EXHIBIT 2.1
[LINKLATERS & ALLIANCE LOGO]
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Conformed Copy
Dated 15 January 2002
Biocompatibles International plc
and
Aspect Vision Holdings Limited
and
The Cooper Companies, Inc
INTERNATIONAL SHARE SALE
AGREEMENT
relating to the companies
comprising the eyecare business
of Biocompatibles International plc
Linklaters
One Silk Street
London EC2Y 2HQ
Telephone: (44-20) 7456 2000
Facsimile: (44-20) 7456 2222
Ref: SMT/AMXC
TABLE OF CONTENTS
Contents Page
1 Interpretation.................................................................................3
2 Agreement to Sell the Shares..................................................................11
3 Consideration.................................................................................11
4 Conditions....................................................................................12
5 Pre-Closing...................................................................................13
6 Closing and Post Closing......................................................................14
7 Extension of exercise period for Executive Scheme and Employee Scheme.........................18
8 Warranties....................................................................................18
9 Limitation of the Seller's Liability..........................................................21
10 Claims........................................................................................24
11 Indemnification...............................................................................25
12 Confidentiality...............................................................................31
13 Restrictions on Business Activities...........................................................32
14 Guarantee.....................................................................................34
15 Other Provisions..............................................................................35
* Schedule 1 Details of the Companies, Shares etc........................................................41
* Schedule 2 Companies and Subsidiaries Part 1 Particulars of the Companies..............................42
Part 2 Particulars of the Subsidiaries.................................................................44
* Schedule 3 Properties..................................................................................49
* Schedule 4 Intellectual Property and Information Technology............................................57
Part 1 Licences-In:....................................................................................57
Part 2 Licences-Out:...................................................................................59
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Part 3 Patent Rights:....................................................................................60
Part 3 Trade Marks (Registrations).......................................................................65
Part 3 Trade Marks (Applications)........................................................................74
Part 3 Registered Designs................................................................................75
Part 3 Domain Names......................................................................................76
Part 4 IT Contracts......................................................................................77
Schedule 5 Closing Obligations..........................................................................78
Schedule 6 Post Closing Adjustments (Clause 6)...........................................................81
Schedule 7 Warranties given under Clause 8...............................................................85
Schedule 8 Warranties given by the Purchaser under Clause 8.6...........................................107
* Schedule 9 Seller's Awareness - Clause 8.1.5............................................................108
* Schedule 10 Resignation of Directors/Officers...........................................................109
* Schedule 11 (Contracts).................................................................................110
Schedule 12 Promissory Notes and Security...............................................................113
* Schedules 1 through 4 and 9 through 11 of this agreement do not contain
information that is material to the investment decision and, therefore, have
not been included in this filing, pursuant to Item 601 of Regulation S-K.
Cooper will supplementally furnish the Securities and Exchange Commission
with a copy of any such schedules upon request.
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International Share Sale Agreement
This Agreement is made on 15 January 2002
between:
(1) Biocompatibles International plc a company incorporated in England and
Wales with registered number 2703724 and whose registered office is at
Chapman House, Farnham Business Park, Weydon Lane, Farnham, Surrey GU9
8QL (the "Seller");
(2) Aspect Vision Holdings Limited a company incorporated in England and
Wales with registered number 3448379 whose registered office is at Unit
2, South Point, Hamble, Southampton, Hampshire, SO41 4RF (the "UK
Purchaser");
(3) The Cooper Companies, Inc a corporation organised under the laws of the
State of Delaware, United States of America having a principal place of
business at 6140 Stoneridge Mall Road, Suite 590, Pleasanton, CA94588,
United States of America (the "US Purchaser").
Whereas:
(A) The Seller is the beneficial owner of, and has agreed to sell the UK
Shares to, the UK Purchaser and the US Shares and the Canadian Shares
to the US Purchaser (all such terms being defined below) and to assume
the obligations imposed on the Seller under this Agreement;
(B) The UK Purchaser has agreed to purchase the UK Shares and to assume the
obligations imposed on the UK Purchaser under this Agreement and the US
Purchaser has agreed to purchase the US Shares and to assume the
obligations imposed on the US Purchaser under this Agreement.
(C) The US Purchaser has agreed to guarantee the performance of the
obligations of the UK Purchaser on the terms herein contained.
It is agreed as follows:
1 Interpretation
In this Agreement, unless the context otherwise requires, the
provisions in this Clause 1 apply:
1.1 Definitions
"Absorption Costing Basis" means unit costs prepared on a full
absorption costing basis incorporating an element of allocated indirect
overhead, using a US Dollar/Sterling exchange rate of 1.5 and
calculated as the combined average of each of the average monthly unit
costs for the months of October, November and December 2001;
"Accounts" means the accounts of each of the Group Companies for the
seven month period from 1 June to the Accounts Date other than with
respect to BE Inc. and BE Canada, which will be for a twelve month
period ended on the Accounts Date;
"Accounts Date" means 31 December 2000;
"Adjustment Amount" means an amount of 'L'2 million;
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"Affiliate" means in relation to any body corporate (i) its parent
undertaking (within the meaning of Section 258 of the Companies Act
1985); or (ii) any subsidiary undertaking (within the meaning of that
section) of such body corporate or of its parent undertaking;
"agreed terms" means, in relation to a document, such document in the
terms agreed between the Seller and the Purchaser and signed for
identification by the Purchaser's Lawyers and the Seller's Lawyers with
such alterations as may be agreed in writing between the Seller and the
Purchaser from time to time;
"BE Inc" means Biocompatibles Eyecare, Inc., a wholly-owned subsidiary
of the Seller, details of which are set out in paragraph 2 of Part 1 of
Schedule 2;
"BE Canada" means Biocompatibles Canada Inc., a wholly-owned subsidiary
of the Seller, details of which are set out in paragraph 3 of Part 1 of
Schedule 2;
"Business Day" means a day which is not a Saturday, a Sunday or a
public holiday in the United Kingdom;
"Canadian Shares" means all the issued shares in the capital of BE
Canada, details of which are set out in Schedule 1;
"Closing" means the completion of the sale of the Shares pursuant to
Clauses 6.1, 6.2 and 6.3 of this Agreement;
"Closing Date" means the date on which Closing takes place;
"Closing Financial Borrowings" means Financial Borrowings as at the
close of business on the Closing Date;
"Closing Intra-Group Debt" means Intra Group Debt as at the close of
business on the Closing Date;
"Companies" means the companies being sold pursuant to this Agreement,
details of which are set out in Schedule 2, and "Company" means any one
of them;
"Confidentiality Agreement" means the confidentiality agreement dated
18 December 2001 between the Seller and the Purchaser pursuant to which
the Seller made available to the Purchaser certain confidential
information relating to the Group;
"Connected Person" means a person connected (within the meaning of
Section 839 TA) with the Seller or any of the directors of the Group;
"Copyright" means copyright, topography rights and database rights,
whether registered or unregistered (including any applications for
registration of any such thing) design rights and any similar or
analogous rights to any of the above, whether arising or granted under
the law of England or of any other jurisdiction in any part of the
world;
"Disclosure Letter" means the letter dated on the same date as this
Agreement from the Seller's Lawyers to the Purchaser's Lawyers
disclosing:
(i) information constituting exceptions to the Sellers' Warranties; and
(ii) details of other matters referred to in this Agreement;
"Encumbrance" means any claim, charge, mortgage, lien, option, equity,
power of sale, retention of title, right of pre-emption, right of first
refusal or other third party rights or security interest of any kind or
an agreement to create any of the foregoing;
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"Environmental Indemnity" means the indemnity in relation to
environmental matters in Clause 11.2 of this Agreement;
"Environment", "Environmental Law", "Environmental Permit" and
"Environmental Authority" have the meanings given to them in paragraph
9.1 of Schedule 7;
"Eyecare Business" means the business of researching, developing,
producing, marketing and selling (a) soft contact lenses for the
purpose of vision correction and cosmetic applications and (b)
solutions for soft contact lens care as conducted and carried on by the
Group Companies as at the date hereof;
"Finance Leases" means such finance leases relating to the Eyecare
Business as have either been disclosed to the Sellers or are finance
leases as determined in accordance with UK GAAP;
"Financial Borrowings" means, in relation to the Group Companies, the
aggregate amount of all loans, debentures, overdrafts, financial
facilities (including all present and future amounts payable under
Finance Leases (including lathe, data projection and laptop leases) and
hire purchase, conditional sale or instalment payment arrangements) and
any other accounts payable in the nature of financial borrowings but
excluding:
(a) the Intra-Group Debt; and
(b) trading balances arising in the ordinary course of trading;
"Group" means the Group Companies, taken as a whole;
"Group Companies" means the Companies and the Subsidiaries and "Group
Company" means any one of them;
"Group Company Manufacturing Facility" means any of the following
facilities of the Group Companies: Farnborough, UK; Madrid, Spain;
Adelaide, Australia, and; Norfolk, USA.
