been in respect of any accounting period any excess of
distribution investment and estate income within the meaning of Section
434 (surcharge on investment income) of the TCA.
Employee Benefits
23.41 No Group Company has made any payment to or provided any benefit for any
officer or employee of any of the Companies which is not allowable as a
deduction in calculating the profits of the Companies for Taxation
purposes.
23.42
23.42.1 None of the Companies has paid nor has it agreed to pay
remuneration to its officers in excess of such amount as will
be deductible in computing the taxable profits of such
company.
23.42.2 None of the Companies has paid nor has it agreed to pay and
will not up to Completion pay or agree to pay remuneration or
compensation for loss of office or make any gratuitous payment
or any other payment in respect of management or other
services rendered or to be rendered to such company to
any of its present or former officers or employees which will
not be deductible in computing the taxable profits of such
company.
23.42.3 None of the Companies has within the meaning of Chapter I of
Part 18 of the TCA received payment in respect of professional
services from an accountable person (withholding tax on
professional fees).
23.43 In respect of Section 10 of the Finance Act, 1986 no circumstance exists
which would lead the Revenue Commissioners to withdraw approval of the
scheme or to contend that any of the Companies is not a qualifying company
carrying on a specified trade.
Distributions
23.44 Save for the BES Scheme in Greenstar Products none of the Companies has
repaid share capital or any part thereof and no none of the Companies has
issued as paid up otherwise than by the receipt of new consideration any
new shares.
23.45 No distribution has been made by any of the Companies since 5 April 1976
within the meaning of Sections 130 to 134 (inclusive) of the TCA except
dividends and interest shown in its audited accounts.
23.46 Section 138 (treatment of dividends on certain preference shares) of the
TCA does not apply to any dividend paid by any of the Companies in respect
of its preference shares.
23.47 None of the Companies has:-
23.47.1 capitalised or agreed to capitalise in the form of shares,
debentures or other securities or in paying up any amounts
unpaid on any shares, debentures or other securities any
profits or reserves of any class of description or passed or
agreed to pass any resolution to do so; or
23.47.2 provided capital to any company on terms whereby the company
so capitalised has in consideration thereof issued shares,
loan stock or other securities where the terms or any such
capitalisation were otherwise than by way of a bargain made
at arm's length or where the shares, loan stock or other
securities acquired are shown in the Accounts at a value in
excess of its market value at the time of acquisition.
Rental/Premium
23.48 None of the Companies has effected or entered into any act transaction or
arrangement of any nature whereby it has incurred or may hereafter incur
any liability under or by virtue of any of Sections 98, 99, 100 and 103
(treatment of premiums on rental income) of the TCA.
Manufacturing Relief
23.49 None of the Companies has ever claimed relief under Chapter I or II of
Part 14 (manufacturing relief) of the TCA and the existing operations of
the Group Company will continue not to qualify for the relief and there is
no dispute with the Inspector of Taxes with regard to this relief.
23.50 None of the Companies has entered into a transaction by virtue of which it
will be chargeable under Case IV of Schedule D in accordance with Section
815 of the TCA (taxation of income deemed to arise on sales of certain
securities e.g. government/semi-State
stock).
23.51 None of the Companies is liable to any claim in respect of tax due under
Section 530 to 531 (inclusive) and Section 904 (tax deductions from
payments to subcontractors in the construction industry) of the TCA save
in the ordinary course of business.
23.52 The provisions of the Waiver of Certain Tax Interest and Penalties Act,
1993 do not have application to any Group Company or any of its officers.
23.53 None of the Companies has made a relevant investment within the meaning of
Section 481 and Schedule 32 (22) of the TCA.
23.54 No transaction has or had been effected by any of the Companies within the
last 3 (three) years in respect of which any consent or clearance from the
Revenue Commissioners or any other taxation authority was required and
which consent or clearance (as the case may be) was not obtained.
23.55 None of the Companies has paid any royalties which are exempt in the hands
of the recipient from taxation pursuant to Section 234 of the TCA and has
not been a party to the payment of any exempt patent royalty dividends
under the same section.
24 RECORDS
24.1 All proper and necessary books of account, minute books, registers and
records have been maintained by the Companies are in its possession and
contain information in accordance with generally accepted principles
relating to all transactions to which the Companies have been a party and
all such books, registers and records are duly written up to date and do
not contain any material inaccuracies.
24.2 All documents relating to the Companies required to be filed with the
Registrar of Companies pursuant to the Companies Acts or under any other
statute or instrument in force have been duly filed up to date and all
statutory records required to be kept by the Company have been properly
kept.
24.3 The register of members of each of the Companies accurately and
sufficiently records its members from time to time and none of the
Companies have not received any notice of any intended application or
proceedings to rectify the said register.
24.4 Each of the Companies is in possession of all of its books, records,
papers, account ledgers, financial and other records, deeds and documents
of title and all other documents which are owned by or which ought to be
in its possession.
25. LICENCES
25.1 All necessary licences, consents, permits and authorisations (public and
private) have been obtained by or on behalf of the Companies to enable
each of the Companies to properly and effectively carry on their
respective business in the places and in the manner in which such business
is now carried on.
25.2 All of the licences, consents, permits and authorisations referred to in
paragraph 26.1 are valid and subsisting and none of the Companies is in
breach of any of the terms or conditions of any such licence, consent,
permit or authorisation and so far as the Warrantors are aware there is no
reason or circumstance why any of them should be suspended, cancelled or
revoked or not renewed on the same or substantially similar terms.
26. INVESTIGATIONS
There are not in existence, pending or threatened any investigations,
enquiries or disciplinary proceedings by, or on behalf of, any
governmental or other body in respect of any of the Companies or its
affairs and so far as the Warrantors are aware there are no facts likely
to give rise to such investigation, enquiry or proceedings.
27. LITIGATION AND DISPUTES
27.1 None of the Companies is engaged in any litigation, arbitration,
prosecution or other legal, administrative or disciplinary proceedings
(whether as plaintiff or defendant or in whatever capacity) or any dispute
and has not been served with any notice making it a party to any
litigation, arbitration, prosecution or other legal, administrative or
disciplinary proceedings or to any dispute save debt collection (not
exceeding an aggregate of IR(pound)50,000) by or on behalf of any of the
Companies in the ordinary and usual course of its business, and no such
litigation, arbitration, prosecution or other legal, administrative or
disciplinary proceedings or disputes are threatened or pending either by
or against any of the Companies and so far as the Warrantors are aware
there are no facts or circumstances which might give rise to any such
proceedings or dispute.
27.2 There is no dispute with any revenue insofar as the Warrantors are aware
or other official department in Ireland or elsewhere in relation to the
affairs of any of the Companies and there are no facts which may give rise
to a dispute.
27.3 There are no claims pending or threatened, or capable of arising, against
any of the Companies, by an employee or workman or third party, in respect
of any accident or injury, which are not fully covered by insurance.
28. INSURANCE
Details of all the policies of insurance held by the Companies are set out
in the Disclosure Letter and all such policies of insurance are in full
force and effect and so far as the Warrantors are aware there are no
circumstances which might lead to any liability under such insurance being
avoided by the insurers or the premiums being or likely to be increased
and Completion will not have the affect of terminating, or entitling any
insurer to terminate, cover under any such insurance and no claim is
outstanding or may be made under any such policy of insurance and there
are no circumstances which exist or are likely to give rise to any such
claim.
29. DOCUMENTS STAMPED
All documents which in any way affect the right, title or interest of any
of the Companies in, or to, any of its property, undertaking or assets, or
to which any of the Companies is a party, and which attract stamp duty
have been duly stamped and such documents which ought to be in the
possession of the Companies are in their possession.
30. COMPANIES ACT 1990
Investigations
30.1 No application has been made pursuant to Section 7 or Section 8 of the
Companies Act, 1990 (the "1990 Act") for the appointment of an inspector
to investigate the affairs of any of the Companies and no such application
is threatened, anticipated or likely.
