1
EXHIBIT 99.2
Sale Agreement between EPL Flexible Packaging Limited
Printpack Europe (St Helens) Limited
and Printpack Europe Limited
2
Dated 4th July 1996
(1) PRINTPACK EUROPE (ST. HELENS) LIMITED
(2) EPL FLEXIBLE PACKAGING LIMITED
(3) PRINTPACK EUROPE LIMITED
-------------------------------------------
AGREEMENT
for the sale and purchase
of certain assets of
Printpack Europe (St. Helens) Limited
-------------------------------------------
ASJ/APW/(0639923,01)28.06.96
Denton Hall
Five Chancery Lane
Clifford's Inn
London EC4A 1BU
Fax: 0171-404-0087
Tel: 0171-242-1212
3
THIS AGREEMENT is made on 4th July 1996
BETWEEN:
(1) PRINTPACK EUROPE (ST HELENS) LIMITED (the "Vendor") registered in
England under number 314747 whose registered office is at Bridge Hall
Mills, Bridge Hall Lane, Bury, Lancashire BL9 7PA;
(2) EPL FLEXIBLE PACKAGING LIMITED (the "Purchaser") registered in England
under Number 3191165 whose registered office is at 32 Broadstone Road.
Harpenden, Herts AL5 1RG; and
(3) PRINTPACK EUROPE LIMITED (the "Guarantor") registered in England under
number 230365 whose registered office is at Bridge Hall Mills
aforesaid.
WHEREAS:
(A) The Vendor carries on the Business (as hereinafter defined)
(B) The Vendor has agreed to sell and the Purchaser has agreed to purchase
on and with effect from the Completion Date (as hereinafter defined)
certain assets for the consideration and upon the terms and subject to
the conditions hereinafter appearing
(C) The Vendor is in the same group as the Guarantor and the Guarantor has
agreed to guarantee the obligations of the Vendor hereunder
NOW IT IS HEREBY AGREED as follows:
I. INTERPRETATION
1.1 In this Agreement the following words and expressions shall have the
following meanings:
the "ACT": the Companies Acts 1985 to 1989;
the "ASSETS": those assets owned by the Vendor set out in Schedule II;
"ASSOCIATE": in relation to any person or body a group undertaking of
that person or body or another person or body which is an "associate"
of the first mentioned person or body within the meaning of Section 435
of the Insolvency Act 1986;
"the BANK": Child & Co of 1 Fleet Street London EC4Y 1BD;
the "BUSINESS": the business of the conversion and manufacture of
flexible packaging films in particular for the food industry carried on
at the Property by the Vendor;
4
the "CLAIMS": all claims and rights arising after Completion to claim
under any warranty, guarantee or indemnity given by any third party or
under any policy of insurance taken out by the Vendor in relation to
any asset hereby agreed to be sold;
"COMPLETION": completion of the obligations of the parties required
by Clause 6;
"COMPLETION DATE": the close of business on Friday 28th June 1996;
the "DISCLOSURE LETTER": a letter of even date herewith in the agreed
form from the Vendor's Solicitors to the Purchaser's Solicitors and
accepted by the latter immediately before signature hereof;
"the EMPLOYEES": those employees of the Vendor engaged in the Business
whose names are set out in Schedule I;
"the ESCROW ACCOUNT": a deposit account to be opened at Completion in
the joint names of the Purchaser's Solicitors and the Vendor's
Solicitors at the Bank;
"the ESCROW AGREEMENT": the agreement in the agreed form to be entered
into between the parties hereto on Completion relating to the operation
of the Escrow Account;
"ENCUMBRANCE": includes any mortgage, charge, pledge, hypothecation,
lien, assignment by way of security, title retention, option, right to
acquire, right of pre-emption, right of set off, counterclaim, trust
arrangement or other security, preferential right or agreement to
confer security, or any equity or restriction (including any
restriction imposed under the Act);
the "ENVIRONMENTAL LEGISLATION": includes but is not limited to the
Environment Act 1995, the Environmental Protection Act 1990, the Water
Resources Act 1991, the Water Industry Act 1991, the Health & Safety at
Work, etc. Act 1974, the Control of Pollution Act 1974, the Radioactive
Substances Act 1993, the Clean Air Act 1993, the Alkali etc. Act 1906
and all other rules or provisions of treaty, convention, statute, local
law or bylaw, common law or equity or otherwise and of any jurisdiction
(including directives, regulations, circulars, codes of practice and
guidance notes) concerning the environment, waste, pollution,
contamination, noise, radiation, electro magnetic fields, vibration,
health, safety, the conditions of the workplace, the condition of
buildings or structures (including the presence of harmful or
potentially harmful substances) (including, where the context permits,
any license, authorisation or consent issued pursuant to any of the
foregoing);
the "INFORMATION": means
(a) all deeds and documents evidencing title to the Property as
listed in Schedule III;
(b) all training, operating and health and safety manuals and
records relating in each case directly and exclusively to the
Assets;
(c) the following relating to the Employees namely all contracts of
employment, statements of terms and conditions of employment,
collective agreements, staff handbooks, personnel files, forms
P45 correctly completed and other employment records (if any);
the "JOINT LETTER OF INSTRUCTION": the joint mandate and standing order
instruction each in the agreed form in respect of the Escrow Account
from the Purchaser's Solicitors and the Vendor's Solicitors to the Bank
(which instructions shall be irrevocable save where further
instructions are
2
5
given to the Bank jointly by the Vendor's Solicitors and the Purchaser's
Solicitors) instructing the Bank to pay from the Escrow Account by way
of standing order 10,000 pounds sterling per week for 25 weeks to the
account nominated by the Purchaser as set out in Clause 3.2, the first
such payment to be made on 2nd July 1996;
"PERSON": any person, firm, company or other incorporated or
unincorporated body;
the "PROPERTY": the leasehold property more particularly described in
Schedule III and the land comprising thereof and any premises located
thereon;
the "PURCHASER'S SOLICITORS": Denton Hall of Five Chancery Lane,
Clifford's Inn, London EC4A 1BU;
"THE RAW MATERIALS": all the raw materials of the Vendor as at the
Completion Date relating to the Business;
"THE SCHEMES": all the Vendor's obligations to provide or increase or
amend any life assurance, retirement, retirement benefit on termination,
pension, death, benefit or payment, including any ex-gratia payments, to
any Employee, or any spouse or dependent of any thereof;
the "STOCK": all the finished stock of the Vendor as at the Completion
Date relating to the Business;
the "VENDOR'S SOLICITORS": Dibb Lupton Broomhead of 117 The Headrow,
Leeds LSI 5JX;
the "WARRANTIES": the warranties and representations set out in
Schedule IV;
the "WORK IN PROGRESS": all the partly finished goods and work in
progress (other than Stock and Raw Materials) of the Vendor as at the
Completion Date relating to the Business;
the "1988 ACT": the Income and Corporation Taxes Act 1988;
"IN WRITING": includes any communication made by letter of facsimile
transmission.