"Group IP" means all Registered IP and Unregistered IP;
"Hardware" means any and all computer, telecommunications and network
equipment and any aspect or asset of a business which relies in any
respect of the computer hardware or other information technology
(whether embedded or not);
"Hazardous Substances" has the meaning given to it in paragraph 9.1 of
Schedule 7;
"Hydron" means Hydron Limited, a wholly owned subsidiary of the Seller,
details of which are set out in paragraph 1 of Part 1 of Schedule 2;
"Information Technology" means computer systems, communication systems,
software and hardware which at Closing is used in the Eyecare Business.
"Intellectual Property" means Trade Marks, Patent Rights, Registered
Designs and Copyright;
"Intra-Group Debt" means, in relation to the Group Companies, the
aggregate of all amounts (other than trading balances incurred in the
ordinary course of business) payable (whether or not due or owing) from
any Group Company to a person in the Seller's Group (excluding the
Group Companies) less the aggregate of all amounts (other than trading
balances incurred in the ordinary course of business) payable (whether
or not due or owing) from any such person to any Group Company;
"IP Agreements" means written agreements or licences relating to the
Group IP;
"IP Materials" means all documents, records, tapes, discs, diskettes
and any other materials whatsoever containing Copyright works, Know-How
or Software;
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"IT Contracts" means written agreements or licences whereby the Group
Companies use or exploit any Information Technology owned by a third
party as specified in Schedule 4 Part 4;
"Know-how" means confidential industrial and commercial information and
techniques in any form including (without limitation) drawings,
formulae, test results, reports, project reports and testing
procedures, instruction and training manuals, tables of operating
conditions, market forecasts, lists and particulars of customers and
suppliers, all of which being related to the Eyecare Business;
"Licence Agreements" means the licences in the agreed terms between
Biocompatibles Limited and Cooper Vision International Holding Company,
LP and Biocompatibles Limited and Cooper Vision Technology Inc relating
to certain Intellectual Property as specified therein;
"Licences-In" means written agreements whereby the Group Companies use
or exploit any Intellectual Property belonging to a third party as
specified in Schedule 4 Part 1;
"Licences-Out" means written agreements whereby the Group Companies
have authorised or otherwise permitted any use whatsoever of any Group
IP, or granted to any third party any right or interest in respect of
any Group IP as specified in Schedule 4 Part 2;
"Licensed Patents" has the same meaning as the term "Licensed Patents"
in the Licence Agreements;
"Licensed Trade Marks" has the same meaning as the term "Trade Marks"
in the Licence Agreements;
"Losses" means all losses, liabilities, costs (including without
limitation legal costs and experts' and consultants' fees), charges,
expenses, actions, proceedings, claims and demands;
"Management Accounts" means the management accounts of the Companies
for the period since the Accounts Date to 30 November 2001, a copy of
which are attached to the Disclosure Letter at Appendix B;
"Marginal Costing Basis" means unit costs prepared on a marginal
costing basis incorporating direct costs only comprising material,
labour and direct overhead costs, using a US Dollar/Sterling exchange
rate of 1.5 and calculated as the combined average of each of the
average monthly unit costs for the months of October, November and
December 2001;
"Net Asset Statement" means a statement showing the Net Asset Value of
the Group Companies, on a consolidated basis, at Closing;
"Net Asset Value" means the aggregate of:
(i) cash at bank and in hand;
(ii) stocks;
(iii) work in progress;
(iv) debtors;
(v) other assets (other than fixed assets and other long term assets)
capable of being converted into cash within one year of the
Closing Date;
less
(vi) creditors;
(vii) other current liabilities which shall exclude any amounts
payable in the future under Finance Leases, amounts due under
hire purchase agreements, conditional sale or instalment payment
arrangements;
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provided that Financial Borrowings and Intra-Group Debt shall be
excluded for the purpose of items (iv), (v), (vi) and (vii);
"Non-PC Products" means products of the Eyecare Business other than
those products containing the PC polymer;
"Patent Rights" means patent applications or patents, including any
divisions, renewals, continuations, re-filings, confirmations-in-part,
substitutions, registrations, confirmations, additions, extensions or
reissues of any such thing and any similar or analogous rights to any
of the above, whether arising or granted under the law of England or
any other jurisdiction in any part of the world;
"PC Products" means products of the Eyecare Business containing the PC
polymer;
"Properties" means the properties set out in Schedule 3 and "Property"
means any one of them;
"Provisional Financial Borrowings" means 'L'7,725,000, being the
Seller's reasonable estimate of the likely level of Financial
Borrowings at Closing;
"Provisional Intra-Group Debt" means 'L'29,142,000, being the
Seller's reasonable estimate of the likely level of Intra-Group Debt at
Closing;
"Purchaser" means the UK Purchaser or the US Purchaser as the context
requires and, in the case of doubt, whichever of the UK Purchaser or
the US Purchaser the US Purchaser (at its sole discretion) shall
designate;
"Purchasers" means the UK Purchaser and the US Purchaser;
"Purchasers' Lawyers" means CMS Cameron McKenna of Mitre House, 160
Aldersgate Street, London EC1A 4DD;
"Registered Designs" means registered designs, applications for
registered designs and all rights or forms of protection of a similar
or analogous nature, whether arising or granted under the law of
England or of any other jurisdiction in any part of the world;
"Registered IP" means the Intellectual Property listed in Schedule 4
Part 3;
"Relevant Employees" means those employees of the Group Companies who
are immediately prior to Closing employed in the Group;
"Retained Employees" means those persons employed by a Group Company
which the Seller wishes to employ with the Seller's Group;
"Sales Figures" means the sales figures of the Companies for the period
since the Accounts Date to 30 November 2001, a copy of which is
attached to the Disclosure Letter at Appendix C;
"Seller's Group" means the Seller and its subsidiaries from time to
time (which shall include the Group Companies prior to Closing but
exclude them thereafter);
"Seller's Lawyers" means Linklaters & Alliance of One Silk Street,
London EC2Y 8HQ;
"Seller's Warranties" means the warranties given by the Seller pursuant
to Clause 8 and Schedule 7 and "Seller's Warranty" means any one of
them;
"Senior Employee" means any employee employed or engaged in relation to
the Group on an annual salary (on the basis of full-time employment) in
excess of 'L'50,000 or local equivalent;
"Shares" means the UK Shares, the US Shares and the Canadian Shares;
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"Software" means any and all computer programs in both source and
object code form, including all modules, routines and sub-routines such
programs and all source and other preparatory materials relating to
them, including user requirements, functional specifications and
programming specifications, ideas, principles, programming languages,
algorithms, flow charts, logic, logic diagrams, orthographic
representations, files structures, coding sheets, coding and any
manuals or other documentation relating to them and computer generated
works;
"Specified Employees" means
Paul Aris IT Manager
Aris Aristodimou Sales Representative
Clair Batty Customer Services Supervisor
Jason Burden Production
Stuart Cockerill Marketing Manager
Paul Davies Sales Manager
Lucy Edwards Secretary
David Franklin Production
Tony Fulford Quality Engineering Manager
Pedro Garcia Scientist
Haidee Goodwin Sales Representative
Brenda Hall Clinical Trials Manager
Tim Hills IT Technician
Steve Jones Research Director
Graham Lockie Sales Director
John Lyons Sales Representative
Emma Mayne Customer Service Representative
Jane Moore Customer Service Representative
Graham Mullis Managing Director
Fiona Poole Finance
Mike Read Quality Services Manager
Tarnia Ross IT Administrator
Louise Staniforth Customer Service Representative
John Steadman Production Manager
Nick Williams Finance Director
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Geoff Tomsett IT Director
Darren Hall Global Production Director
other than those persons who the Seller and the Purchaser agree will
remain in the employment of a company other than a Group Company such
agreement to be reached no later than 5 days before Closing;
"Subsidiaries" means the companies listed in Part 2 of Schedule 2;
"TA" means the Income and Corporation Taxes Act 1988;
"Taxation" or "Tax" means all forms of taxation whether direct or
indirect and whether levied by reference to income, profits, gains, net
wealth, asset values, turnover, added value or other reference (including
without limitation social security contributions and any other payroll
taxes), whenever and wherever imposed (whether imposed by way of a
withholding or deduction for or on account of tax or otherwise) and in
respect of any person and all penalties, charges, costs and interest
relating thereto (save to the extent such penalties or interest are
attributable to unreasonable delay by the Purchaser or any member of the
Purchaser's Group after Closing or to the failure of the Purchaser to
comply with its obligations under this Agreement or the Tax Indemnity);
"Tax Authority" means any taxing or other authority competent to impose
any liability in respect of Taxation or responsible for the
administration and/or collection of Taxation or enforcement of any law in
relation to Taxation;
"Tax Indemnity" means the deed of covenant against Taxation in the agreed
terms to be entered into at Closing;
"Trade Mark Assignment" means the assignment in the agreed terms between
Biocompatibles Limited and the Purchaser/Group Companies relating to
certain Trade Marks as specified therein;
"Trade Marks" means trade, logo or service mark applications or
registered trade marks, logo or service marks, registered protected
designations of origin, registered protected geographic origins,
re-filings, renewals or reissues of any of the above, unregistered trade
or service marks, domain names, get up and company names in each case
with any and all associated goodwill and all rights or forms of
protection of a similar or analogous nature, including rights which
protect goodwill, whether arising or granted under the law of England or
of any other jurisdiction in any part of the world;
"UK Pension Schemes" means the Biocompatibles Retirement Plan and the
Hydron Pension Scheme;
"UK Shares" means all the issued shares in the capital of Hydron, details
of which are set out in Schedule 1;
"Unit Costs" means unit costs for certain products of the Eyecare
Business, calculated on an Absorption Costing Basis or Marginal Costing
Basis;
"US Purchaser's Group" means the US Purchaser and its subsidiaries from
time to time;
"US Shares" means all the issued shares in the capital of BE Inc.,
details of which are set out in Schedule 1;
"Unregistered IP" means Intellectual Property (other than Patent Rights,
registered Trade Marks, applications for registered Trade Marks and
Registered Designs) owned or used by the Group Companies; and
"VAT" means within the European Union such Tax as may be levied in
accordance with (but subject to derogations from) the Directive
77/338/EEC and outside the European Union any Taxation levied by
reference to added value or sales.