30.2 None of the Companies is the subject of or affected by any court order
made pursuant to Section 12 of the 1990 Act or otherwise the subject of or
affected by any proceedings instituted by or against any person as a
result of any investigation of any company's affairs under the 1990 Act.
30.3 None of the Companies is identified or referred to in any inspector's
report made pursuant to Section 11 of the 1990 Act.
30.4 No inspector or inspectors has or have been appointed by the Minister for
Enterprise, Trade and Employment (the "Minister") under Section 14 of the
1990 Act to investigate the ownership of any of the Companies or such
other matters as are provided for in the said Section 14 and no person has
been required pursuant to Section 15 of the 1990 Act to give the Minister
any information as to the persons interested in shares or debentures of
any of the Companies.
30.5 No shares in or debentures of any of the Companies are subject to or have
been issued in contravention of any restriction under Section 16 of the
1990 Act and the Companies are not legally or beneficially interested in
any shares in or debentures of any company which are the subject of any
restriction under or which have been issued in contravention of Section 16
of the 1990 Act.
30.6 No directions have been given to any of the Companies under or pursuant to
Section 19 of the 1990 Act in relation to the production of documents.
Disclosure of Interests in Shares
30.7 Any person who is or has at any time been required under Section 53 of the
1990 Act, to notify any of the Companies of its interests in any shares in
or debentures of any of the Companies and such other matters provided for
therein has duly complied at all times with his obligations under Chapter
1 of Part IV of the 1990 Act.
30.8 The Companies have at all times complied with and continues to comply with
its obligations under Section 59 of the 1990 Act. The register referred to
in Section 59 has been fully, properly and accurately kept and does not
contain any inaccuracies or discrepancies of any kind.
31. BREACH OF AGREEMENTS OR ARRANGEMENTS
31.1 Insofar as the Warrantors are aware none of the Companies is in breach
(whether by commission or omission) of any agreement or contract, to which
it is a party and which is material to its business.
31.2 None of the Companies is as far as the Warrantors are aware in default
(whether by commission or omission) under any contractual or statutory
obligation. which materially adversely affects or may adversely affect the
turnover, trading or financial position, prosperity or prospects of any of
them.
31.3 In so far as the Warrantors are aware No person with whom any of the
Companies have entered into any written agreement is in material default
thereunder or has not complied with its obligations as stated therein,
being a default or a non-compliance which would have a material adverse
effect in the context of the financial or trading position or prospects of
the Companies and there are no circumstances likely to give rise to any
such default or non-compliance.
32. SUPPLIERS AND CUSTOMERS
32.1 Save as disclosed no supplier or customer has accounted for more than 15
(fifteen)% of the aggregate amount of all purchases or sales of the
Companies in any of the 3(three) financial periods immediately prior to
the Accounts Date and since the Accounts Date no supplier or customer has
accounted for more than 15 (fifteen)% of the aggregate purchases or sales
effected by the Companies or any of them since the Accounts Date.
32.2 No substantial customer or supplier of any of the Companies has during the
period commencing 18 (eighteen) months prior to the Accounts Date and
ending on the date hereof ceased or indicated an intention to cease
trading with or supplying any of the Companies.
32.3 None of the Companies have during the period commencing 18 (eighteen)
months prior to the Accounts Date and ending on the date hereof been
affected by the loss of any important customer or supplier or by any
abnormal fact in relation to a customer or supplier or by any disputed
matter which would adversely effect its relationship with any of its
customers or suppliers.
33. COMPETITION LAW
33.1 Insofar as the warrantors are aware none of the Companies is, nor has not
been a party to, engaged in, any agreements, decisions, concerted
practices, arrangements, understandings or activities which are prohibited
or void or in breach of the Competition Act 1991, the Restrictive
Practices (Amendment) Act, 1987, the Mergers, Take-Overs and Monopolies
(Control) Act, 1978, Articles 81 to 90 (inclusive) of the Treaty of Rome
or legislation thereunder or any other competition or anti-trust laws in
whatever jurisdiction or which have or which ought reasonably to have been
notified to the Competition Authority pursuant to the Competition Act,
1991.
33.2 None of the Companies is the subject of any investigation or threatened
litigation by the Minister for Enterprise, Trade and Employment or the
Competition Authority pursuant to the Competition Act 1991.
33.3 None of the Companies has committed any abuse, either alone or jointly
with any other undertaking, of a dominant position within the European
Union or Ireland or a substantial part of the European Union or Ireland.
34. OUTSTANDING OFFERS
No offer, tender or the like is outstanding which is capable of being
converted into an obligation of any of the Companies by acceptance, or
other act, of some other person.
35. BUSINESS NAMES
Save as set out in the Disclosure Letter the Companies do not use a name
other than its full corporate name for any purpose.
36. TRANSACTIONS INVOLVING DIRECTORS
None of the Companies has been a party to any transaction to which any of
the provisions of Part III of the Companies Act 1990 may apply.
37. DATA PROTECTION
37.1 The Companies are not and have never been required to register under the
Data Protection, Act, 1988 (the "Data Act") either as a "data controller"
or as a "data processor".
37.2 Each of the Companies are as regards all "personal data" (as defined in
the Data Act) controlled and/or processed by it complied in all respects
with the data protection principles as set out in Section 2 of the Data
Act.
37.3 The Data Protection Commissioner has not issued any enforcement notices,
information notices or prohibition notices against any of the Companies
pursuant to Sections 10, 11 and 12 of the Data Act respectively.
38. SOFTWARE
38.1 All material software which is used by the Company in connection with its
business is either owned outright by the Company (in which case details
are set out in the Disclosure Letter together with the terms under which
such software was written, commissioned or acquired) or properly licensed
(in which case details of the relevant licences are set out in the
Disclosure Letter). All licences remain valid and subsisting, are not for
a limited duration, are not restricted to the processor on which the
software runs and will not be effected by any change in control of the
Company consequent on the sale of the Shares.
38.2 Each of the Companies has full and complete copies of all source codes of
all material software which it owns. For all software that is licensed to
any of the Companies, such Company has satisfactory arrangements for
access to the source codes details of which are set out in the Disclosure
Letter.
38.3 Each of the Companies is in full compliance with the provisions of all
software licence agreements, software support and maintenance agreements
and all source code escrow agreements and so far as the Warrantors are
aware none of the parties to such agreements is in breach of any of its
obligations under those agreements.
SCHEDULE 3
Deed of Tax Covenant
THIS DEED OF TAX COVENANT is made on 26th July 2000 BETWEEN
(1) PDQ CONSULTANTS LIMITED of Frances House, P.O. Box 175, Sir William Place,
St. Peter Port, Guernsey, Channel Islands;
SEAMUS CLANCY of 161 Foxrock Park, Foxrock, Dublin 18
PAUL DEMPSEY of 67 St. Assam's Avenue, Raheny, Dublin 5
THERMO EUROTECH IRELAND LIMITED of Fitzwilton House, Wilton Place, Dublin
2
WILLIAM BODENHAM of 36 Christian Road, Douglas, Isle of Man
(together the "Covenantors" and each a "Covenantor");
AND
(2) UNITED WASTE IRELAND LIMITED a company incorporated under the laws of
Ireland having its registered office at 33 Elm Road, Donnycarney, Dublin 9
(the "Purchaser")
WHEREAS:-
This Deed is entered into pursuant to the provisions of a certain agreement for
the sale and purchase of shares of even date herewith made between (1) the
Persons named in Schedule 1 Part 1; (2) the persons named in Schedule 1 Part 2;
(3) the Purchaser; and (4) Thermo Terratech Inc.
(the "Agreement").