1.2 A document is in the "AGREED FORM" if it is in the form of a draft
agreed between the parties hereto on or before the date hereof.
3
6
1.3 For the purposes of this Agreement generally and of the Disclosure
Letter a matter shall be treated as being within the knowledge
information or belief of the Vendor if and only if such matter is within
the actual knowledge information or belief of any one or more of the
following persons namely J.P. Fishwick, P. Henry, G. Pearce and D.
Kenny.
1.4 Headings are for ease of reference only and shall not be taken into
account in construing this Agreement.
1.5 References in this Agreement to Clauses, sub-clauses, paragraphs and
Schedules are references to those contained in this Agreement.
1.6 The Schedules to this Agreement are an integral part of this Agreement
and reference to this Agreement includes reference thereto.
2. SALE AND PURCHASE
2.1 The Vendor shall sell assign and transfer with full title guarantee and
the Purchaser shall purchase for the consideration hereinafter set out
as at and with effect from the Completion Date and free from
Encumbrances all the following property and assets.
(a) the Property;
(b) the Assets;
(c) the Information;
(d) the benefit of the Claims.
2.2 The parties shall at Completion enter into the Escrow Agreement.
2.3 On Completion the Joint Letter of Instruction will be delivered to the
Bank.
2.4 Within 10 working days of the Completion Date the Vendor agrees to
remove at its own expense all Stock from the Property and the Purchaser
agrees to give the Vendor such access and assistance as the Vendor shall
reasonably require for this purpose.
2.5 After Completion the Vendor agrees to sell to the Purchaser at the
Vendor's direct cost of acquisition, such of the Raw Materials as the
Purchaser notifies the Vendor in writing that it wishes to acquire.
Payment in respect of Raw Materials so acquired will be made by the
Purchaser following receipt of an invoice from the Vendor, by the end
of the month following the month of invoice.
2.6 With regard to Work in Progress the Vendor shall have no obligation to
sell the same to the Purchaser but if it does not then it shall within
10 working days of the Completion Date remove the same at its own
expense from the Property and the Purchaser agrees to give the Vendor
such access and assistance as the Vendor shall reasonably require for
this purpose.
2.7 The Purchaser agrees not for a period of 18 months from the date of this
Agreement to operate a lamination machine at the Property.
4
7
3. CONSIDERATION
3.1 On Completion the Purchaser will pay the sum of Pounds Sterling 830,000
(Eight Hundred and Thirty Thousand Pounds Sterling) to the Vendor.
3.2 The Vendor shall at Completion deposit the sum of Pounds Sterling
250,000 (two hundred and fifty thousand pounds sterling) in cleared
funds into the Escrow Account, which sum shall be released from the
Escrow Account to the Purchaser's bank account with Bank of Scotland 124
Colmore Row, Birmingham B3 3AU (Account No. 00244520), or to such other
bank account as the Purchaser may hereafter notify to the Vendor in
accordance with the Joint Letter of Instruction. If the Purchaser does
so notify the Vendor of a different bank account then the Vendor shall
promptly instruct the Vendor's Solicitors to instruct the Bank
accordingly, failing which the Purchaser shall be entitled within 10
working days so to instruct the Vendor's Solicitors. The purpose of the
payments pursuant to this Clause shall be to help meet the Purchaser's
start-up costs to be incurred in respect of the transition of the
Business from the Vendor to the Purchaser.
3.3 All interest accruing to the Escrow Account shall be the property of the
Purchaser and the Joint Letter of Instruction shall provide for the
distribution thereof to the Purchaser by the Bank immediately following
the final payment made by the Bank pursuant to Clause 3.2.
3.4 All charges of the Bank relating to the Escrow Account shall be charged
to the Escrow Account and shall be paid by the Purchaser.
4. VALUE ADDED TAX
4.1 Subject to the provisions of this clause, the parties intend that the
provisions of Article 5 of the Value Added Tax (Special Provisions)
Order 1995 should apply to the sale hereunder and accordingly that the
sale hereby contemplated should be treated as neither a supply of goods
nor a supply of services for value added tax purposes.
4.2 The Vendor warrants that it is registered for value added tax as a
taxable person for the purposes of its supplies made in connection with
the Business. The Purchaser confirms that it is in the process of
becoming registered for VAT.
4.3 The consideration payable pursuant to Clause 3 is exclusive of any value
added tax properly payable in respect thereof. If H.M. Customs & Excise
shall determine in writing after full disclosure of all material facts
that value added tax is payable on the whole or any part of the
consideration any such value added tax shall be paid by the Purchaser
to the Vendor upon receipt of a valid value added tax invoice complying
with the provisions of Part III of the Value Added Tax (General)
Regulations 1995 and a copy of the determination by H.M. Customs &
Excise and the documents disclosing all material facts.
4.4 The Vendor shall following Completion deliver to the Purchaser all
the records which for value added tax purposes are required by
Section 49(I)(b) Value Added Tax Act 1994 to be preserved by the
Purchaser.
5
8
5. PROPERTY INDEMNITY AND APPORTIONMENTS
5.1 In relation to the Property the National Conditions of Sale (Twentieth
Edition) applicable to a sale by private treaty shall be incorporated
herein so far as the same are not inconsistent with the express terms
and conditions hereof and in the event of any conflict between the express
terms and conditions hereof and the National Conditions the former shall
prevail.
5.2 Apportionments in relation to the Property shall be dealt with in
accordance with National Condition 6.