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1.2 Singular, plural, gender
References to one gender include all genders and references to the
singular include the plural and vice versa.
1.3 References to persons and companies References to:
1.3.1 a person include any body corporate, partnership or
unincorporated association (whether or not having separate
legal personality); and
1.3.2 a company shall include any company, corporation or any body
corporate, wherever incorporated.
1.4 References to subsidiaries and holding companies
A company is a "subsidiary" of another company (its "holding company")
if that other company, directly or indirectly, through one or more
subsidiaries:
1.4.1 holds a majority of the voting rights in it;
1.4.2 is a member or shareholder of it and has the right to appoint
or remove a majority of its board of directors or equivalent
managing body;
1.4.3 is a member or shareholder of it and controls alone, pursuant
to an agreement with other shareholders or members, a majority
of the voting rights in it; or
1.4.4 has the right to exercise a dominant influence over it pursuant
to its constitutional documents or pursuant to a control
contract.
1.5 Schedules etc.
References to this Agreement shall include any Recitals and Schedules
to it and references to Clauses and Schedules are to Clauses of, and
Schedules to, this Agreement. References to paragraphs and Parts are to
paragraphs and Parts of the Schedules.
1.6 Information
References to books, records or other information mean books, records
or other information in any form including paper, electronically stored
data, magnetic media, film and microfilm.
1.7 Legal Terms
References to any English legal term shall, in respect of any
jurisdiction other than England, be construed as references to the term
or concept which most nearly corresponds to it in that jurisdiction.
1.8 Currency Conversion
Where any constituent of any amount is denominated in a currency other
than pounds, the amount of such constituent shall be calculated using
the exchange rate of such currency into pounds at 9.00am London time on
the Closing Date as shown on the Reuters Screen FX Bench.
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2 Agreement to Sell the Shares
2.1 Sale and Purchase of the Shares
2.1.1 On and subject to the terms of this Agreement the Seller agrees
to sell with full title guarantee
(a) the UK Shares to the UK Purchaser and
(b) the US Shares and the Canadian Shares to the US Purchaser
and the UK Purchaser and the US Purchaser respectively agree to
purchase the same.
2.1.2 The Shares shall be sold free from Encumbrances and together
with all rights and advantages attaching to them as at the date
of this Agreement (including, without limitation, the right to
receive all dividends or distributions declared, made or paid
on or after Closing).
2.1.3 The Seller shall procure that on or prior to Closing any and
all rights of pre-emption over the Shares are waived
irrevocably by the persons entitled thereto.
2.1.4 Without prejudice to Clause 6.4, the Purchaser shall not be
obliged to complete the purchase of any of the Shares unless
the purchase of all the Shares is completed simultaneously and
minority holdings in any Group Companies are transferred to
such persons as the Purchasers shall nominate.
3 Consideration
3.1 Amount
3.1.1 The aggregate consideration for the purchase of the Shares
under this Agreement shall be an amount equal to
'L'31,133,000 million (the "Consideration") subject to
adjustment in accordance with the provisions of this Clause 3.1
and Clause 6.
3.1.2 If the Closing Intra-Group Debt exceeds the Provisional
Intra-Group Debt, the Consideration shall be reduced by the
excess.
3.1.3 If the Closing Intra-Group Debt is less than the Provisional
Intra-Group Debt, the Consideration shall be increased by the
shortfall.
3.1.4 If the Closing Financial Borrowings exceed the Provisional
Financial Borrowings, the Consideration shall be reduced by the
excess.
3.1.5 If the Closing Financial Borrowings are less than the
Provisional Financial Borrowings, the Consideration shall be
increased by the shortfall.
3.1.6 The Consideration shall be allocated as set out in Schedule 1
and paid by the Purchasers to the Seller in accordance with
Clause 6. Any reduction or increase of the Consideration
pursuant to this Clause shall be deemed to adjust the
allocation set out in Schedule 1, to take account of the
changes in the amounts payable or receivable by each Group
Company at Closing compared with such amounts included when
estimating the Provisional Intra-Group Debt and Provisional
Financial Borrowings.
3.2 Reduction of Consideration
3.2.1 If any payment is made by the Seller to either of the
Purchasers in respect of any claim for any breach of this
Agreement or pursuant to an indemnity under any such agreement
or the Tax Indemnity, the payment shall be made by way of
adjustment of the consideration paid by the relevant Purchaser
for
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the particular Shares to which the payment and/or claim relates
under this Agreement and the consideration shall be deemed to
have been reduced by the amount of such payment.
3.2.2 If:
(i) the payment and/or claim relates to the shares in more
than one Group Company, it shall be allocated in a manner
which reflects the impact of the matter to which the
payment and/or claim relates, failing which it shall be
allocated rateably to the shares in the Group Companies
concerned by reference to the proportions in which the
consideration is allocated in accordance with Clause
3.1.1; or
(ii) the payment and/or claim relates to no particular shares
in any Group Company, it shall be allocated rateably to
all the Shares by reference to the proportions in which
the consideration is allocated in accordance with Clause
3.1.1,
and in each case the consideration shall be deemed to have been
reduced by the amount of such payment.
4 Conditions
4.1 Condition Precedent
The agreement to sell and purchase the Shares contained in Clause 2.1
is conditional upon the passing at a general meeting of the Seller of a
resolution to approve the sale of the Shares.
4.2 Responsibility for Satisfaction
4.2.1 The Seller shall use all reasonable endeavours to ensure the
satisfaction of the condition set out in Clause 4.1 as soon as
practically possible.
4.2.2 Without prejudice to Clause 4.2.1, the Seller undertakes to the
Purchasers to procure that:
(i) on or before 31 January 2002 it will send a circular to its
shareholders to convene the general meeting referred to in
Clause 4.1 on such a date being no later than 25 February
2002;
(ii) to the extent consistent with their fiduciary duties, the
directors of the Seller will unanimously recommend to the
Seller's shareholders to vote in favour of the resolution
referred to in Clause 4.1 and will vote any shares
beneficially held by them in the Seller in favour of such
resolution.
4.2.3 The Seller and the Purchasers will co-operate with each other in the
preparation of the circular referred to in Clause 4.2.2 or any other
circular issued by the Seller to its shareholders in relation to the
sale of the Shares and the Purchasers shall promptly provide such
information relating to it, the US Purchaser's Group and any of its or
their respective directors or employees as the Seller may reasonably
request.
4.3 Non-Satisfaction/Waiver
4.3.1 The Seller shall give notice to the Purchaser of the satisfaction
of the condition in Clause 4.1 by the end of the Business Day
following the passing of the resolution referred to in Clause
4.1.
4.3.2 If the condition in Clause 4.1 is not satisfied on or before 25
February 2002, this Agreement (other than Clauses 1, 12 and 15.2
to 15.16) shall lapse and no party shall have any claim against
any other under it, save for any claim arising from breach of any
obligations contained in Clause 4.2.