NOW IT IS HEREBY AGREED as follows:-
1. Interpretation
In this Deed:-
1.1 unless the context otherwise requires or unless otherwise specified
all words and expressions defined in the Agreement shall have the
same meaning in this Deed and any provisions in the Agreement
concerning matters of construction or interpretation shall also
apply in this Deed;
1.2 "Claim For Taxation" means any claim, notice, demand, assessment,
letter or other document made or issued or any action taken or
omission made by or on behalf of the Revenue Commissioners or the
Inland Revenue or any revenue or fiscal authorities, customs and
excise authorities or any other statutory or governmental authority,
agency, body or official whatsoever in any part of the world whereby
any Group Company is or may be placed or sought to be placed under a
Liability To Taxation (whether or not it is primarily payable by
such Group Company and whether or not such Group Company has or may
have any right of reimbursement);
1.3 "Liability To Taxation" means any liability whatsoever to make a
payment of or in respect of Taxation and includes:-
1.3.1 the loss, reduction or non-availability of any Relief which
has been treated as an asset of any Group Company in preparing
the Accounts and would otherwise have been available to any
Group Company and/or the setting-off of any Relief which has
been treated as an asset of any Group Company in preparing the
Accounts and would otherwise have been available to any Group
Company against any profit, income, gain or receipt or deemed
profit, income, gain or receipt; and
1.3.2 the nullifying, cancellation, set-off or reduction of a right
to repayment of Taxation which has been treated as an asset of
any Group Company in preparing the Accounts and would
otherwise have been available to any Group Company,
and in each such case the amount of the Relief so lost,
counteracted, clawed back or set-off or the amount of repayment
which would otherwise have been obtained shall be treated as an
amount of Taxation for which a liability has arisen and fallen due
on the date (in the case of a Liability To Taxation falling within
clause 1.3.1 and for 1.3.2) falling ten (10) days after the date
when the Covenantors have been notified by the Purchaser or any
Group Company that the auditors of the Group Company have certified
that the Covenantors have a liability for a specific amount under
this Deed;
1.4 "Relief" means any relief, allowance, exemption, credit, deduction
or set-off of whatsoever nature in computing any Liability to
Taxation or any credit against Taxation or in computing or against
any profit, income, gain or receipt of whatsoever nature howsoever
arising;
1.5 "Revenue Authority" means any tax, revenue or fiscal authority
(including the Revenue Commissioners) and any other statutory,
governmental, state, provincial or local governmental authority,
body, court, tribunal or official whatsoever (whether of Ireland or
elsewhere in the world) competent to impose, administer or collect
any Taxation or make any decision or ruling on any matter relating
to Taxation;
1.6 "Tax" or "Taxation" means within Ireland, income tax, corporation
tax, advance corporation tax, capital gains tax, capital
acquisitions tax, inheritance tax, capital transfer tax, deposit
interest retention tax, gift tax, value added tax, dividend
withholding tax, probate tax, sales tax, customs and other import
and export duties, excise tax, wealth tax, property tax, residential
property tax, vehicle registration tax, rates, pay-related social
insurance pay as you earn tax, withholding tax (whether in respect
of any payments or otherwise), and any other taxes, levies, duties,
charges, surcharges, imposts or withholdings corresponding to,
similar to, replaced by or replacing any of them, together with all
and any penalties, interest, fines and charges relating to any of
them or to any failure to file any return required for the purposes
of any of them;
and outside Ireland, all taxes, levies, duties, charges, surcharges,
imposts, and withholdings of any nature whatsoever, including
(without limitation) taxes on gross or net Profits and taxes on
receipts, sales, use, occupation, franchise, value added and
personal property, together with all and any penalties, interest,
fines and charges relating to any of them or to any failure to file
any return required for the purposes of any of them,
regardless (in either case) of whether any such taxes, levies,
duties, charges, surcharges, imposts, withholdings, penalties, fines
and interest are chargeable directly or primarily against or
attributable directly or primarily to the Group Companies or any
other person and of whether any amount in respect of any of them is
recoverable from any other person as mentioned in clause 6 (Recovery
from Third Parties);
1.7 "Transactions" includes (without limitation) any act, failure to
act, omission, transaction including (Completion), event, death
and/or change of residence;
2 Covenant
Subject to clause 3 hereof the Covenantors hereby covenant with the
Purchaser to 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:
2.1 any Liability To Taxation in respect of, by reference to or in
consequence of:-
2.1.1 any act, omission, event or transaction occurring or entered
into on or before the Accounts Date;
2.1.2 any income, profit, gain or receipt earned, accrued or
received or deemed to have been earned, accrued or received on
or before the Accounts Date; or
2.1.3 any dividend or distribution paid or made or deemed to have
been paid or made on or before the date of this Deed; and
2.2 all reasonable out-of-pocket legal and accountancy costs and
expenses reasonably and properly incurred in relation to any
demands, actions, proceedings and claims in respect of any Liability
To Taxation in respect of any of the matters referred to in clauses
2.1.1 to 2.1.3 (inclusive).
3 Limitations and Exclusions
3.1 The covenant given in clause 2 (Covenant) shall not cover any Liability To
Taxation of the Group Companies:-
3.1.1 to the extent that :-
provision or reserve for such Liability To Tax was made in the
Accounts or to the extent that such Taxation was discharged (whether
by payment or by the utilisation of any Relief other than a Relief
which has been treated as an asset in the Accounts) prior to the
Accounts Date and such discharge was reflected in the Accounts;
3.1.2 to the extent that such Liability To Tax would not have arisen but
for a voluntary transaction, act or omission effected by any of the
Group Companies at any time after Completion, other than any such
transaction, act or omission:-
(i) carried out or effected in either the ordinary course of
trading (as carried on at Completion); or
(ii) carried out or effected under a legally binding commitment
created on or before Completion;
3.1.3 to the extent that such Liability To Tax arises or is increased as a
consequence only of any change in law or practice or the withdrawal
of any concession by a Revenue Authority or a change in accounting
practice or principles entering into force after Completion with
retrospective effect;
3.1.4 to the extent that such Liability To Tax arises or is increased as a
consequence only of any increase in any rate of Taxation entering
into force after Completion with retrospective effect;
3.1.5 to the extent that the Purchaser has made recovery in respect of
that Liability To Tax by means of a claim for breach of any warranty
contained in the Agreement;
3.1.6 to the extent that that Liability To Tax would not have arisen or
would have been reduced but for a failure or omission on the part of
the Purchaser and/or any of the Group Companies after Completion to
make any election or claim any Relief, the making or claiming of
which was taken into account in computing the provision or reserve
for Tax in the Accounts;
3.1.7 to the extent that that Liability To Tax has been made good by
insurers or otherwise compensated for without cost to the Purchaser
and/or any of the Group Companies;
3.1.8 to the extent that that Liability To Tax arises or is increased as a
result of any failure by the Purchaser and/or any of the Group
Companies to comply with any of the obligations contained in clause
5 (Claims), 7 (Returns), 9 (Obligation to Mitigate), 10 (Group
Relief) or 11 (Counter Covenant);
3.1.9 to the extent that that Liability To Tax arises by reason of a
voluntary disclaimer after Completion by any of the Group Companies
of the whole or part of any capital allowance to which any of them
is entitled or by reason of an amendment to or withdrawal of a claim
for capital allowances or by reason of the revocation by any of the
Group Companies after Completion of any claim for Relief made by any
of them prior to Completion;
3.1.10to the extent that any Profits to which that Liability To Tax is
attributable were not reflected in the Accounts but were actually
earned or received by or actually accrued to any of the Group
Companies;
3.1.11to the extent that that Liability To Tax arises as a result of any
changes after Completion in the accounting methods or policies of
the Purchaser and/or any of the Group Companies; or
3.1.12to the extent that that Liability To Tax would not have arisen but
for a cessation of, or any change in the nature or conduct of, any
trade carried on by any of the Group Companies, being a cessation or
change occurring on or after Completion.