5.3 The Vendor confirms that (a) none of the Assets comprise the Landlord's
property as defined and described in the "Factory Description" to the lease
dated 16th January 1981 referred to in Schedule III and that (b) the title
deeds to the Property have not been deposited with any third party by way
of security and that no third party has any lien over the title deeds. The
Vendor agrees to indemnify and keep indemnified the Purchaser from and
against all and any demands, claims, actions, liabilities, losses
(including loss of profit), costs, fines, judgments, penalties and expenses
whatsoever incurred or suffered by the Purchaser as a result of or arising
out of a breach of these representations.
5.4 If the title deeds referred to in Clause 5.3 are at any time after the date
of this Agreement found by the Vendor, the Vendor shall forthwith forward
them to the Purchaser's Solicitors.
6. COMPLETION
6.1 Completion shall take place at the offices of the Vendor's Solicitors in
Manchester on the Completion Date.
6.2 On Completion the Vendor shall deliver to the Purchaser:
(a) vacant possession of the Property together with all documents of title
thereto or copies thereof specified in Schedule III and evidence
satisfactory to the Purchaser of the Landlord's consent to the
assignment of the Property to the Purchaser;
(b) the following duly executed by the Vendor or the Vendor's Solicitors
respectively:
(i) this Agreement;
(ii) the Escrow Agreement;
(iii) the Joint Letter of Instruction;
(iv) an assignment of the Property;
(c) all property hereby agreed to be sold which is capable of transfer by
delivery (which delivery shall, unless otherwise agreed, take place at
the then current location of such property);
(d) the Information, other than forms P45 in relation to the Employees
which shall be delivered to the Purchaser as soon as practicable and
not later than 7 days after Completion;
(e) a release or certificate of non-crystallisation (as appropriate) in a
form acceptable to the Purchaser in respect of the fixed and floating
charge dated 9th February 1994 in favour of Midland Bank PLC over the
assets agreed to be sold hereunder;
6.
9
(f) confirmation to the satisfaction of the Purchaser of the payment to
the Escrow Account referred to at Clause 3.2.
6.3 The Purchaser shall on Completion:
(a) pay the consideration specified in Clause 3.1 by electronic funds
transfer to the Vendor's Solicitors (at National Westminster Bank
plc, 8 Park Row, Leeds branch, sort code 60-60-05, account number
86467654); and
(b) deliver to the Vendor the following duly executed by the Purchaser or
the Purchaser's Solicitors respectively:
(i) this Agreement;
(ii) the Escrow Agreement;
(iii) the Joint Letter of Instruction;
(iv) an assignment of the Property.
6.4 The sale and purchase of each of the assets hereby agreed to be sold are
interdependent and shall be completed simultaneously.
6.5 The risk and the property in the assets hereby agreed to be sold shall
pass to the Purchaser on Completion provided that no title or beneficial
interest in any such asset capable of passing by delivery and hereby
agreed to be sold shall pass to the Purchaser until actual delivery
thereof.
6.6 The Vendor shall (and shall procure that all other necessary parties
shall) in each case insofar as it is lawfully able to do so on and at all
times after Completion execute and do all such deeds, documents, acts and
things as the Purchaser shall reasonably require for assuring to and
vesting in the Purchaser or its nominees the full legal and beneficial
ownership of the assets hereby agreed to be sold.
7. WARRANTIES
7.1 The Vendor hereby represents and warrants to and with the Purchaser (and
its successors and assigns) in the terms of Schedule IV. The Warranties
shall be separate and independent of each other, shall continue in full
force and effect hereafter notwithstanding Completion and shall be and
shall be deemed to be made and given at the date hereof. The provisions of
Schedule V shall regulate the rights and obligations of the parties
hereunder with regard to the Warranties.
7.2 None of the provisions of this Agreement or any documents ancillary hereto
shall be or be deemed to be in any way qualified or discharged by reason of
any information given to or coming into the possession of the Purchaser or
its advisers (whether before or after Completion) except in so far as such
information and its relevance in the context of this Agreement are fairly
disclosed in the Disclosure Letter. The Purchaser confirms that as at the
date of this Agreement it is not aware of any circumstances entitling it to
bring a claim under the Warranties.
7.
10
7.3 All sums payable to the Purchaser under this Agreement shall be paid
without deduction, withholding, set off or counterclaim.
8. EMPLOYEES
8.1 The Vendor and Purchaser hereby acknowledge that the transfer hereby
contemplated is one to which the Transfer of Undertakings (Protection
of Employment) Regulations 1981 (the "Regulations") apply. The Vendor
and the Guarantor hereby confirm that all of the Employees are
employed by the Vendor.
8.2 All salaries and other emoluments including overtime pay, sick pay,
holiday pay, bonuses and commissions (together with all tax and
national insurance contributions in respect thereof) and the cost of
any other benefits (other than with regard to pension entitlements)
relating to the Employees accrued as at Completion shall be borne by
the Vendor in respect of all periods ending on or before (but not
including) the Completion Date and with effect from the Completion
Date shall be borne by the Purchaser. Payment of accrued holiday pay
is taken into account in the consideration set out in clause 3.1 and
there shall be no further apportionment in respect of accrued holiday
pay.
8.3 The Vendor shall indemnify and keep indemnified the Purchaser from and
against all costs (on a full indemnity basis), claims, expenses,
demands, awards, judgments and liabilities whatsoever:
(a) in connection with the Employees prior to the Completion Date
during the period ending on the Completion Date including
without limitation, any matter arising out of or in connection
with any of the Schemes or arising out of any matter which
occurred before the Completion Date for which the Vendor is or
would have been liable but for the transfer of liability
therefore to the Purchaser pursuant to the Regulations save to
the extent that any such liability arises out of or in
connection with the acceptance of a transfer payment in respect
of rights accrued under the Schemes (which do not transfer
pursuant to the Regulations) by a retirement benefits scheme in
which the Purchaser participates; and/or
(b) arising from any of the particulars of the Employees set out in
Schedule 1 or otherwise disclosed to the Purchaser being
inaccurate or incomplete; and/or
(c) in connection with any employees, consultants or former
employees or consultants of the Vendor or any Associate of the
Vendor other than the Employees.