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5 Pre-Closing
5.1 The Seller's Obligations in Relation to the Conduct of Business
The Seller undertakes to use all reasonable endeavours to procure that
between the date of this Agreement and Closing each of the Group
Companies:
5.1.1 shall carry on its business as a going concern in the ordinary
course as carried on prior to the date of this Agreement, save in
so far as agreed in writing by the Purchasers (such approval not
to be unreasonably withheld or delayed);
5.1.2 shall maintain in force all existing insurance policies for the
benefit of the Group Companies;
5.1.3 without prejudice to the generality of Clauses 5.1.1 and 5.1.2,
shall not without the prior written consent of the Purchasers
(such consent not to be unreasonably withheld or delayed) or as
otherwise provided for by this agreement:
(i) acquire or agree to acquire any share, shares or other
interest in any company, partnership or other venture,
other than an investment of 5 per cent or less of the
total shares or interest in such company, partnership or
venture;
(ii) create, allot or issue any share capital of any Group
Company;
(iii) repay, redeem or repurchase any share capital of any Group
Company;
(iv) declare, make or pay any dividend or other distribution to
shareholders;
(v) incur any additional borrowings or indebtedness otherwise
than in the ordinary course of business or to other
members of the Seller's Group;
(vi) subject to Clauses 5.2.2 and 5.2.3 employ or dismiss or
vary the terms of employment of any officer or any other
person other than the Retained Employees;
(vii) enter into any consultancy arrangement with any third
party;
(viii) enter into or vary the terms of any distribution or
similar agreement;
(ix) implement or agree to implement any price changes to
products outside the ordinary course of business;
(x) enter into or vary the terms of any arrangement with any
customer or potential customer who currently purchases or
is likely to purchase products exceeding in value'L'25,000
p.a.; or
(xi) enter into any contract committing any Group Company to
any expenditure exceeding'L'50,000.
5.2 Other Seller's Obligations Prior to Closing
5.2.1 Without prejudice to the generality of Clause 5.1, prior to
Closing the Seller shall procure that the Group Companies shall:
(i) collaborate with the Purchasers in relation to all material
matters concerning the running of the Group and, in
particular, report on a regular basis to the Purchasers on
developments in connection herewith;
(ii) after satisfaction of the condition in Clause 4.1 permit
representatives of the Purchasers' to have access to senior
members of the management of the Group Companies and to
sites from
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which the Eyecare Business is carried on for the purpose of
enabling the Purchasers to prepare and finalise their
integration programme immediately upon Closing provided
that such access does not cause any material disruption to
the daily operation of the Eyecare Business by the Seller.
(iii) allow the Purchasers and their respective agents, upon
reasonable prior notice, reasonable access to the books and
records of or relating in whole or in part to the Group,
provided that the obligations of the Seller under this
Clause shall not extend to allowing access to information
which is reasonably regarded as confidential to the
activities of the Seller otherwise than in relation to the
Group Companies;
(iv) not later than 1 February 2002, make available to the
Purchasers the formal procedures on how inventories are
undertaken at each Group Company Manufacturing Facility and
such other locations where inventory of the Group Companies
is held and permit the Purchasers and their representatives
access to such facilities and such of the Seller's
accountants' working papers as are necessary for the
Purchasers to understand how inventories are taken and
permit an inventory to be undertaken at each facility at
Closing (and for such purpose shall on request allow
reasonable access to any premises of the Group Companies);
and
(v) use all reasonable endeavours to conclude a formal contract
dealing with Surfacine (SMP) Partnership EW Program on
terms substantially the same as those referred to in the
Disclosure Letter.
5.2.2 Prior to Closing the Seller shall and/or shall procure that the
Group Companies shall at the Seller's own cost procure that the
contracts of employment of the Specified Employees are
transferred to Hydron or another Group Company and that the
contracts of employment of the Retained Employees, if any, are
transferred to Biocompatibles Limited.
5.2.3 Prior to Closing the Seller may engage any person to fill a
vacancy created by the resignation of any person employed in the
Eyecare Business as at the date of this Agreement.
5.3 Transitional Services
Prior to Closing the Seller and the Purchaser shall seek to identify
those services currently provided by the Seller's Group to the Group
Companies (and vice versa) and which it is necessary or desirable to
maintain in operation following Closing. Such services shall be
provided following Closing for a limited period, on such terms as shall
be negotiated in good faith and agreed between the Seller and the
Purchasers, subject to the terms of a Transitional Services Agreement
to be entered into by the Seller (for itself and on behalf of the
Seller's Group) and the Purchasers and their respective subsidiary
companies.
6 Closing and Post Closing
6.1 Date and Place
Subject to Clause 4, Closing shall take place at 9 am at the London
offices of the Seller's Lawyers on 28 February 2002 or at such other
location, time or date as may be agreed between the Purchasers and the
Seller.
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6.2 Closing Events
On Closing, the parties shall comply with their respective obligations
specified in Schedule 5. The Seller may waive some or all of the
obligations of the Purchasers as set out in Schedule 5 and the
Purchasers may waive some or all of the obligations of the Seller as
set out in Schedule 5.
6.3 Issue of Promissory Note(s) on Closing
6.3.1 On Closing the US Purchaser will issue or procure the issue by
the UK Purchaser and/or Group Companies of a promissory note or
notes for a total of 'L'44,000,000 less the difference between
the aggregate amount paid pursuant to Clause 6.6 and the
Provisional Financial Borrowings in respect of:
(a) the Consideration for the Shares ('L'31,133,000); and
(b) the repayment by the Group Companies of any Intra-Group
Debt remaining outstanding following payments made pursuant
to Clause 6.5 below.
Such promissory note or notes shall be issued in such
denominations, by such issuers, to such recipients as may be
determined by the US Purchaser and the Seller no later than 5
Business Days prior to Closing.
6.3.2 Each of the promissory notes issued pursuant to Clause 6.3.1
shall be secured by a charge or pledge over the following assets
on normal commercial terms (to be negotiated in good faith
between the Seller and the US Purchaser between the date hereof
and Closing) in favour of the Seller and/or the relevant member
of the Seller's Group:
(a) all the issued share capital of Hydron and BE Inc.;
(b) the production facility of BE Inc. in Norfolk, Virginia,
USA;
(c) subject to the consent of the US Purchaser, the inventory
and receivables from time to time of BE Inc.
6.3.3 The terms of the promissory notes and the related security shall
be based on, and consistent with, the provisions of Schedule 12.
6.4 Breach of Closing Obligations
If any party fails to comply with any material obligation in Clauses
6.2 and 6.3 and Schedule 5, the Purchasers, in the case of
non-compliance by the Seller, or the Seller, in the case of
non-compliance by the Purchasers, shall be entitled (in addition to and
without prejudice to all other rights or remedies available, including
the right to claim damages) by written notice to the Seller or the
Purchasers (as the case may be), served on the Closing Date:
6.4.1 (if such non-compliance is incapable of remedy within 14 days) to
terminate this Agreement (other than Clauses 1, 12 and 15.2 to
15.16) without liability on its part or on the part of those on
whose behalf such notice is served;
6.4.2 to effect Closing so far as practicable having regard to the
defaults which have occurred; or
6.4.3 to fix a new date for Closing (not being later than 14 March
2002) in which case the provisions of Schedule 5 shall apply to
Closing as so deferred but provided such deferral may only occur
once.
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6.5 Repayment of Provisional Intra-Group Debt
On or immediately following Closing the Purchasers shall procure that
the Group Companies repay an amount of Intra-Group Debt to the relevant
members of the Seller's Group which is equal to 'L'24,000,000 less
the amount paid by Hydron and BE Inc pursuant to Clause 6.6 below.
6.6 Repayment of Financial Borrowings
Promptly after Closing the Purchasers shall procure that:
6.6.1 Hydron shall pay to The Royal Bank of Scotland plc ("RBS") all
outstanding amounts of principal and accrued interest down to the
date of repayment in accordance with the terms of the Agreement
dated 6 September 2000 between RBS, the Seller and Hydron; and
6.6.2 BE Inc. shall pay to Century Business Credit Corporation ("CBCC")
all outstanding amounts of principal and interest accrued down to
the date of repayment in accordance with the terms of the Loan
and Security Agreement dated 25 June 1999 between CBCC and BE
Inc.
6.7 Release of Seller's Guarantees
Promptly after Closing, the Purchasers shall use their reasonable
endeavours to obtain the release of the securities, guarantees and
indemnities given by or binding upon the Seller or any other member of
the Seller's Group (other than the Group Companies) in relation to any
debt or obligation of any Group Company. Pending such release the
Purchasers shall indemnify and keep indemnified the Seller or any
member of the Seller's Group and their respective successors and
assigns from and against all costs, claims and demands arising out of
or in connection with such securities, guarantees and indemnities, to
the extent that the terms of such securities, guarantees and
indemnities have been attached to the Disclosure Letter.
6.8 Release of Purchasers' Guarantees
Promptly after Closing, the Seller shall use its reasonable endeavours
to obtain the release of all securities, guarantees and indemnities
given by or binding on the Group Companies in relation to any debt or
obligation of any of the Seller's Group (other than the Group
Companies). Pending such release the Seller shall indemnify and keep
indemnified the Group Companies and their respective successors and
assigns from and against all costs, claims and demands arising out of
or in connection with such securities, guarantees and indemnities.
6.9 Agreement of Closing Intra-Group Indebtedness and Closing Financial
Borrowings
Not later than 30 days after Closing, the parties shall agree the
amount of the Closing Intra-Group Indebtedness and Closing Financial
Borrowings provided that for this purpose either party may request
either of such amounts to be confirmed by PricewaterhouseCoopers and,
upon such confirmation, such amounts shall be taken to be agreed
between the Seller and the Purchasers.