3.2 The liability of the Covenantors under both this deed and the warranties
set out in Schedule 2 to the Agreement in respect of all Liabilities To
Tax however and whenever arising shall not exceed in aggregate 50% of the
total consideration payable for the Shares under clause 3 of the
Agreement.
3.3 This deed shall be subject to the limitations set out at Schedule 9
of the Agreement.
4 Payment
4.1 All sums payable by the Covenantors under this Deed shall be paid free and
clear of all deductions and withholdings and free and clear of any set-off
or counter claim provided however that if any such deduction or
withholding is required by law, the Covenantors shall pay to the relevant
party hereto such additional amount as shall be required to ensure that
the net amount received by such party shall equal the full amount which
that party would have been entitled to receive if no such deduction or
withholding had been made.
4.2 If any sum payable by the Covenantors to the Purchaser under this Deed
shall be subject to a Liability to Tax in the hands of the Purchaser, the
Covenantors shall be under the same obligation to make an increased
payment in relation to that Liability to Tax as if the liability was a
deduction or withholding required by law.
5 Claims
5.1 If the Purchaser or any of the Group Companies becomes aware of any Claim
For Taxation relevant for the purposes of this deed, the Purchaser shall
give notice of or shall procure that notice thereof is given as soon as
practicable (and in any event, in the case of an assessment to Taxation,
within ten (10) Business Days of becoming aware of the same) to the
Covenantors in the manner hereinafter provided and (without prejudice to
clause 4 (Payment)) as regards any such Claim For Taxation the Purchaser
shall itself or shall procure that any of the Group Companies shall at the
request of the Covenantors take such action and provide such information
and assistance (including, without limitation, access to premises and
personnel) as the Covenantors may request in writing to avoid, dispute,
resist, appeal, postpone, compromise, settle or defend the Claim For
Taxation and any adjudication in respect thereof subject to the Purchaser
and/or the relevant Group Company being indemnified to their reasonable
satisfaction against all reasonable costs and expenses which may be
properly incurred thereby. The Covenantors may request in writing to take
on or take over at their own expense the conduct of any proceedings
arising in connection with any Claim For Taxation as is mentioned above.
5.2 The Purchaser and each of the Group Companies shall be at liberty without
reference to the Covenantors to admit, compromise, settle, discharge or
otherwise deal with any Claim For Taxation if the Covenantors upon
receiving notice pursuant to clause 5.1 above do not within thirty (30)
Business Days make any such request in writing as is mentioned in clause
5.1 above.
5.3 If the Covenantors make any such request in writing as is referred to in
clause 5.1, the Purchaser shall procure that the Covenantors or their duly
authorised agents are provided (subject to reasonable notice being given)
with all such correspondence and documentation relating to the relevant
Claim For Taxation as they may reasonably require.
5.4 For the avoidance of doubt and other than in the circumstances specified
in clause 5.2, the Purchaser shall or shall procure that the Group Company
shall notify the Covenantors at least five (5) Business Days prior to the
compromise or settlement of any Claim For Taxation referred to in clause
5.1 or prior to agreeing any matter which may affect the outcome of any
dispute or negotiation with any Revenue Authority in relation to a Claim
For Taxation referred to in clause 5.1.
6 Recovery from Third Parties
6.1 If the Covenantors are due to pay or have paid an amount in respect of
Taxation under this deed, and any Group Company is entitled to immediately
recover or at some subsequent date becomes entitled to recover (whether by
payment, discount, credit, Relief or otherwise) from any person (other
than a Group Company but including any Revenue Authority) any sum in
respect of the Liability To Tax which has resulted in that payment
becoming due from the Covenantors, then the Purchaser shall procure that
the Group Company shall notify the Covenantors of this entitlement to
recover and shall, if so requested by the Covenantors and subject to the
Purchaser and the relevant Group Company being indemnified to their
reasonable satisfaction by the Covenantors against all reasonable costs
and expenses incurred, take all reasonable actions necessary to enforce
that entitlement to recover.
6.2 Where the Covenantors have actually made a payment under this deed in
respect of the Liability To Tax referred to in clause 6.1, the Purchaser
shall account to the Covenantors for the lower of:-
6.2.1 the amount paid by the Covenantors under this deed in respect of
that Liability To Tax; and
6.2.2 the sum recovered by the Group Company in respect of the Liability
To Tax (including any interest or repayment supplement paid by the
Revenue Authority or other person on or in respect of the sum
recovered).
7 Returns
7.1 The Covenantors or their duly authorised agent shall:-
7.1.1 prepare the Tax returns of the Group Companies for all accounting
periods ended on or prior to the Accounts Date, to the extent that
the same shall not have been prepared before Completion;
7.1.2 prepare all documentation and deal with all matters relating to the
Tax returns of the Group Companies for all accounting periods ended
on or prior to the Accounts Date.
7.2 The Purchaser shall procure that the Group Companies shall:-
7.2.1 afford such reasonable access to their records as is required to
enable the Covenantors or their duly authorised agent to prepare the
Tax returns and conduct any matters relating thereto in accordance
with the Covenantors' rights under this clause 7; and
7.2.2 cause the Tax returns mentioned in clause 7.1 to be authorised,
signed and submitted to the appropriate Revenue Authority without
amendment or with such amendments as the Covenantors shall agree and
shall give the Covenantors or their agent all such assistance as may
be required to agree those returns with the appropriate Revenue
Authority.
7.3 Under no circumstances will the Purchaser be obliged to procure that the
Group Companies take any such action as is mentioned in clause 7.2 in
relation to any Tax return that is not full, true and accurate in all
material respects.
8 Over-Provisions and Reliefs
8.1 The Covenantors may request the auditors for the time being of any Group
Company to certify that any provision for Tax in the Accounts (excluding
any provision for deferred Tax) has proved to be an over-provision, and if
the auditors so certify then the amount of such over-provision shall be
dealt with in accordance with clause 8.4.
8.2 The Covenantors may request the auditors for the time being of any Group
Company to certify that any Liability To Tax which has resulted in a
payment having been made or becoming due from the Covenantors under this
deed will give rise to a Relief for any Group Company which would not
otherwise have arisen, and if the auditors so certify then as and when the
liability of any Group Company to make an actual payment of or in respect
of Tax is reduced, by reason of that Relief and after taking account of
the effect of all other Reliefs that are or become available to the
relevant Group Company (including any Relief derived from a subsequent
accounting period), from the amount that that liability would have been
but for the availability of that Relief, the amount by which that
liability is so reduced shall be dealt with in accordance with clause 8.4.
8.3 Where any such certification as is mentioned in clauses 8.1 or 8.2 has
been made, the Covenantors or the Purchaser or the relevant Group Company
may request the auditors for the time being of the relevant Group Company
to review such certification in the light of all relevant circumstances,
including any facts which have become known only since such certification,
and to certify whether such certification remains correct or whether, in
the light of those circumstances, the amount that was the subject of such
certification should be amended.
8.4 Where it is provided under clause 8.1 or 8.2 that any amount (the
"Amount") is to be dealt with in accordance with this clause 8.4:-
8.4.1 the Amount shall first be set off against any payment then due from
the Covenantors under this deed;
8.4.2 to the extent there is a surplus, a refund shall be made to the
Covenantors of any previous payment or payments made by the
Covenantors under this deed and not previously refunded under this
clause up to the amount of such surplus; and
8.4.3 to the extent that the surplus referred to in sub-clause 8.4.2 is
not exhausted under that paragraph, the remainder of that surplus
shall be refunded promptly to the Covenantors.
8.5 If the auditors certify under clause 8.3 that an amount previously
certified should be amended, that amended amount shall be used for the
purposes of clause 8.4 as the Amount in respect of the certification in
question in place of the amount originally certified, and such adjustment
payment as may be required by virtue of such usage shall be made as soon
as practicable by the Covenantors or (as the case may be) to the
Covenantors.