8.4 The Vendor undertakes to authorise and hereby authorises each of the
Employees to disclose to the Purchaser after Completion all information
in his possession relating to the Business notwithstanding any term
of his employment with the Vendor (whether express or implied) which
would otherwise preclude him from so doing.
8.5 The Vendor confirms that it has complied with all its obligations
(whether statutory, contractual or otherwise) to inform or consult trade
union and/or any other representatives under the Regulations in
connection with the sale pursuant to this Agreement save where the
obligations of the Vendor are subject to the provision of information
from the Purchaser which has not been provided.
8.6 The Purchaser shall indemnify and keep indemnified the Vendor from and
against all costs (on a full indemnity basis), claims, expenses,
demands awards, judgments and other liabilities whatsoever arising in
connection with the employment of the Employees by the Purchaser during
the period
8.
11
beginning on the Completion Date other than any matter which is the
responsibility of the Vendor under the foregoing provisions of this
Clause 8
9. INDEMNITY
9.1 Each of the Vendor and the Purchaser hereby agree to indemnify and
keep indemnified the other from and against all and any demands, claims,
actions, liabilities, losses (including loss of profit), costs, fines,
judgments, penalties and expenses whatsoever incurred or suffered by the
other as a result of or arising out of any failure on the part of the
Vendor or the Purchaser (as the case may be) fully and promptly to
perform carry out and complete any of its obligations and liabilities
under this Agreement.
9.2 In contesting, settling and dealing with any such claim the indemnified
party shall from time to time give to the indemnifying party such
information as the indemnifying party shall reasonably require and
shall not without the prior consent in writing of the indemnifying
party (such consent not to be unreasonably withheld) make any admission
in relation thereto or settlement thereof.
10. GUARANTEE
10.1 In consideration of the Purchaser agreeing to enter into this Agreement
with the Vendor the Guarantor hereby irrevocably and unconditionally
guarantees as a continuing guarantee the due and punctual payment or
discharge of all sums which shall for the time being and from time to
time (and whether now or hereafter) be due, owing, incurred or
outstanding by or from the Vendor to the Purchaser pursuant to this
Agreement and the due performance by the Vendor of all of the Vendor's
obligations pursuant to this Agreement and the payment of all damages
for or in respect of breach of this Agreement.
10.2 All sums payable hereunder by the Guarantor shall be paid immediately on
demand by the Purchaser in full.
10.3 Without prejudice to the Purchaser's rights against the Vendor as
between the Purchaser and the Guarantor, the Guarantor shall be liable
hereunder as if it were the sole principal debtor and not merely a
surety, and its liability hereunder shall not be released, discharged
or diminished by:
(a) any legal limitation, lack of capacity or authorization or
defect in the actions of the Vendor in relation to, any
invalidity or unenforceability of, or any variation (whether
or not agreed by the Guarantor) of any of the terms of this
Agreement, the bankruptcy, liquidation, insolvency, or
dissolution of the Vendor or any change in any such person's
identity, constitution, status or control; or
(b) any forbearance, neglect or delay in seeking performance of the
obligations of the Vendor, any granting of time, indulgence or
other relief in relation to such performance, or any
composition with, discharge, waiver or release of the Vendor, or
(c) any other act, omission, fact or circumstance (whether or not
similar to or of the kind referred to in (a) or (b) above) which
might otherwise release, discharge or diminish the liability of
a guarantor.
9.
12
11. AVAILABILITY OF INFORMATION
The Vendor shall for a period of seven years following Completion on
reasonable notice during usual business hours make available for
inspection by the Purchaser or its representatives all the books of
account and records (including computer records) which relate directly
and exclusively to the assets sold and purchased hereunder and which
have not been delivered to the Purchaser and in respect of which the
Purchaser's request for access is reasonable, and shall for a period of
seven years from the date hereof preserve and maintain such books and
records.
12. COSTS
Each party hereto shall pay its own costs and expenses in relation to
the preparation and execution of this Agreement and all documents
ancillary hereto or thereto.
13. GENERAL
13.1 This Agreement shall be binding upon, and shall enure to the benefit
of, the Purchaser and its successors and assigns.
13.2 The Purchaser but not the Vendor or the Guarantor may assign or
transfer all or any of its rights or benefits hereunder.
13.3 No failure or delay by the Purchaser or the Vendor (as appropriate) in
exercising any right, power or privilege under this Agreement shall
operate as a waiver thereof nor shall any single or partial exercise by
the Purchaser or the Vendor (as appropriate) of any right, power or
privilege preclude any further exercise thereof or the exercise of any
other right, power or privilege.
13.4 The rights and remedies herein provided are cumulative and not
exclusive of any rights and remedies provided by law.
13.5 No provision of this Agreement may be amended, modified, waived,
discharged or terminated, otherwise than by the express written
agreement of the Vendor and the Purchaser nor may any breach of any
provision of this Agreement be waived or discharged except with the
express written consent of the Vendor and the Purchaser.
14. NOTICES
14.1 Any notice or other communication given or made under this Agreement
shall be in writing and may be delivered to the relevant party or sent
by first class (or airmail as the case may be) prepaid letter or
facsimile transmission to the address of that party specified in this
Agreement or to that party's facsimile transmission number thereat or
such other address or number as may be notified hereunder by that party
from time to time for this purpose and shall be effectual
notwithstanding any change of address not so notified.
10
13
14.2 In the case of the Purchaser notices shall also be copied to:
(a) EPL Technologies Inc.
200 Four Falls Corporate Center,
Suite 315,
West Conshohocken,
PA 19428,
USA
marked for the attention of the President Fax: 001-610-834-7584;
(b) the Purchaser's solicitors (marked for the attention of Rhea
Leibmann and Anne Johnson) Fax: 0171-404 0087.
14.3 Unless the contrary shall be proved, each such notice or communication
shall be deemed to have been given or made and delivered, if by letter,
48 hours after posting (4 days if airmail), if by delivery, when left at
the relevant address and if by facsimile transmission, when
transmitted.
15. LAW
This Agreement shall be governed by and construed in all respects in
accordance with English law and the parties hereby submit to the
non-exclusive jurisdiction of the English Courts as regards any claim or
matter arising in relation to this Agreement.