6.10 Adjustment of Intra-Group Debt
6.10.1 If the Closing Intra-Group Debt exceeds the Provisional
Intra-Group Debt, the Purchaser shall procure the relevant
Group Company or Companies to pay to the Seller (on behalf of
the Seller's Group) an amount equal to the excess and the
Seller shall repay to the Purchaser an equivalent amount by way
of reduction in the Consideration for the Shares; and
6.10.2 If the Closing Intra-Group Debt is less than the Provisional
Intra-Group Debt the Seller (on behalf of the Seller's Group)
shall repay to the relevant Group Company or Companies an
amount equal to the
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shortfall and the relevant Purchaser shall pay to the Seller an
equivalent amount by way of additional Consideration for the
Shares.
6.11 Adjustment of Closing Financial Borrowings
If the Closing Financial Borrowings exceed or are less than the
Provisional Financial Borrowings, the Consideration shall be adjusted
as provided in Clause 3 and:
6.11.1 the Seller shall (in the event of any excess) repay to the
relevant Purchaser an amount of the Consideration paid on
Closing equal to such excess; and
6.11.2 the relevant Purchaser shall (in the event of any shortfall)
pay to the Seller as additional Consideration an amount equal
to that shortfall.
All such amounts shall be settled in ('L') pounds, provided that
the obligations of the Seller and the Purchasers under this clause to
repay consideration or pay additional consideration, shall be satisfied
by the reduction or increase (as the case may be) of the amount of any
promissory note issued pursuant to Clause 6.3.
6.12 Wrong Pocket
Without affecting the other specific terms of this Agreement, and,
subject to Clause 6.13, if it becomes apparent after Closing that:
6.12.1 any assets (including, without limitation, contracts) or rights
of the Group (other than Intellectual Property) had prior to
Closing been used by or are required in the course of (or, in
the case of contracts, related to) the business of the Seller's
Group as at Closing (which for the avoidance of doubt excludes
the Eyecare Business); or
6.12.2 any assets (including, without limitation, contracts) or rights
of the Seller's Group (other than Intellectual Property) had
prior to Closing been used by or are required in the course of
(or, in the case of contracts, related to) the Eyecare Business
but are not part of the assets owned by the Group,
the parties will use their reasonable endeavours to agree a means and
reasonable commercial terms by which such use or benefit by the
Purchaser's Group or the Seller's Group, as the case may be, may
continue with respect to relevant assets or rights as long as
reasonably necessary and practicable or by which such assets or rights
may be transferred to or by the Seller's Group by or to the Group (as
appropriate).
6.13 Other
With regard to any assets, property or rights transferred pursuant to
Clause 6.12:
6.13.1 if transferred to the Purchasers' Group, such assets, property
or rights will be deemed to have been owned by the Group
Companies immediately prior to completion of this Agreement;
6.13.2 if transferred to the Seller's Group, such assets, property or
rights will be deemed to have been owned by the Group Companies
immediately prior to Completion of this Agreement.; and
6.13.3 the Seller shall indemnify the Purchasers against any Tax
suffered by any Group Company in respect of any income profits
or gains earned or received or deemed for Tax purposes to be
earned or received from the Seller's Group by the Group Company
in respect of such arrangements.
6.14 Contracts - Third Party Consents
The provisions of Schedule 11 shall apply.
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6.15 Net Asset Statement
6.15.1 The Purchasers shall procure that as soon as practicable
following Closing there shall be drawn up a draft of the Net
Asset Statement (the "Draft Net Asset Statement") in accordance
with Schedule 6.
6.15.2 The Draft Net Asset Statement as agreed or determined pursuant
to paragraph 3 of Schedule 6:
(i) shall constitute the Net Asset Statement for the purposes
of this Agreement; and
(ii) shall be final and binding on the parties.
6.15.3 If:
(i) the Net Assets attributable to the Group Companies are
less than 'L'15 million, the Seller shall repay to the
relevant Purchasers an amount equal to the deficit of Net
Assets below the 'L'15 million; or
(ii) the Net Assets attributable to the Group Companies exceed
'L'15 million, the relevant Purchasers shall pay to the
Seller an additional amount equal to the excess of Net
Assets over 'L'15 million provided that that amount does
not exceed the Adjustment Amount,
such payments to be made on or before 15 Business Days after
the date on which the process described in paragraph 3 of
Schedule 6 for the preparation of the Net Asset Statement is
complete.
6.16 After Closing, the Purchasers will, in consultation with the Seller
design a programme to refurbish all or some of the 23 off DAC 3 axis
lathes (the "DAC 3's") at a cost to the Seller of US$250,000. Upon
completion of such a programme, the Seller and the Purchasers will seek
to agree to the appointment of an independent expert (and, in default
of agreement within 14 days of the initial attempt to agree the
identity of such an expert either party may request the President of
the Institute of Mechanical Engineers to make such an appointment) who
shall carry out a manufacturing review to determine whether, in his
opinion, the DAC 3s on the basis of standard regular maintenance
provided by the Purchasers will in each of the following 3 years
produce satisfactory product at 80% of the previous years level of
output. If such an expert determines that the DAC 3s will not or will
likely not produce at such level, the Seller shall be obliged to pay
the Purchasers a further $100,000 towards the cost of a further
upgrade.
7 Extension of exercise period for Executive Scheme and Employee Scheme
The Seller agrees that it shall exercise its discretion, in accordance
with rule 8.1 of the Seller's 1995 Executive Share Option Scheme (the
"Executive Scheme") and rule 6(e) of the Employee Share Option Scheme
(the "Employee Scheme") to extend the period during which Relevant
Employees may exercise any UK Inland Revenue approved share options
held under the Executive Scheme and the Employee Scheme by the period
required to ensure that no charge to income tax arises on the exercise
of such options in accordance with Section 185(3) of the Income and
Corporation Taxes Act 1988.
8 Warranties
8.1 The Seller's Warranties
8.1.1 The Seller warrants to the Purchasers that the statements set out
in Schedule 7 are true and accurate as of the date of this
Agreement.
8.1.2 The only Seller's Warranties given:
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(i) in respect of the Properties are those contained in
paragraph 4.1 of Schedule 7 and each of the other Seller's
Warranties shall be deemed not to be given in respect of
the Properties;
(ii) in respect of Intellectual Property (including all
licences granted under or in relation to Intellectual
Property and all litigation, actual or potential claims,
legal actions, administrative proceedings, suits,
prosecutions, oppositions or other registry proceedings
relating to Intellectual Property) are those contained in
paragraphs 5.1 to 5.7 (inclusive) (headed "Intellectual
Property") of Schedule 7 and each of the other Seller's
Warranties shall be deemed not to be given in respect of
Intellectual Property;
(iii) in respect of Information Technology (including all
licences granted under or in relation to Information
Technology and all litigation, actual or potential claims,
legal actions, administrative proceedings, suits,
prosecutions, oppositions or other registry proceedings
relating to Information Technology) are those contained in
paragraphs 5.8 and 5.9 (headed "Information Technology")
of Schedule 7 and each of the other Seller's Warranties
shall be deemed not to be given in respect of Information
Technology;
(iv) in respect of employment (excluding worker's health and
safety and industrial injuries and occupational disease)
or pension matters are those contained in paragraph 7 of
Schedule 7 and each of the other Seller's Warranties shall
be deemed not to be given in respect of such matters;
(v) in respect of the Environment are those contained in
paragraph 9 of Schedule 7 and each of the other Seller's
Warranties shall be deemed not to be given in respect of
the Environment; and
(vi) in respect of competition/anti-trust are those contained
in paragraphs 16.1 to 16.4 of Schedule 7 and each of the
other Seller's Warranties shall be deemed not to be given
in respect of such matters.
8.1.3 The Seller acknowledges that the Purchasers have entered into
this Agreement in reliance upon the Seller's Warranties.
8.1.4 Each of the Seller's Warranties shall be separate and independent
and shall not be limited by reference to any other paragraph of
Schedule 7.
8.1.5 Any Seller's Warranty qualified by the expression "so far as the
Seller is aware" or any similar expression shall, unless
otherwise stated, be deemed to refer to the actual knowledge of
the persons whose names are set out in Schedule 9. In these
circumstances, one or more of the persons listed in Schedule 9
has made all reasonable enquiries of persons who would be
expected to know the circumstances the subject of any Warranty so
qualified and has caused such persons to make due and careful
enquiries as to the relevant matters.
8.1.6 The Seller undertakes to use its reasonable endeavours to procure
that if the Seller's Warranties were repeated each day up to
Closing they would remain true and accurate.
8.2 Seller's Disclosures
8.2.1 The Sellers' Warranties are subject to the following matters:
(i) any matter which is fairly disclosed in this Agreement or
the Disclosure Letter; and
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(ii) all matters which are fairly disclosed in the documents
sent to the Purchaser's Lawyers and listed in the
Disclosure Letter at Appendix A.