9 Obligation to Mitigate
9.1 If the Covenantors so request in writing, the Purchaser shall procure that
the Group Companies take all such steps as the Covenantors may require
to:-
9.1.1 use all such Reliefs arising as a consequence of or by reference to
any Transaction occurring (or deemed to occur) on or before
Completion or in respect of a period ended on or before Completion
as are available to the Group Companies to reduce or eliminate any
Liability To Tax in respect of which the Purchaser would have been
able to make a claim against any of the Covenantors under this deed
(such Reliefs including, without limitation, Reliefs made available
to a company by means of a surrender from another company), the said
use being to effect the reduction or elimination of any such
Liability To Tax to the extent specified by the Covenantors and
permitted by law, and to provide to the Covenantors, at the
Covenantors' expense, a certificate from the auditors (for the time
being) of the Group Company confirming that all such Reliefs have
been so used;
9.1.2 make all such claims, amendments to claims, withdrawals of claims
and elections specified by the Covenantors in respect of any
accounting period of the Group Companies commencing before
Completion as have the effect of reducing or eliminating any such
Liability To Tax as is mentioned in clause 9.1.1, provided that no
such claims, amendments to claims, withdrawals of claims or
elections shall require the Group Companies to use any Relief which
arises solely as a consequence of or by reference to a Transaction
occurring (or deemed to occur) after Completion or in respect of a
period commencing after Completion; and
9.1.3 allow the Covenantors to reduce or eliminate any Liability To Tax by
surrendering, or procuring the surrender by any company other than
the Group Companies, of Group Relief or to the Group Companies to
the extent permitted by law but without any payment being made in
consideration for such surrender.
10 Group Relief
10.1 The Purchaser shall procure that the Group Companies shall surrender to
the Covenantors or to any subsidiary specified by the Covenantors (upon
receiving a written request from the Covenantors) all such Group Relief as
the Covenantors may decide in their sole discretion in respect of any
accounting period of the Group Companies ended on or before the Accounts
Date.
10.2 The Purchaser agrees that it will, and will procure that the Group
Companies will, use all reasonable efforts to procure that full effect is
given to the surrenders to be made under clause 10.1 (including submitting
all relevant forms) and that such surrenders are allowed in full by any
Revenue Authority.
10.3 The Covenantors shall pay to such of the Group Companies as is the
surrendering company in respect of a surrender under clause 10.1 or, as
the case may be, shall procure that the relevant subsidiary or
subsidiaries of the Covenantors shall pay to that surrendering company a
sum equal to the amount of corporation tax from which the company that is
the claimant company in respect of such surrender has been relieved by
virtue of that surrender being validly and effectively made. However, no
such payments shall be made if and to the extent that payment in respect
of any such surrender has been made on the basis specified in the
foregoing provisions of this clause 10.3 on or before the date of this
deed. Any sum payable under this clause 10.3 shall be paid on the date on
which any corporation tax chargeable on the taxable profits of the company
that is the claimant company in respect of the surrender in question for
its accounting period to which that surrender relates becomes due and
payable (or would have become due and payable had the claimant company
incurred any liability to corporation tax in respect of that accounting
period).
10.4 If any payment is made in accordance with clauses 10.1, 10.2 and/or 10.3
in respect of any surrender of Group Relief made under clause 10.1 and
notwithstanding the surrender, corporation tax is charged (for any reason)
in respect of the taxable profits that the relevant surrender was intended
to relieve from such tax, the Purchaser shall procure that the relevant
Group Company or Companies shall immediately repay to the Covenantors or
to the relevant subsidiary or subsidiaries of the Covenantors either such
part of that sum as is attributable to the element of the surrender that
did not have the effect of relieving from corporation tax the taxable
profits intended to be relieved by virtue of that surrender or, as
relevant, the sum previously paid in respect of the surrender under this
clause 10.
11 Counter Covenant
11.1 The Purchaser, the Group Companies hereby jointly and severally covenant
with the Covenantors to pay to the Covenantors an amount equal to any of
the following:-
11.1.1any liability or increased Liability To Tax of the Covenantors or
any of their subsidiaries which arises as a result of or by
reference to any reduction or disallowance of Group Relief that
would otherwise have been available to the Covenantors or the
relevant subsidiaries where and to the extent that such reduction or
disallowance occurs as a result of or by reference to:-
(i) any total or partial withdrawal or amendment effected by the
Group Companies after Completion of or to any surrender of
Group Relief which was submitted to a Revenue Authority on or
before Completion in respect of any accounting period ended on
or before Completion; or
(ii) any total or partial amendment to a claim or withdrawal of a
claim made by the Group Companies after Completion of any
capital allowances available to the Group Companies in respect
of any accounting period ended on or before Completion;
11.1.2any liability or increased Liability To Tax of the Covenantors or
any of their subsidiaries which arises to or is imposed upon the
Covenantors or any of their subsidiaries where such liability or
increased Liability To Tax is directly or primarily chargeable
against or attributable to another person, firm or company;
11.1.3any out-of-pocket legal and accounting costs and expenses
reasonably and properly incurred by the Covenantors or any of their
subsidiaries in connection with any such Liability to Tax or
increased Liability To Tax (or Claim For Taxation) or in taking any
action under this clause 11.1.
11.2 If the Covenantors become aware of a Claim For Taxation relevant for the
purposes of clause 11.1, the Covenantors shall notify the Purchaser of
that Claim For Taxation in writing, and the Covenantors shall or, as the
case may be, shall procure that the relevant subsidiary of theirs will (if
the Purchaser shall indemnify the Covenantors and/or the relevant
subsidiary of theirs to the Covenantors' reasonable satisfaction against
all losses, costs, damages and expenses, including interest on overdue
Tax, which may be incurred thereby) take such action and give such
information and assistance in connection with the affairs of the
Covenantors and/or the relevant subsidiary of theirs as the Purchaser may
reasonably and promptly request in writing to avoid, resist, appeal or
compromise the Claim For Taxation.
11.3 The Covenantors will be under no obligation to appeal against any
assessment to Tax or to procure that any subsidiary of theirs appeals
against any assessment to Tax if, following notification to the Purchaser
in writing as set out in clause 11.2, the Covenantors or the relevant
subsidiary of theirs have not within fifteen (15) Business Days after
making such notification received instructions in writing from the
Purchaser, in accordance with clause 11.2, to make that appeal.
11.4 The actions which the Purchaser may reasonably request under clause 11.2
shall include (without limitation) the Covenantors and/or the relevant
subsidiary of theirs applying to postpone (so far as legally possible) the
payment of any Tax and/or allowing the Purchaser to take on or take over
at its own expense the conduct of all or any proceedings arising in
connection with the Claim For Taxation in question.
11.5 If the Purchaser becomes liable to make any payment under clause 11.1 the
due date for the making of that payment shall be the date that is three
(3) Business Days before the last date on which the Covenantors or, as the
case may be, the relevant subsidiary of theirs would have had to have paid
to the relevant Revenue Authority the Tax that has given rise to the
Purchaser's liability under clause 11.1 in order to avoid incurring a
liability to interest or a charge or penalty in respect of that Tax. If
any payment required to be made by the Purchaser under clause 11.1 is not
made by the due date for the making thereof, then, except to the extent
that the Purchaser's liability under clause 11.1 compensates the
Covenantors for the late payment by virtue of its extending to interest
and penalties, that payment shall carry interest from that due date until
the date when the payment is actually made at the rate of two per cent,
above the base rate from time to time of Bank of Ireland plc.
11.6 All sums payable by the Purchaser to the Covenantors under this clause 11
shall be paid free and clear of all deductions or withholdings whatsoever,
save only as may be required by law.