IN WITNESS whereof this Agreement has been duly executed the day and year first
above written
11
14
SCHEDULE 1 - THE EMPLOYEES
PRINTPACK EUROPE - GAINSBOROUGH
EMPLOYEE DETAILS
Notice
Entitlement
Name Position Service Service To Date of Age At Wage/Salary @ 31/5/96
Commenced 31/5/96 Birth 31/5/96 (weeks)
- ----------------------------------------------------------------------------------------------------------------------------
STAFF
- ----------------------------------------------------------------------------------------------------------------------------
D. Jones Office 2/12/91 4 yrs 5 mnths 17/4/69 27 yrs 1 mnths 10,389 pa
Administrator pounds sterling 4
- ----------------------------------------------------------------------------------------------------------------------------
J. Lundy QA Inspector 3/6/86 9 yrs 11 mnths 27/3/61 35 yrs 2 mnths 14,355 pa
pounds sterling 9
- ----------------------------------------------------------------------------------------------------------------------------
HOURLY PAID
- ----------------------------------------------------------------------------------------------------------------------------
G. Aitcheson Printer/Leading 27/6/83 12 yrs 11 mnths 8/1/44 52 yrs 4 mnths 420.68 pw
Hand - 3 set pounds sterling 12
- ----------------------------------------------------------------------------------------------------------------------------
D. Andrews Slitter - 3 set 23/1/84 12 yrs 4 mnths 3/2/62 34 yrs 3 mnths 338.12 pw
pounds sterling 12
- ----------------------------------------------------------------------------------------------------------------------------
D. Birkett Service 24/9/90 5 yrs 8 mnths 15/6/63 32 yrs 11 mnths 313.56 pw
Technician pounds sterling 5
- 3 set
- ----------------------------------------------------------------------------------------------------------------------------
S. Boswell Print Assistant 24/2/86 10 yrs 3 mnths 4/12/59 36 yrs 5 mnths 326.91.pw
- 3 set pounds sterling 10
- ----------------------------------------------------------------------------------------------------------------------------
R. Burnand Printer - 3 set 22/8/83 12 yrs 9 mnths 7/8/65 30 yrs 9 mnths 394.12 pw
pounds sterling 12
- ----------------------------------------------------------------------------------------------------------------------------
P. Curtis Print Assistant 24/8/87 8 yrs 9 mnths 30/9/64 31 yrs 8 mnths 326.91 pw
- 3 set pounds sterling 8
- ----------------------------------------------------------------------------------------------------------------------------
T. Dargan Slitter - 3 set 3/1/90 6 yrs 4 mnths 26/6/69 26 yrs 11 mnths 312.44 pw
pounds sterling 6
- ----------------------------------------------------------------------------------------------------------------------------
A. Gadsby Service 11/12/89 6 yrs 5 mnths 1/5/52 44 yrs 0 mnths 313.56 pw
Technician pounds sterling 6
- 3 set
- -----------------------------------------------------------------------------------------------------------------------------
M. Guilliat Engineer 3/8/87 8 yrs 9 mnths 10/11/60 35 yrs 6 mnths 338.35 pw
pounds sterling 8
- -----------------------------------------------------------------------------------------------------------------------------
A. Hayes Printer - 3 set 30/8/83 12 yrs 9 mnths 25/12/56 39 yrs 5 mnths 394.12 pw
pounds sterling 12
- -----------------------------------------------------------------------------------------------------------------------------
P. Hilton Printer/Leading 9/3/81 15 yrs 2 mnths 29/4/46 50 yrs 1 mnth 420.68 pw
Hand - 3 set pounds sterling 12
- -----------------------------------------------------------------------------------------------------------------------------
D. Horton Stereo Operator 16/6/86 9 yrs 11 mnths 5/3/69 27 yrs 2 mnths 347.47 pw
- 3 set pounds sterling 9
- -----------------------------------------------------------------------------------------------------------------------------
R. Hought Print Assistant 4/6/84 11 yrs 11 mnths 24/10/46 49 yrs 7 mnths 326.91 pw
- 3 set pounds sterling 11
- -----------------------------------------------------------------------------------------------------------------------------
M. Irving Stereo Operator 22/2/82 14 yrs 3 mnths 12/5/65 31 yrs 1 mnth 347.47 pw
- 3 set pounds sterling 12
- -----------------------------------------------------------------------------------------------------------------------------
15
Notice
Entitlement
Name Position Service Service To Date of Age At Wage/Salary at 5/31/96
Commenced 31/5/96 Birth 3/15/96 (weeks)
- ----------------------------------------------------------------------------------------------------------------------------------
R. Littlewood Slitter - 3 set 4/7/83 12 yrs 10 14/11/64 31 yrs 6 mnths 338.12 pw 12
mnths pounds sterling
C. Littlewood Slitter - 3 set 22/9/81 14 yrs 8 mnths 2/1/58 38 yrs 4 mnths 343.12 pw 12
pounds sterling
J. Marrone Slitter - 2 set 4/1/83 13 yrs 4 mnths 15/10/65 30 yrs 7 mnths 312.44 pw 12
pounds sterling
S. Olivant Slitter - 2 set 9/7/90 5 yrs 10 mnths 24/8/64 31 yrs 9 mnths 312.44 pw 5
pounds sterling
T. Phillips Printer - 3 set 23/3/81 15 yrs 2 mnths 18/7/54 41 yrs 10 mnths 401.81 pw 12
pounds sterling
A. Waugh Slitter - 2 set 28/11/83 12 yrs 6 mnths 22/8/62 33 yrs 9 mnths 312.44 pw 12
pounds sterling
B. Gleadell Printer/Leading 11/3/96 0 yrs 2 mnths 18/6/65 30 yrs 11 mnths 420.68 pw 2
Hand - 3 set pounds sterling
D. Morton Service 8/4/96 0 yrs 1 mnth 22/6/62 33 yrs 11 mnths 313.56 pw 2
Technician pounds sterling
- 3 set
G. Peace Operations 12/9/74 21 yrs 9 mnths 28002 pa --
Manager pounds sterling
16
SCHEDULE 2 -- THE ASSETS
GAINSBOROUGH ASSETS
Laboratory Equipment
Scales
Gretag Densitometer
Short Gloss Meter
Heat seal tension recorder
Davenport slip tester
Unicam gas chromatograph PC and Epson printer
Heat sealer
Wrapping Area
Woodchild core cutter
Jungheinrich electric hand truck
Ductwash Area
Gateway wash unit
Gateway solvent recovery plant and chiller
Warehouse
Pallet tacking
1 Reach FLT (on lease from Jungheinrich)
Ink Department
Solvent storage tank (20,000 ltrs) in bound with pumps
Offices
Desks, filing cabinets and two PC's
Buildings
Single storey and two storey office area of 19,000 sq ft equipped with fire
security system by Redcar ADT.