8.2.2 References in the Disclosure Letter to paragraph numbers shall be
to the paragraphs in Schedule 7 to which the disclosure is most
likely to relate. Such references are given for convenience only
and shall not limit the effect of any of the disclosures, all of
which are made against the Sellers' Warranties as a whole.
8.3 Notification
8.3.1 If after the signing of this Agreement:
(i) the Seller shall become aware that any of the Sellers'
Warranties was untrue or inaccurate in any material
respect as of the signing of this Agreement; or
(ii) any event shall occur or matter shall arise of which the
Seller becomes aware which results or may result in any of
the Sellers' Warranties being untrue or inaccurate in any
material respect up to Closing, had the Sellers'
Warranties been repeated up to Closing,
the Seller shall notify the US Purchaser in writing as soon as
practicable and in any event prior to Closing setting out such
details as are available and the Seller shall make any
investigation concerning the event or matter, at its own
reasonable cost, as the US Purchaser may reasonably require.
8.3.2 Any notification pursuant to Clause 8.3.1 shall not operate as a
disclosure pursuant to Clause 8.2 of this Agreement and the
Sellers' Warranties shall not be subject to such notification.
8.4 Termination/ Rescission
If the Purchaser becomes aware at any time (whether it does so by
reason of any disclosure made in the Disclosure Letter or not) that
8.4.1 there has been any breach of the warranties or any other term of
this Agreement; or
8.4.2 after the date hereof an event arises or circumstances exist
which would have constituted a breach of the Seller's warranties
had the same been repeated each day after the date hereof up to
Closing,
the Purchaser shall be entitled to terminate or rescind this Agreement
or treat this Agreement as terminated or rescinded PROVIDED ALWAYS that
(i) prior to the satisfaction of the condition in Clause 4.1,
such breach is of such a material nature that it severely
prejudices the Group's ability to supply significant
product lines with core powers after Closing; and
(ii) after satisfaction of the condition in Clause 4.1, such
breach would justify the Purchasers acting reasonably in
seeking to reduce their valuation of the Group Companies
(on a debt free basis) by 50 per cent.
8.5 Undertakings to pay
If any of the Seller's Warranties is breached or untrue or misleading,
the Seller undertakes to the Purchasers (without restricting the rights
of the Purchasers or any remedy they may have on any other basis
available to them) to pay to the relevant Purchaser the aggregate of:
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8.5.1 the amount by which the value of any asset of any Group Company
(excluding for this purpose any asset which is of immaterial
value (monetary or operational) to that Group Company, (including
any asset warranted to exist which does not exist) is or becomes
less than it would have been if the Seller's warranties had not
been breached or untrue or misleading;
8.5.2 an amount equal to any other loss or liability suffered or
incurred by the Purchasers, and/or any Group Company as a result
of any Seller's warranty being breached or untrue or misleading;
and
8.5.3 all costs, expenses and disbursements suffered or reasonably
incurred by the Purchasers and/or any Group Company as a result
of any warranty being breached or untrue or misleading.
8.6 The Purchasers' Warranties
Each of the Purchasers warrants to the Seller that the statements set
out in Schedule 8 in respect of each of them are true and accurate.
9 Limitation of the Seller's Liability
9.1 Time Limitation for Claims
Save as provided in Clauses 11.2, 11.3.1, 11.3.2 and 11.7 the Seller
shall not be liable under this Agreement in respect of any claim unless
a notice of the claim is given by the relevant Purchaser to the Seller
specifying the matters set out in Clause 10.2:
9.1.1 in the case of any warranty claim relating to Tax, within six
years after the end of the accounting period in which Closing
occurs
9.1.2 in the case of any other claim, not later than 30 June 2003.
9.2 Minimum Claims
The Seller shall not be liable under this Agreement or the Tax
Indemnity in respect of any individual claim (or a series of claims
arising from substantially identical facts or circumstances) where the
liability agreed or determined (disregarding the provisions of this
Clause 9.2) in respect of any such claim or series of claims does not
exceed 'L'10,000.
9.3 Aggregate Minimum Claims
9.3.1 Subject to Clause 9.3.3, the Seller shall not be liable under
this Agreement or the Tax Indemnity in respect of any claim
unless the aggregate amount of all claims for which the Seller
would otherwise be liable under this Agreement and the Tax
Indemnity (disregarding the provisions of this Clause 9.3)
exceeds 'L'750,000.
9.3.2 Where the amount agreed or determined in respect of all claims
referred to in Clause 9.3.1 exceeds 'L'750,000, the Purchasers
shall be entitled to claim the whole amount of the claims and not
merely the excess.
9.3.3 The provisions of clause 9.3.1 shall not apply to any claim
relating to indemnities set out at clause 11.3 or the
Environment.
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9.4 Maximum Liability
9.4.1 The aggregate liability of the Seller in respect of all claims
under this Agreement and the Tax Indemnity shall not exceed
'L'34,000,000.
9.4.2 The provisions of Clause 9.4.1 shall not apply to any matter
falling within the terms of Clause 11.4
9.5 Contingent Liabilities
The Seller shall not be liable under this Agreement in respect of any
liability which is contingent unless and until such contingent
liability becomes an actual liability and is due and payable, PROVIDED
ALWAYS that the time limitations set out in Clause 9.1, where relevant,
shall be extended to permit the relevant Purchaser to make such a claim
when the liability becomes actual and the Seller shall remain liable
notwithstanding the provisions of that clause.
9.6 Provisions
The Seller shall not be liable under this Agreement in respect of any
claim if and to the extent that proper allowance, provisions or reserve
is made in the Net Asset Statement for the matter giving rise to the
claim.
9.7 Matters Arising Subsequent to this Agreement
Provided that this clause shall not apply to the Environmental
Indemnity, the Seller shall not be liable under this Agreement in
respect of any matter, act, omission or circumstance (or any
combination thereof), including the aggravation of a matter or
circumstance and any Losses arising therefrom, to the extent that the
same would not have occurred but for:
9.7.1 Agreed matters
any matter or thing done or omitted to be done pursuant to and
in compliance with this Agreement or the Tax Indemnity or
otherwise at the request in writing or with the approval in
writing of either or both of the Purchasers;
9.7.2 Acts of Purchaser
any act, omission or transaction (a) outside of the ordinary
course of business of the Purchasers or any member of the US
Purchaser's Group or any of the Group Companies, or their
respective directors, officers, employees or agents or
successors in title, after Closing, or (b) in the ordinary
course of business of any such company where the Company
concerned knows, or should reasonably be aware, that any such
act, omission or transaction might give rise to a liability or
loss relevant for the purpose of this Clause 9.7;
9.7.3 Changes in legislation
(i) the passing of, or any change in, after the date of this
Agreement any law, rule, regulation or administrative
practice of any government, governmental department,
agency or regulatory body including (without prejudice to
the generality of the foregoing) any increase in the rates
of Taxation or any imposition of Taxation or any
withdrawal of relief from Taxation not actually (or
prospectively) in effect at the date of this Agreement; or
(ii) any change after the date of this Agreement of any
generally accepted interpretation or application of any
legislation;
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9.7.4 Accounting and Taxation Policies
any change in accounting or Taxation policy, bases or practice
of the Purchaser or any of the Group Companies introduced or
having effect after Closing.
9.8 Insurance
The Seller shall not be liable under this Agreement or the Tax
Indemnity in respect of any claim to the extent that the Losses
(including any Environmental Losses) in respect of which such claim is
made are covered by a policy of insurance in force at the date of this
Agreement or would have been covered if the policy was maintained after
Closing.
9.9 Net Financial Benefit
The Seller shall not be liable under this Agreement or the Tax
Indemnity in respect of any Losses (including any Environmental Losses)
suffered by the Purchaser or any of the Group Companies to the extent
of any corresponding savings by or net quantifiable financial benefit
to the Purchaser or any Group Company arising from such Losses (for
example, without limitation, where the amount (if any) by which any
Taxation for which the Purchaser or any Group Company would otherwise
have been accountable or liable to be assessed is actually reduced or
extinguished as a result of the matter giving rise to such liability).
9.10 Mitigation of Losses
The Purchasers shall procure that all reasonable steps are taken and
all reasonable assistance is given to avoid or mitigate any Losses
(including any Environmental Losses) which in the absence of mitigation
might give rise to a liability in respect of any claim under this
Agreement.
9.11 Purchasers' Right to Recover
9.11.1 Recovery for Actual Liabilities
The Seller shall not be liable under this Agreement unless and
until the liability in respect of which the claim is made has
become due and payable.
9.11.2 Prior to Recovery from the Seller etc.
If, before the Seller pays an amount in discharge of any claim
under this Agreement, the Purchaser or any Group Company
recovers or is entitled to recover (whether by payment,
discount, credit, relief, insurance or otherwise) from a third
party a sum which indemnifies or compensates the Purchasers or
Group Company (in whole or in part) in respect of the loss or
liability which is the subject matter of the claim, the
Purchasers shall procure that, before steps are taken to
enforce a claim against the Seller following notification under
Clause 10.2 of this Agreement or the Environmental Indemnity,
all reasonable steps are taken to enforce such recovery from
such third party and any actual recovery (less any reasonable
costs incurred in obtaining such recovery) shall reduce or
satisfy, as the case may be, such claim to the extent of such
recovery. The Seller shall be subrogated to all rights that the
relevant Purchaser has or would otherwise have in respect of
the claim against the third party.