11.7 If any deductions and/or withholdings are required by law to be made from
any sums mentioned in clause 11.6 the Purchaser shall be obliged to pay to
the Covenantors such sum as will, after the deductions and/or withholdings
are made, leave the Covenantors with the same amount as they would have
been entitled to receive if no such deductions and/or withholdings had
been required to be made.
11.8 If any sum payable by the Purchaser to the Covenantors under this clause
11 (other than interest under clause 11.5) shall be subject to a Liability
To Tax in the hands of the Covenantors, the Purchaser shall be under the
same obligation to make an increased payment in relation to that liability
to Tax as if the liability were a deduction or withholding required by
law.
12 Liability of Covenantors
For the avoidance of doubt, the Covenantors will not be jointly and
severally liable in respect of any liability to make a payment in
accordance with Clause 2 (Covenant). The Covenantors shall only be liable
to make any payments in respect of any liability to make a payment in
accordance with Clause 2 (Covenant) in the following proportions:-
Seamus Clancy 9.6%
Paul Dempsey 5.00%
PDQ Consultants Limited 19.0%
Thermo EuroTech Ireland Limited 66.4%
13 Miscellaneous
The provisions of clause 13 (Waiver, Release and Remedies), 14
(Counterparts), 15 (Assignment), 16 (Notices), 17 (Variation), 18 (Further
Assurance and Information), 21 (Severability) and 23 (Governing Law and
Jurisdiction) of the Agreement shall apply to this Deed mutatis mutandis.
IN WITNESS whereof this Deed has been duly executed on the date shown at the
beginning of this Deed.
SIGNED SEALED AND DELIVERED
by William Bodenham
in the presence of:-
--------------------------------
(Signature)
- -------------------------------
Witness
- --------------------------------
Address
- --------------------------------
- --------------------------------
Occupation
SIGNED SEALED AND DELIVERED
by Seamus Clancy
in the presence of:-
--------------------------------
(Signature)
- -------------------------------
Witness
- --------------------------------
Address
- --------------------------------
- --------------------------------
Occupation
SIGNED SEALED AND DELIVERED
by Paul Dempsey
in the presence of:-
--------------------------------
(Signature)
- -------------------------------
Witness
- --------------------------------
Address
- --------------------------------
- --------------------------------
Occupation
Present when the Common Seal of
THERMO EUROTECH IRELAND LIMITED
was affixed hereto:-
------------------------------
Director
------------------------------
Director/Secretary
Present when the Common Seal of
UNITED WASTE IRELAND LIMITED
was affixed hereto:-
---------------------------------
Director
---------------------------------
Director/Secretary
Present when the Common Seal of
PDQ CONSULTANTS LIMITED
was affixed hereto:-
---------------------------------
Director
---------------------------------
Director/Secretary
SCHEDULE 4
Directors
GREEN SUNRISE HOLDINGS LIMITED
Names Addresses
John Appleton P.O. Box 2034, 75 Marina Height, New Castle, NH 0385,
USA
Helen Bodenham 36 Christian Road, Douglas, Isle of Man
William Bodenham 36 Christian Road, Douglas, Isle of Man
Seamus Clancy 161 Foxrock Park, Dublin 18, Ireland
Daniel O'Sullivan 5 Beaufort Park, Turners Cross, Co. Cork
Robert Dunlap 94 Crest Road, Wellesley, MA 0248204693 USA
Geoffrey Powell 1 Walnut Street, Acton MA 01720, USA
Godfried Stevens Heinsiuslaan 11, 3818 JE Amersfoort, Netherlands.
Paul Dempsey 67 St. Assams Avenue, Raheny, Dublin 5.
Secretary Sandra Lambert
Assistant Secretary Helen Bodenham
GROUP COMPANIES
GREENSTAR PRODUCTS LIMITED William Bodenham
Helen Bodenham
Fritz Stevens
John Appleton
Seamus Clancy
Leo Donovan
Sandra Lambert as secretary
Helen Bodenham as assistant secretary
GREENSTAR RECYCLING LIMITED William Bodenham
Helen Bodenham
Fritz Stevens
Leo Donovan
Seamus Clancy
John Appleton
Sandra Lambert as secretary
Helen Bodenham as assistant secretary
PIPE AND DRAIN SERVICES LIMITED Helen Bodenham
William Bodenham
Padraic Duggan
Fritz Stevens
Dan O Sullivan
Sandra Lambert as secretary
Helen Bodenham as assistant secretary
GREEN SUNRISE INDUSTRIES LIMITED Helen Bodenham
William Bodenham
Frits Stevens
John Appleton
Seamus Clancy
Sandra Lambert as secretary
Helen Bodenham as assistant secretary
A AUTO ROD LIMITED Padraic Duggan
Helen Bodenham
William Bodenham
Frits Stevens
John Appleton
Sandra Lambert as secretary
Helen Bodenham as assistant secretary
DEMPSEY DRUMS LIMITED Fritz Stevens
Paul Dempsey
Seamus Clancy
SCAFFCO IPR LIMITED Ken Little
Seamus Clancy
William Bodenham
SCHEDULE 5
Limitation of liability under the Warranties and the Deed of Tax Covenant
1. The Purchaser confirms that it has not relied on any warranty,
representation or undertaking of the Vendors (or any of them) or of any
other person save for the representations and warranties expressly set out
in this Agreement.
1.2 Notwithstanding anything to the contrary contained in clause 7 of this
Agreement or the Deed of Tax Covenant, the Warranties and the covenants
contained in the Deed of Tax Covenant shall be qualified by the provisions
of this Schedule 5.
1.3. The Vendors shall not be liable in respect of any claim or claims under the
Warranties or the covenants in the Deed of Tax Covenant to the extent that
the matter or matters giving rise to such claim or claims have been
disclosed in this Agreement (or arise from implementation of same) or in
any of the Schedules to this Agreement or in the Disclosure Letter or
attached to the Disclosure Letter.
1.4 The liability of the Vendors in respect of any breach of the Warranties or
the covenants contained in the Deed of Tax Covenant shall be limited as
follows:-
1.4.1The aggregate maximum liability of the Vendors in respect of any and
all claims under the Warranties and under the Deed of Tax Covenant
(excluding the Environmental Warranty) shall in no event exceed
IR(pound)2 million and the aggregate maximum liability of each Vendor
in respect thereof shall not exceed its Relevant Percentage
(hereinafter defined) of this amount;
1.4.2The aggregate maximum liability of the Vendors in respect of any and
all claims under the Environmental Warranty without prejudice to
clause 1.4.1 above shall in no event exceed IR(pound)1 million and the
aggregate maximum liability of each Vendor under the Environmental
Warranty shall not exceed its Relevant Percentage (hereinafter
defined) of this amount;
1.4.3The Warranties and the covenants contained in the Deed of Tax Covenant
are given by each of the Vendors on a several basis and each of the
Vendors' maximum liability in respect of the amount of any claim or
claims under the Warranties or under the Deed of Tax Covenant shall
subject to paragraph 1.4.1 be its Relevant Percentage (hereinafter
defined) of the total liability in that respect;
1.4.4For the purposes of paragraphs 1.4.1 - 1.4.3 the expression "its
Relevant Percentage" shall mean in relation to each Vendor the
percentage proportion which those of the shares which it is selling
under this Agreement bears to the Shares;
1.4.5The Vendors shall not be liable in respect of any claim under the
Warranties or under the Deed of Tax Covenant unless the loss thereby
sustained exceeds IR(pound)20,000.
1.4.6The Vendors shall not be liable in respect of any and all claims made
by the Purchaser under the Warranties or under the Deed of Tax
Covenant unless and until the aggregate cumulative loss thereby
sustained in respect of any and all such claims (ignoring for these
purposes the amounts of any and all claims in respect of which the
Vendors do not have any liability pursuant to the provisions of
paragraph 1.4.5) exceeds IR(pound)175,000 in which event (subject
always to the provisions of this Schedule 5) the Vendors shall be
liable for the amount of such loss in excess of IR(pound)100,000.