Specialised conversion by constructing administration and laboratory block and
flammable ink store to local fire officers specification.
Provision of all engineering services distribution and all lighting systems
together with localised ventilation.
13
17
GAINSBOROUGH ASSETS
GLFASS0296 Viscocels
GLFASS5019 Rossini Steeves (18)
Rossini Mandrels (11)
Plate cylinders (262)
GLFASS5031 Press Safety
GLFASS6037 Tutrel Modification
GLFASS5042 Lable Printer
Polymer Unit
GLFASS5044 Polymer Unit - new lamps
GLFASS5046 Stretch Wrapper
GLFASS5071 Compressor Atlas Copco
Compressor Ingersoll Rand
Densag Air Dryer
Cold Water Chiller
230/01 Factory Refurbishment
25/01 Improve Gainsborough - Special Overhead Clean
25/02 Improve Gainsborough - Cleaning, Painting, Building
repairs and improvement.
25/03 Improve Gainsborough - Compliance to
ADAS hygiene standards with regard to
flyscreens fast acting doors and waste
containment.
424/01 Computerised Scale
403/01 Register Splines
402/01 Doctor Blades
407/01 Reel Hoists
206/01 1 Mounter Proofer
1 Mounter Proofer model 309/435
207/01 Production Lines:
1 VK 6 Colour Flexo Press (1981)
1 Eidec DB60 Stiller (1981)
1 Eldex rewinder (1981)
Installation:
1 VK 660 6 Colour Flexo Press (1987)
1 Eidec D860 Stiller (1987)
Installation
13A
18
SCHEDULE III
LEASEHOLD PROPERTY
Unit L614.01 Heapham Road, Industrial Estate, Gainsborough, Lincolnshire
comprised in:
1. A lease made 16 January 1981 between the English Industrial Estates
Corporation (1) Pakcel Converters Limited (2) British Sidac Limited; and
2. A lease made 28 September 1988 between the English Industrial Estates
Corporation (1) Pakcel Limited (2) British Rayophane Limited (3)
14.
19
SCHEDULE IV
THE WARRANTIES
VALIDITY AND INTERPRETATION
1.1 The signature, execution and performance of this Agreement and all
documents ancillary hereto by the Vendor and the Guarantor have been
duly authorised and are within the corporate power of the Vendor and the
Guarantor.
1.2 The execution and performance of this Agreement by the Vendor and the
Guarantor are not prohibited or restricted by any law or any other
matter or thing and in particular but without prejudice to the
generality of the foregoing are not subject to the approval or consent
of any person, authority or body.
1.3 The Vendor has not been party to any transaction as a result of which
any of the assets hereby agreed to be sold are liable to be transferred
or re-transferred to a person other than the Purchaser nor has the
Vendor or the Guarantor suffered the appointment of any receiver,
administrative receiver, administrator or liquidator or any petition for
its winding up or dissolution or for the making of an administration
order and no circumstances exist which are likely to give rise to any
such appointment or petition.
THE INFORMATION
2.1 The Information is complete, up to date and fully, properly, accurately
and consistently made-up, kept and completed, provided that in relation
to those items referred to in paragraph (b) of the definition of
Information this Warranty shall be given in all material respects only.
2.2 All of the Information is recorded, stored, maintained or operated or
otherwise held by means which, and all means of access to and from
which, will be under the exclusive ownership and direct control of the
Purchaser on and from Completion.
3. ENVIRONMENTAL
3.1 The Vendor has not received notification of and is further not aware of
any breach of any Environmental Legislation in connection with the
operation of the Business.
3.2 Annexed to the Disclosure Letter are copies of all correspondence
between either of the Vendor and the Guarantor and West Lindsey District
Council in the year ending on the date of this Agreement relating to
compliance with Environmental Legislation in relation to the Business.
ASSETS
4.1 All the assets hereby agreed to be sold (other than the Property) are
in the sole legal and beneficial ownership of the Vendor free from any
Encumbrance, lease, finance lease, hire or hire purchase agreement,
agreement for payment on deferred terms, agreement for retention of
title or judgment and so far as the Vendor is aware there are no
arrangements in force or claimed entitling any person to any of the
foregoing.
4.2 With regard to all tangible assets hereby agreed to be sold, the Vendor
hereby confirms that since such assets were inspected by the Purchaser
on 25th June 1996, the Vendor has taken good and
15.
20
proper care of the same, has not intentionally done or omitted to do
anything as a result of which such assets might be in a worse state or
condition than they were at the date of such inspection and further
since that date the Business has been carried on by the Vendor in the
ordinary and proper course.
4.3 No consent or approval of any kind is required from any third party for
the assignment to the Purchaser of any of the assets hereby agreed to be
sold, other than Landlord's consent to the assignment of the Property.
4.4 The computer system employed by Vendor in the Business:
(a) has been properly used maintained and serviced in accordance
with the manufacturer's instructions;
(b) has not been, and the Vendor has no reason to believe will be
susceptible to breakdown, malfunction or failure and has at all
material times functioned in a manner which would be
satisfactory to a reasonably skilled person engaged in the same
type of business.
5. LAND
5.1 The Vendor is the sole legal and beneficial owner of the Property and
the Vendor has not received notice of any breach of any covenant,
restriction or provision affecting the same; none of the same has been
waived and the Vendor is not under any liability to any person in
respect of any past failure to so comply.