9.11.3 Following Recovery from the Seller etc.
If the Seller has paid an amount in discharge of any claim
under this Agreement and the Purchasers or any Group Company
subsequently is entitled to recover (whether by payment,
discount, credit, relief,
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insurance or otherwise) from a third party a sum which
indemnifies or compensates the relevant Purchaser or Group
Company (in whole or in part) in respect of the loss or
liability which is the subject matter of the claim, the
relevant Purchaser shall pay, or procure that the Group Company
pays, to the Seller an amount equal to (i) the sum recovered
from the third party less any reasonable costs and expenses
incurred in obtaining such recovery; or (ii) if less, the
amount previously paid by the Seller to the relevant Purchaser.
9.12 Double Claims
The Purchasers shall not be entitled to recover from the Seller under
this Agreement or the Tax Indemnity more than once in respect of the
same Losses (including Environmental Losses) suffered and, without
prejudice to the generality of the foregoing, the Seller shall not be
liable in respect of:
9.12.1 any breach of the Agreement if and to the extent that the
Losses resulting from or connected with such breach are or have
been included in a claim under the Tax Indemnity which has been
satisfied; or
9.12.2 a claim under the Tax Indemnity if and to the extent that the
Losses in respect of which such claim was made are or have been
included in a claim for breach of this Agreement which has been
satisfied.
9.13 Fraud
None of the limitations contained in this Clause 9 shall apply to any
claim which arises or is increased, or to the extent to which it arises
or is increased, as the consequence of, or which is delayed as a result
of, fraud by the Seller, any Group Company or any of their respective
directors, officers, employees or agents.
10 Claims
10.1 Notification of Potential Claims
If either of the Purchasers becomes aware of any matter or circumstance
that it appreciates will give rise to a claim against the Seller under
this Agreement, the relevant Purchaser shall within 30 days give a
notice in writing to the Seller setting out such information as is
available to the relevant Purchaser as is reasonably necessary to
enable the Seller to assess the merits of the claim, to act to preserve
evidence and to make such provision as the Seller may consider
necessary provided that by so doing the best interests of the Eyecare
Business are not prejudiced thereby. Without prejudice to the
provisions of Clause 9.12 the Purchasers' failure to comply with the
provisions of this Clause 10.1 shall not be a pre-condition of the
Purchasers' ability to recover from the Seller under the terms of this
Agreement.
10.2 Notification of Claims under this Agreement
Notices of claims under this Agreement shall be given by the relevant
Purchaser to the Seller within the time limits specified in Clause
10.1, specifying in reasonable detail the legal and factual basis of
the claim and the evidence on which the party relies and, if
practicable, an estimate of the amount of Losses which are, or are to
be, the subject of the claim (including any Losses which are contingent
on the occurrence of any future event).
10.3 Commencement of Proceedings
Any claim notified pursuant to Clause 10.2 shall (if it has not been
previously satisfied, settled or withdrawn) be deemed to be withdrawn
twelve months after the notice is given pursuant to Clause 10.2 unless
legal proceedings in respect of it have been commenced by being both
validly issued and served.
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10.4 Procedure for Third Party Claims
If the claim notified pursuant to Clause 10.1 is a result of or in
connection with a claim by or liability to a third party then:
10.4.1 no admissions in relation to such third party claim shall be
made by or on behalf of the Purchasers or any other member of
the US Purchaser's Group and the claim shall not be
compromised, disposed of or settled without the prior written
consent of the Seller (which shall not be unreasonably withheld
or delayed);
10.4.2 the Seller shall be entitled at its own expense, by notice in
writing to the Purchasers, to take such action as it shall deem
necessary to avoid, dispute, deny, defend, resist, appeal,
compromise or contest such claim or liability (including,
without limitation, making counterclaims or other claims
against third parties) in the name of and on behalf of the
relevant Purchaser or other member of the US Purchaser's Group
concerned and to have the conduct of any related proceedings,
negotiations or appeals; and
10.4.3 where the Seller has issued a notice pursuant to Clause 10.4.2,
the Purchaser shall, and the Purchaser shall procure any other
members of the Purchaser's Group shall give, subject to their
being paid all reasonable costs and expenses, all such
information and assistance including access to premises and
personnel, and the right to examine and copy or photograph any
assets, accounts, documents and records, as the Seller may
reasonably request for the purpose referred to in Clause
10.4.2, including instructing such professional or legal
advisers as the Seller may nominate to act on behalf of the
Purchaser or other member of the Purchaser's Group concerned
but in accordance with the Seller's instructions. PROVIDED
ALWAYS that nothing herein contained shall permit the Seller to
take any action which in the reasonable opinion of the relevant
Purchaser shall materially prejudice the Eyecare Business or
any material part of it and, in particular but without
detracting from the generality of the foregoing, the right of
the Seller to have conduct described in Clause 10.4 shall be
circumscribed accordingly.
11 Indemnification
11.1 Regulatory/Product Liability
For the purposes of this Clause 11.1, Relevant Period shall mean the
period commencing 4 years before the Closing Date and ending on the
Closing Date.
11.1.1 The Seller shall indemnify, and hold harmless the US
Purchaser's Group and the Group Companies (the "Indemnified
Parties") from and against, any and all Losses (including, for
the avoidance of doubt, the reasonable cost of recall or
replacement of defective products or batches of products and
the rectification of any related design errors or manufacturing
systems) incurred by any Indemnified Party in respect of any
personal injury or breach of product regulatory requirements
alleged against any Indemnified Party by any third party
arising out of or in connection with any products manufactured,
supplied, sold or placed upon the market in the Relevant Period
by any of the Group Companies provided that the Seller shall
have no liability in respect of products manufactured but not
sold as at Closing where any defect is identified following
Closing as a result of failure occurring after Closing to
follow normal procedures for the maintenance, care, protection,
quality control or supply of the product.
11.1.2 Where the Seller is to indemnify the Indemnified Parties or any
one of them under this Agreement, the Seller and the
Indemnified Parties shall act in accordance with the provisions
of Clause 10.4 and in
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addition, in respect of any such action or claim conducted by
the Seller the Seller shall use all reasonable endeavours not
to bring the name of the Indemnified Party into disrepute.
11.1.3 The Indemnified Party shall be free to pay or settle any claim
on such terms as it thinks fit and without prejudice to its
rights and remedies under this Agreement if the Seller:
(i) fails to notify the Indemnified Party of its intention to
take conduct of such claim within 20 Business Days of
receipt of notice of such claim from the Indemnified Party
or notifies the Indemnified Party that it does not intend
to take over conduct of the claim; or
(ii) fails to comply in any material respect with the
provisions of Clause 11.1.2.
11.1.4 Any person taking any of the steps contemplated by Clause
11.1.2 shall comply with the requirements of any insurer who
may have an obligation to provide an indemnity in respect of
any liability referred to in this Clause 11.1.
11.2 Environmental
For the purposes of this clause:
"Environmental Losses" means all losses, liabilities, costs (including
without limitation legal fees and experts' and consultants' fees and
the costs of any remedial action) charges, expenses claims and demands;
"Environmental Proceedings" means any claims, proceedings, suits,
demands, actions, prosecutions, or investigations against the Purchaser
or any Group Company, or remedial action which any of them is required
to carry out, in each case under Environmental Laws;
"Group Company Manufacturing Facility" means the facilities at
Farnborough, UK; Madrid, Spain; Adelaide, Australia; and Norfolk, USA;
"Indemnity Period" means (i) in relation to the Group Company
Manufacturing Facilities at Farnborough, UK; Madrid, Spain; and
Adelaide, Australia; the period commencing on 9th March 2000 and ending
on the Closing Date and (ii) in relation to the Group Company
Manufacturing Facility at Norfolk, USA; the period commencing on 23rd
September 1994 and ending on the Closing Date;
In the event of any inconsistency between this environmental indemnity
clause and the rest of this Agreement, this provisions of this clause
shall prevail.
11.2.1 Subject to the provisions of this clause 11.2, the Seller
agrees to pay the Purchaser an amount equal to any and all
Environmental Losses incurred or suffered by the Purchaser or
any Group Company in connection with or arising out of any
Environmental Proceedings, whether administrative, civil or
criminal in nature, made or expressly threatened in writing by
any Environmental Authority or third party relating to:
(i) the use, storage, treatment or handling of any Hazardous
Substance in circumstances giving rise to harm or damage
to the Environment at any Group Company Manufacturing
Facility during the Indemnity Period; or
(ii) the disposal, discharge, emission, migration or release of
any Hazardous Substance at or from any Group Company
Manufacturing Facility into the Environment during the
Indemnity Period.