1.5 No claim under the Warranties or under the Deed of Tax Covenant shall be
deemed to have been made unless notice in writing of such claim is served
on the Vendors specifying in reasonably sufficient detail the event, matter
or default which gives rise to the claim, the breach that results and the
amount claimed.
1.6 Subject to paragraph 1.12, any claim in respect of which notice shall have
been given in accordance with paragraphs 1.5 and 1.6 above shall if it has
not been previously satisfied, settled or withdrawn be deemed to have been
irrevocably withdrawn and lapsed unless proceedings in respect of such
claim have been issued and served on the Vendors not later than the expiry
of the period of 6 (six) months from and including the date of such notice.
1.7
1.7.1Where the Purchaser and/or any of the Companies is or is likely to be
entitled to recover from some other person any sum in respect of any
matter giving rise to a claim for breach of the Warranties or under
the Deed of Tax Covenant then the Purchaser and/or the Companies
shall, prior to making any claim, at the election of the Vendors,
either procure that reasonable steps are taken to enforce such
recovery or allow the Vendors subject to the prior consent in writing
of the Purchaser, such consent not to be unreasonably withheld (using
professional advisers nominated by the Vendors) to take on behalf of
the Purchaser and/or the Companies such action and institute such
proceedings as may be reasonably necessary to enforce such recovery
and if any sum is so recovered by, on behalf of or paid to the
Purchaser and/or the Companies then the amount otherwise payable by
the Vendors in respect of that claim shall be reduced by an amount
equal to the sum so recovered (less the Purchaser's and/or the
Companies' reasonable costs and expenses of recovering it and any
taxation payable by the Purchaser and/or the Companies as a result of
its receipt). The Vendors shall fully indemnify the Purchaser and/or
the Companies against all reasonable costs and expenses incurred as a
result of any action taken by the Purchaser, the Companies or the
Vendors, pursuant to this paragraph 1.7.1. For the avoidance of doubt
none of the Vendors shall settle or compromise any claim or action or
proceedings without first obtaining the prior consent in writing of
the Purchaser, (not to be unreasonably withheld).
1.7.2If subsequent to any payment made by the Vendors in respect of a
claim for a breach of any of the Warranties or a claim under the Deed
of Tax Covenant any fact, event or matter occurs or comes to the
knowledge of any of the parties hereto which would entitle the
Purchaser and/or the Companies to recover from some other person in
respect of that claim then the Purchaser and/or the Companies shall,
at the election of the Vendors, either procure that reasonable steps
are taken to enforce such recovery or allow the Vendors subject to the
prior consent in writing of the Purchaser (not to be unreasonably
withheld) (using professional advisers nominated by the Vendors) to
take on behalf of the Purchaser and/or the Companies such action and
institute such proceedings as may be reasonably necessary to enforce
such recovery and there shall be repaid to the Vendors any amounts so
recovered by, on behalf of, or paid to the Purchaser and/or the
Companies (less the Purchaser's and/or the Companies reasonable costs
and expenses of recovering it and any taxation payable by the
Purchaser and/or the Companies as a result of its receipt) or if less
the amount of any such payment by the Vendors. The Vendors shall fully
indemnify the Purchaser and/or the Companies against all reasonable
costs and expenses incurred as a result of any action taken by the
Purchaser, the Companies or the Vendors pursuant to this paragraph
1.7.2.
1.8 Without prejudice to the generality of paragraph 1.7 above the provisions
of paragraph 1.7 shall apply:-
1.8.1where the Companies are entitled to recover from their insurers any
sum in respect of any matter giving rise to a claim under the
Warranties; or
1.8.2to the extent that the Vendors are liable to the Purchaser under the
Warranties or under the Deed of Tax Covenant by reason of an
obligation of the Companies to pay advance corporation tax and the
Companies obtain the benefit of or reduction in liability to
mainstream corporation tax by reason of such payment, then the
Purchaser shall procure that the Companies shall make all such claims
and elections as will result in such benefit or reduction being
obtained as soon as reasonably possible.
1.9 The Vendors (or any of them) shall have no liability (or such liability
shall be reduced) in respect of any claim for breach of any of the
Warranties or any claim under the Deed of Tax Covenant:-
1.9.1if and to the extent that allowance, provision or reserve for or in
respect of the liability or other matter giving rise to such claim has
been made in the Accounts or such liability or matter was specifically
referred to in the notes to the Accounts;
1.9.2if and to the extent that any liability of the Companies included in
the Accounts has been discharged or satisfied below the amount
attributed to it or included in respect of it in the Accounts;
1.9.3if and to the extent that any contingency or other matters provided
against in the Accounts has been over-provided for;
1.9.4if and to the extent that such claim occurs or is increased as a
result of any change in legislation after the date of this Agreement
(or any legislation not in force at the date of this Agreement) which
takes effect retrospectively or the withdrawal after the date of this
Agreement of any published concession or published general practice
previously made by the Revenue Commissioners or other taxing authority
(both within and outside Ireland) or occurs as a consequence of a
change in the interpretation of the law after the date of this
Agreement in any jurisdiction (both within and outside Ireland);
1.9.5if and to the extent that such claim occurs or is increased as a
result of any increase in the rate of taxation in force at the date of
this Agreement;
1.9.6if and to the extent that such claim occurs as a result of or is
otherwise attributable to the Purchaser and/or the Companies
disclaiming any part of the benefit of capital or other allowances
against Taxation claimed or proposed to be claimed on or before the
date of this Agreement;
1.9.7if and to the extent that such claim is attributable to or would not
have arisen or would have been reduced or eliminated but for any
voluntary act, omission, transaction or arrangement carried out after
Completion by the Purchaser, the Companies and/or any subsidiary of
the Purchaser and/or any person connected with the Purchaser and/or
the Companies otherwise than in the ordinary and usual course of
business of the Companies as presently carried on;
1.9.8if and to the extent that such claim would not have arisen or would
have been reduced or eliminated but for the failure or omission on the
part of the Purchaser or the Companies or any subsidiary of the
Purchaser or any person connected with the Purchaser or the Companies
to make any claim, election, surrender or disclaimer or give any
notice of consent or do any other thing under the provisions of any
enactment or regulation relating to Taxation after Completion the
making, giving or doing of which was taken into account in computing
the provision for Taxation in the Accounts;
1.9.9if and to the extent that such claim relates to or is increased by a
claim or liability for Taxation which would not have arisen but for
any winding up or cessation after Completion of any trade or business
carried on by the Companies;
1.9.10if and to the extent such claim would not have arisen or would have
been reduced or eliminated but for a change of accounting policy or
practice of the Companies after Completion;
1.9.11if and to the extent that the Companies are entitled to claim
indemnity against any loss or damage suffered by the Companies arising
out of such breach or claim under the terms of any insurance policy of
the Companies;
1.9.12 if and to the extent of the amount by which any asset of the
Companies shall have been under-stated in the Accounts;
1.9.13if and to the extent that it is attributable to any Taxation which
has been or is (whether before or after Completion) deferred by virtue
of or by reference to any claim, notice or election or other act or
event occurring prior to Completion and liability for which was either
provided for in the Accounts or in accordance with Statements of
Standard Accounting Practice was not so provided, and which either
ceases after Completion to be deferred or, in the case only of an
amount actually provided for in the Accounts has ceased before
Completion to be deferred;
1.9.14if and to the extent that the claim relates to a claim or liability
for Taxation and the Vendors (or any of them) have surrendered or
procured the surrender of amounts which have off set such claim or
liability or could have done so but for a failure by the Companies to
accept such surrender;
1.9.15if and to the extent of any relief or reduction in Taxation arising
by virtue of the loss or damage in respect of which the claim was
made;
1.9.16if and to the extent that such claim has arisen in respect of any act
or omission stipulated to be carried out or omitted pursuant to or
which is contemplated by the terms of this Agreement; and
1.9.17if and to the extent that any benefit accrues to the Purchaser and/or
the Companies in consequence of the event or breach giving rise to
such damages or other amounts.