5.2 The Vendor occupies and uses the Property solely for the purpose of
conducting its business and has quiet enjoyment thereof and the
activities of the Vendor and every tenant and licensee of the Vendor
carried on at the Property and so far as the Vendor is aware the use to
which the Property is and has been put in relation to the Business do
not contravene Town and Country Planning or other legislation or any
requirement of any local or other relevant authority.
5.3 Without prejudice to the generality of the foregoing:
(a) the Property and every part thereof is free from any lease,
sub-lease, licence, easement or rent charge (save as may be
listed in the Disclosure Letter) and free from any covenant,
restriction, provision or planning or other consent or licence
of an unusual or onerous nature or adversely affecting the
value, use or enjoyment thereof and the Vendor is not aware of
any outstanding notices or orders, charges, rights or powers of
entry or possession or other circumstances affecting the
Property which might adversely affect such value use or
enjoyment;
(b) no advance payment or commutation of future rents or licence
fees has been accepted in respect of any lease, sub-lease,
tenancy, service occupancy or licence affecting the Property.
(c) in the case of any part of the Property which is leasehold all
rents have been reviewed at the times and in the manner
specified in the relevant lease, there are no rent reviews in
the course of being determined or otherwise outstanding or
unimplemented at the date hereof and save as may be contained in
the leases there are no rights for the Lessor to determine
16.
21
any such lease other than by way of forfeiture for non-payment of rent
or breach of covenant;
(d) so far as the Vendor is aware there are no outstanding orders or notices
(whether under the Landlord and Tenant Act 1954 or otherwise) overriding
interests (as defined in the Land Registration Act 1925) or land charges
affecting the Property and so far as the Vendor is aware there are no
proposals (including without limitation compulsory purchase road
widening, building or re-routing) or other circumstances which might
adversely affect the Property or any part thereof or the use or value
thereof or restrict access thereto;
(e) so far as the Vendor is aware no planning consent has been refused or
granted subject to unusual or onerous terms in respect of the Property
or any part thereof and there is no agreement with any planning
authority relating to the use or development of the Property or any part
thereof or the modification of any planning permission in respect
thereof;
(f) the Property has not been and is not affected by any nuisance,
pollution, noise, vibration or other factors adversely affecting the
Vendor's use or other rights in respect thereof;
(g) all rates, rents, service charges and other outgoings payable by or to
the Vendor have been paid in full for the period ending on the date
hereof;
(h) no claims against the Vendor are outstanding or so far as the Vendor is
aware likely to arise in relation to any obligation to contribute to
common services or other facilities enjoyed by the Property or to repay
any compensation received in respect of the Property;
(i) the Property is not affected by any surcharge imposed or liable to be
imposed under the Local Government Act 1974;
(j) the replies to written enquiries made by the Purchaser's solicitors
concerning the Property have been given after making due and diligent
enquiry and are true and accurate;
(k) the access road leading to the Property has been maintained in good
repair;
(l) there is in force a valid fire certificate for each building on the
Property and the Vendor has received no notice of any breach of any of
the conditions therein contained;
(m) so far as the Vendor is aware, no wood wool, high alumina cement,
asbestos, toxic or other dangerous or hazardous materials, wastes or
substances have been used or kept or stored or manufactured at the
Property or any part thereof and in this respect all requirements,
restrictions and regulations (whether statutory or otherwise) have been
complied with in full;
(n) no notice has been received by the Vendor that the Property may suffer
from defects in design, construction or fitting out which might
adversely affect the health of people working at or visiting such
Property;
(o) so far as the Vendor is aware, the condition of the Property and every
part thereof accords with all relevant statutory and other obligations
concerning the use of the same excluding any Environmental Legislation;
(p) the deed of grant dated 9th July 1987 made between the English
Industrial Estate Corporation and the Yorkshire Electricity Board does
not materially affect the use and enjoyment of the Property;
17.
22
6. GRANTS
Full particulars of all subsisting regional development, interest relief
and other grants made to the Vendor in relation to the Business in the 18
months ending on the date of this Agreement have been disclosed in writing
to the Purchaser in the Disclosure Letter. There are no circumstances
under which the reduction, reclaim or forfeiture of any subsisting grant in
respect of the Business might result in any cost or liability to the
Purchaser.
7. EMPLOYMENT ETC
7.1 Complete and accurate details of the terms of employment or engagement of
all the Employees (including, without limitation, details of their length
of service, relevant service with previous employers, their dates of birth,
job descriptions, remuneration, benefits and other perquisites, whether or
not legal entitlements) have been specified in the Disclosure Letter; the
Employees comprise all the employees engaged in the Business (as the same
has hitherto or is conducted in or at the Property); the Vendor is under no
obligation (whether legally enforceable or not) to increase any such
remuneration or alter any such other terms and no indications have been
given to any of the Employees or their representatives of the amount of the
next review of salaries/terms of employment.
7.2 No Employee, agent or consultant of the Vendor engaged or working at the
Property has ceased to be employed by or be under contract to the Vendor in
circumstances in which he or she could claim damages or compensation and no
Employee is to the best of the knowledge information and belief of the
Vendor contemplating leaving the Vendor or under threat of dismissal or
termination.
7.3 Complete and accurate particulars of the entitlements of each Employee
(whether legally enforceable or not) to receive any life assurance,
redundancy, termination, death, health or disability benefit or payment and
to participate in any share incentive, share option, profit sharing bonus
or other incentive scheme have been specified in the Disclosure Letter.
7.4 There is no recognition, wage bargaining, closed shop or other collective
or similar agreement, arrangement or understanding in force, proposed,
observed or taken account of in relation to the Business or any Employee or
any terms or conditions of employment with any trade union staff
association or other organisation representing the Employees; there is no
dispute (current or threatened) in relation to the Business with any trade
union or similar organisation or any sections of its workforce; and there
is not and there has not been during the immediately preceding period of 2
years any strike, lockout or other labour related dispute or industrial
action affecting the Business.
7.5 No Employee has given the Vendor any indication that he will leave his
employment as a result of the transactions contemplated by this Agreement.
7.6 All obligations of the Vendor in relation to PAYE National Insurance
contributions (both employers' and employees') and pension contributions
payable in respect of the employment of the Employees have been fully and
promptly complied with and are paid in full up to the date hereof.