1.10 In determining the loss sustained for the purposes of the operation of the
limits in paragraphs 1.4.4 and 1.4.5, account shall be taken of all
amounts, available for set off or otherwise liable to be deducted pursuant
to paragraph 1.9.
2
2.1.1Nothing in this Schedule 5 shall derogate from the Purchaser's
obligation to mitigate any loss which it suffers in consequence of a
breach of the Warranties.
2.1.2The Purchaser covenants that it will and will procure that the
Companies take all reasonable steps to mitigate any loss or liability
in respect of any claim under the Deed of Tax Covenant.
2.2 If in respect of any claim under the Warranties or under the Deed of Tax
Covenant, the liability of the Purchaser or the Companies is contingent
only, then the Vendors shall not be under any obligation to make any
payment to the Purchaser or the Companies until such time as the contingent
liability ceases to be contingent and becomes actual
2.3 Neither the Purchaser nor the Companies shall be entitled to recover
damages in respect of any claim for breach of the Warranties or in respect
of any claim under the Deed of Tax Covenant or otherwise obtain
reimbursement or restitution where to do so would involve recovery more
than once in respect of the same loss; for the avoidance of doubt any
recovery by the Purchaser under the Deed of Tax Covenant shall be deemed,
to the extent of that recovery, to be a recovery by all other parties who
would otherwise be entitled to such recovery.
2.4 Any amount payable by the Vendors to the Purchaser in satisfaction of any
claim made under the Warranties or to the Purchaser and/or the Companies
under the Deed of Tax Covenant shall be treated as a reduction of the
Consideration to that extent.
2.5 The Purchaser shall upon it or the Companies becoming aware of any matter
or event (the "Matter") which gives rise or might give rise to a claim
under the Warranties immediately give notice in writing to the Vendors of
the Matter.
2.6 The Purchaser shall provide and shall procure that the Companies will
provide to the Vendors and their professional advisers reasonable access to
premises and personnel of the Purchaser and/or the Companies (as the case
may be) and to any relevant assets, documents and records within their
power, possession, permission or control for the purpose of investigating
the Matter and enabling the Vendors to take such action as referred to in
paragraph 2.11 below and shall allow the Vendors and its advisers to take
copies of any relevant documents or records and the Purchaser shall
furthermore render or cause to be rendered to the Vendors all such
assistance as the Vendors and their professional advisers may reasonably
require in connection therewith.
2.7 The Warranties and the covenants in the Deed of Tax Covenant are given on
the basis of the Companies continuing to carry on business after Completion
as a going concern.
2.8 If, subsequent to any payment made by the Vendors in respect of a claim for
breach of any of the Warranties or a claim under the Deed of Tax Covenant,
any fact, event or matter occurs or comes to the knowledge of the parties
hereto which, had it occurred or come to the knowledge of the parties
hereto prior to such payment, would have reduced the Vendors' liability in
relation to the claim in accordance with paragraph 1.9 the Purchaser shall
repay the Vendors which ever is the lessor of the amount so paid to it
and/or the Companies and the amount by which the Vendors' liability would
have been reduced pursuant to paragraph 1.9.
2.9 In relation only to the conduct of a claim the Purchaser will for a period
of 6 (six) years from and including Completion give to the Vendors and
their representatives reasonable facilities to inspect all of the books,
records and documents relating to the Companies and (at the Vendors' cost)
to take copies and extracts from them at all reasonable times and on
reasonable advance notice.
2.10 The benefit of the Warranties hereby given by the Vendors may not be
assigned in whole or in part by the Purchaser.
2.11
2.11.1It is agreed between the Vendors and the Purchaser that as regards
all accounting periods ended on or before the Accounts Date the
Vendors shall subject to 2.11.2 and 2.11.3 below have sole conduct of
all tax affairs of the Companies and the Purchaser shall procure that
the Companies make such claims or elections and (at the cost of the
Vendors) executes such documents and does such things in that regard
as the Vendors shall reasonably direct. The Vendors shall consult the
Purchaser in relation to all actions taken by it pursuant to the
provisions of this paragraph 2.11.
2.11.2The Purchaser agrees that the Vendors (or such professional advisers
as the Vendors may elect) shall have the sole conduct of the
preparation and submission to the Revenue Commissioners (or other
relevant tax authorities), negotiation, correspondence and agreement
of the tax computations and the profits and losses for tax purposes of
the Companies for the accounting periods ended on or before the
Accounts Date and in respect of which final agreement of the
liabilities to Taxation has not been reached with the Revenue
Commissioners (or other relevant tax authorities) and shall procure
that the Vendors (and their advisers) shall be provided with such
information and assistance and access to such documents and records of
or relating to the Companies as they may reasonably require in that
regard provided that the Vendors shall consult fully and obtain the
prior approval of the Purchaser in respect of any matters or
submissions contemplated in this Clause 2.11 (such consent not to be
unreasonably withheld).
2.11.3 It is agreed between the Vendors and the Purchaser that:-
(a) the Vendors shall pay and be liable for all costs and expenses
reasonably incurred by the Purchaser or the Companies in
complying with the Purchaser's obligations under this paragraph
2.15; and
(b) the Companies and the Purchaser shall be indemnified and secured
to their reasonable satisfaction by the Vendors against all
losses (including any additional Taxation) penalties, fines,
interest, expenses and damages which may be incurred by the
Companies as a result of complying with the Purchaser's
obligations under this paragraph 2.11.
2.11.4Any authorisation, signature or submission by the Purchaser or the
Companies of any returns pursuant to this paragraph and its
co-operation generally under this Agreement shall operate without
prejudice to any rights of the Purchaser and/or the Companies under
any of the Warranties or under the Deed of Tax Covenant.
2.11.5The Vendors shall at all times allow the Purchaser and/or the
Companies to make reasonable representations to the Vendors in respect
of all tax affairs of the Companies for the accounting periods ending
on or prior to the Accounts Date and for this purpose the Purchaser
shall be provided with copies of any proposed letters and/or
submissions to the Revenue Commissioners (or other tax authorities)
before despatch and shall be afforded a reasonable opportunity (not in
any event to exceed 28 (twenty-eight) days from the date the said
letters and/or submissions are sent to the Purchaser) for commenting
on all such letters and submissions and the Vendors shall keep the
Purchaser fully informed of the progress of all such tax affairs and
provide copies to the Purchaser of any other relevant documents and no
such representations and/or letters shall be made without the prior
consent in writing of the Purchaser (such consent not to be
unreasonably withheld).
SIGNED SEALED AND DELIVERED
by PAUL DEMPSEY
in the presence of:-
--------------------------------
(Signature)
- -------------------------------
Witness
- --------------------------------
Address
- --------------------------------
- --------------------------------
Occupation
SIGNED SEALED AND DELIVERED
by SEAMUS CLANCY
in the presence of:-
--------------------------------
(Signature)
- -------------------------------
Witness
- --------------------------------
Address
- --------------------------------
- --------------------------------
Occupation
Present when the Common Seal of
PDQ CONSULTANTS LIMITED
was affixed hereto:-
-----------------------------
Director
-----------------------------
Director/Secretary
Present when the Common Seal of
THERMO EUROTECH IRELAND
LIMITED was affixed hereto:-
------------------------------
Director
------------------------------
Director/Secretary
Present when the Common Seal of
UNITED WASTE IRELAND LIMITED
was affixed hereto:-
------------------------------
Director
------------------------------
Director/Secretary
Signed on behalf of THERMO
TERRATECH INC. in the presence of:-
Signed Sealed and Delivered by
WILLIAM BODENHAM
in the presence of:-
ANNEXURE A
ANNEXURE B