7.7 There are no amounts owing to any of the Employees other than remuneration
accrued due or for reimbursement of reasonable expenses properly incurred
in the Business during the period of two months prior to the Completion
Date.
7.8 So far as the Vendor is aware, having made reasonable and relevant
enquiries to the best of its endeavours, no person other than an Employee
has a contract of employment or any contract for services with the Vendor
and is employed or working in the Business now or hitherto conducted at
18
23
the Property nor has the Vendor offered a contract of employment or
contract for services to any person, company or other business entity.
7.9 There are no persons, other than the Employees who previously worked in
the Business and who are on maternity leave, absent on grounds of
disability or other leave of absence and have or may have statutory or
contractual rights to return to work in the Business.
7.10 As at the Completion Date there are no outstanding industrial injury or
other claims by any Employee against the Vendor.
7.11 The Vendor has complied fully with all equal pay, equal entitlement, sex
discrimination and other discrimination legislation including Article
119 of the Treaty of Rome.
7.12 So far as the Vendor is aware, as at the Completion Date the Employees
have a working environment and working practices which are in compliance
with health and safety legislation.
7.13 In relation to the Business no external investigations are currently
taking place or have taken place in the 2 years before the date hereof
in respect of accidents, injuries, illness, disease or any other harm to
the health and safety of employees or contractors of the Vendor and the
Vendor is not aware of any facts or circumstances which may lead to any
such investigations.
7.14 So far as the Vendor is aware, none of the Employees has in the period
of 12 months ending on the date of this Agreement, had a bankruptcy
petition presented against him or has been disqualified from acting as a
director of a company for any period or has been convicted of or had
been charged with and not acquitted of any criminal offence (other than
traffic offences the subject of a fixed penalty fine).
8. PENSIONS
8.1 Complete and accurate particulars (including copies of all relevant
documents) of the Schemes have been specified in the Disclosure Letter.
8.2 The Schemes have exempt approved status under Chapter I of Part XIV of
the Income and Corporation Taxes Act 1988 and there is no ground on
which such approval could be withdrawn or could cease to apply.
8.3 In relation to the Employees, the Schemes have been operated in
accordance with all equal pay, equal entitlement, sex and other
discrimination legislation including Article 119 of the Treaty of Rome.
8.4 No claim has been made or threatened against the Vendor or the trustees
or administrators of any of the Schemes, or against any person whom the
Vendor is or may be liable to indemnity or compensate, by or in respect
of any of the Employees in connection with any of the Schemes (other
than routine claims for benefits) and the Vendor is not aware of any
circumstances which may give rise to any such claim.
8.5 No promise, assurance or undertaking has been given to any Employee as
to admission to any of the Schemes, augmentation, provision of benefit
or payment of contributions under any discretion or power under any of
the Schemes on terms which would not otherwise have applied had the
discretion or power not been exercised.
19.
24
SCHEDULE V
VENDOR PROTECTION IN RESPECT OF THE WARRANTIES
1. The provisions of this Schedule apply despite (and prevail over) any
other provision of this Agreement and are in addition to the Purchaser's
general legal obligations to mitigate any loss or damage it may suffer.
2. The Purchaser confirms that subject to paragraph 10 hereof:
2.1 in entering into this Agreement, it relies on no warranties,
representations, undertakings, indemnities or other information except
for any expressly set out in this Agreement;
2.2 it waives any rights it may have in respect of any information, advice
or assurance it may have received other than expressly set out in this
Agreement, and
2.3 it agrees that recission shall not be available as a remedy for any
breach of this Agreement and agrees not to claim that remedy.
3. The Purchaser shall not be entitled to make a claim under the Warranties
if and to the extent that the facts or information upon which it is
based are fairly disclosed in the Disclosure Letter.
4. The Purchaser shall not be entitled to make a claim under the Warranties
to the extent that it arises only as a result of the retrospective
change or interpretation of law.
5. The Purchaser shall have no right to recover in respect of any claim
under the Warranties unless and until the aggregate liability of the
Vendor (but for this paragraph) in respect of all claims under the
Warranties would exceed 25,000 pound sterling but if such aggregate
liability should exceed that sum the Vendor shall be liable for the full
amount of the claim (subject to paragraph 6 below) and not merely for
the excess over that sum.
6. The Purchaser shall have no right to recover in respect of any
individual claim under the Warranties in respect of which the liability
of the Vendor (but for this paragraph) would not exceed 5,000 pound
sterling and any such claim shall be discounted in calculating the
aggregate liability of the Vendor for the purposes of paragraph 5.
7. The maximum liability of the Vendor in respect of all claims under the
Warranties shall not exceed 600,000 pound sterling.
8. The Vendor shall not be liable in respect of any claim under the
Warranties unless particulars of that claim (with sufficient detail to
enable the Vendor to identify the basis of the claim and the Purchaser's
best estimate of the quantum of the claim and how this has been
quantified) are given in writing to the Vendor not later than 18 months
after the date of this Agreement.
9. If the Purchaser becomes entitled to be indemnified by or to recover
from any other person in respect of a matter which would give rise to a
claim under the Warranties the Purchaser shall procure that:
9.1 the Vendor is notified as soon as possible after the Purchaser becomes
aware of both the possible entitlement and the related claim under the
Warranties; and
9.2 before enforcing the claim under the Warranties against the Vendor, all
steps are taken at the Vendor's sole cost and expense which the Vendor
reasonably requests to enforce the indemnity or right of recovery.
20.
25
10. The provisions of this Schedule V shall not apply in respect of any
claim resulting from fraud or from the Vendor or any person on its
behalf making any statement, promise or forecast which that person knows
to be misleading, false or deceptive, or dishonestly concealing any
material fact.
SIGNED BY
/s/
- -------------------------------------
DULY AUTHORISED FOR AND ON BEHALF OF
PRINTPACK EUROPE (ST. HELENS) LIMITED
SIGNED BY
/s/
- -------------------------------------
DULY AUTHORISED FOR AND ON BEHALF OF
EPL FLEXIBLE PACKAGING LIMITED
SIGNED BY
/s/
- -------------------------------------
DULY AUTHORISED FOR AND ON BEHALF OF
PRINTPACK EUROPE LIMITED
21.