11.2.2 The Seller shall not be liable in respect of any claim under
the indemnity in Clause 11.2.1 above unless the Purchaser has
given written notice of such claim to the Seller on or before
the fifth anniversary of
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the Closing Date specifying in reasonable detail (having regard
to the information then available to the Purchaser) the nature
and amount of the claim.
11.2.3 The Seller shall not be liable in respect of any claim under
the indemnity in this Clause 11.2 to the extent that such claim
arises from or is increased as a result of:
(i) any negligent act or omission of the Purchaser or any
Group Company or their respective employees with regard
to the particular Hazardous Substance(s) which are the
subject of any Environmental Proceedings after the
Closing Date (provided that any failure to carry out
voluntary investigations or voluntary remedial action
shall not constitute a negligent act or omission) or the
introduction by the Purchaser or the Group Companies of
any new part of a pollutant linkage (source, receptor or
pathway) after the Closing Date;
(ii) any information given to any Environmental Authority or
third party by the Purchaser or any Group Company or any
of their respective employees after the Closing Date,
except (a) in response to a mandatory reporting
requirement under Environmental Laws or Health and Safety
Legislation or (b) a court order or (c) in response to an
unsolicited request by an Environmental Authority or (d)
where the Seller so proposes or consents in writing or
(e) the information is already in the public domain
through no fault of the Purchaser or any Group Company or
any of their respective employees;
(iii) any development, construction or demolition at any Group
Manufacturing Facility except for the purposes of the
continued operation of the Eyecare Business or any
material change of use to any Group Company Manufacturing
Facility after the Closing Date;
(iv) the passing of, or any change in, any Environmental Law
after the Closing Date to the extent that it increases
any Environmental Losses suffered or incurred by the
Purchaser;
(v) the undertaking or procuring of any intrusive
investigations at any Group Company Manufacturing
Facility after the Closing Date except where such
investigations are required under Environmental Laws or
Health and Safety Legislation or are carried out with the
prior consent of the Seller or are necessary to determine
liability in the context of any Environmental
Proceedings.
11.2.4 The maximum liability of the Seller for all claims in respect
of this environmental indemnity shall be limited in accordance
with Clause 9.4 of this Agreement.
11.2.5 Conduct of Environmental Proceedings
(i) The Purchasers shall notify the Seller as soon as
reasonably practicable of any actual or potential
Environmental Proceedings in relation to the subject
matter of this indemnity.
(ii) Unless the Purchasers agree otherwise, the Purchasers or
the relevant Group Company shall have conduct of the
Environmental Proceedings.
(iii) The Seller shall promptly provide such reports,
documents, correspondence and information in its
possession or control relevant to the Environmental
Proceedings as the Purchasers or the relevant Group
Company may reasonably require.
(iv) Without prejudice to sub-paragraph 11.2.5(i) above and
subject to clauses 11.2.6 and 11.2.7, the Purchasers shall
ensure or shall procure that the Group Companies shall
ensure that in the context of Environmental Proceedings:
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(a) the Seller is provided with a reasonable and, so far as
reasonably possible, timely opportunity to review and
approve any reports, documents, correspondence or
information to be prepared and provided to any
Environmental Authority or any third party relating to or
affecting any Environmental Proceedings and the Purchasers
shall pay reasonable regard to the Seller's views in
respect thereof;
(b) the Seller shall be given advance notice of and be
permitted to attend significant meetings with any
Environmental Authority;
(c) the Seller shall be provided promptly with copies of any
report, document or correspondence relating to or
affecting any Environmental Proceedings which is generated
by or which comes into the possession of Purchasers or the
Group Companies;
(d) the Seller shall be informed promptly of any material
information which comes to the knowledge of the Purchaser
or the Group Companies and relates to or affects any
Environmental Proceedings;
(e) if the Seller reasonably requests a site visit on
reasonable notice, the Purchasers or the Group Companies
shall use its/their reasonable endeavours to ensure that
all persons administering or involved in any Environmental
Proceedings shall attend and participate as the Seller
shall reasonably require;
(f) no settlement, admission or compromise in any
Environmental Proceedings shall be agreed, made or offered
without the prior consent in writing of the Seller,
provided that such consent is not to be unreasonably
withheld or delayed;
11.2.6 Any access rights granted by the Purchasers or the Group
Company to the Seller under the provisions of this Agreement to
the Properties are granted subject to the Seller or its
representatives first agreeing that while present at the
Property they will:
(i) comply at all times with any reasonable directions or
instructions of the Purchasers or the Group Companies;
(ii) comply with the Purchasers' and/or Group Companies'
relevant, health, safety and environment policy or
equivalent.
11.2.7 Any rights granted by the Purchasers or any Group Company to
the Seller (or by the Seller to the Purchasers or any Group
Company) under the provisions of this Agreement to review or be
provided with copies of reports, documents, correspondence or
information ("Information") shall not extend to:
(i) any such Information which is privileged as between the
Seller and the Purchasers or Group Companies by reason of
any actual or potential dispute between them; or
(ii) any commercially sensitive information unless it is
reasonably necessary in relation to Environmental
Proceedings or a claim by the Purchasers under this
Agreement and the Seller (or Purchasers as appropriate)
agrees to keep such information confidential.
11.3 Pensions
11.3.1
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(i) The Seller will indemnify, and keep indemnified, the UK
Purchaser in respect of Losses equal to an amount paid
by the UK Purchaser or any Group Company to the trustees
of the Hydron Pension Scheme in accordance with Section
75 Pensions Act 1995 (or any legislation replacing it).
In the event the trustees make more than one statutory
demand under Section 75, the UK Purchaser or any Group
Company concerned shall immediately notify the Seller in
writing of such additional demands before making any
payment. If so instructed by the Seller, the UK
Purchaser or Group Company shall not make any payment
towards such additional statutory demands. If this
results in a claim by the trustees seeking to compel
such a payment then, subject to Clause 10.4 (Procedure
for Third Party Claims) the UK Purchaser or the relevant
Group Company will resist the claim but shall not make
any admission, compromise, or settle the claim without
the Seller's written consent. The Seller shall reimburse
the UK Purchaser or Group Company for any amounts
reasonably incurred in defending such a claim by the
trustees. Clause 9.7.3 (Changes in legislation) shall
not apply to this Clause 11.3.1(i).
(ii) The Seller shall not be liable under this clause in
respect of any claim unless a notice specifying the
amount paid to the trustees and a copy of the actuary's
certificate is received before the third anniversary of
Closing.
(iii) The UK Purchaser shall use all reasonable endeavours to
procure that the trustees of the Hydron Pension Scheme
complete the wind-up in a timely fashion.
11.3.2 The Seller will indemnify the UK Purchaser against 75 per cent
of the overall administration costs (which will be limited to
costs reasonably and necessarily incurred by the UK Purchaser
or any Group Company for legal, actuarial and administrator
expenses) relating to the winding up of the Hydron Pension
Scheme. In this respect, the UK Purchaser will provide a
schedule of all such costs to the Seller on a quarterly basis
and payment shall be made within 30 days of receipt of this,
unless this amount is disputed, in which case payment shall be
made 30 days after the parties agree on the amount to be paid.
The obligation in this sub-clause shall not be subject to
Clause 9.2;
11.3.3 The Seller shall indemnify, and keep indemnified, the UK
Purchaser and/or the US Purchaser in respect of any Losses
reasonably incurred by either the US Purchaser or the UK
Purchaser or any Group Company in relation to pension or life
assurance benefits (or similar benefits) payable in respect of
service with the Group Company prior to Closing outside the
United Kingdom or in relation to any legal non-compliance of
any pension scheme (or similar scheme) outside the United
Kingdom prior to Closing.
11.3.4 The Seller shall indemnify, and keep indemnified, the UK
Purchaser in respect of any Losses reasonably incurred by the
UK Purchaser or any Group Company in connection with any legal
non-compliance of the UK Pension Schemes prior to Closing.
11.3.5 In the event that the UK Purchaser, the US Purchaser or any
Group Company obtains for the accounting period in which any
amounts paid under Clauses 11.3.1, 11.3.2, 11.3.3 or 11.3.4 are
paid or in any of the four succeeding accounting periods a
deduction for the amount paid which results in a reduction in
taxable profits for the purpose of Corporation Tax, then the UK
Purchaser or the US Purchaser shall pay to the Seller the
amount by which the amount paid reduces those taxable profits
multiplied by the marginal rate of tax applicable to the UK
Purchaser, the US Purchaser or the Group Company obtaining the
deduction for the accounting period in which the deduction is
obtained or the loss utilised.
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11.4 Liabilities
If and to the extent that there are:
11.4.1 current or contingent liabilities of the Group Companies at
Closing which are not provided for in the Net Asset Statement;
or
11.4.2 (without prejudice to the generality of Clause 11.4.1)
liabilities of the Group Companies under any contracts existing
at Closing the terms of which have not been fairly disclosed in
the Disclosure Letter
the Seller shall indemnify the Purchasers to the extent of such
unprovided liabilities (but in the case of any contingent liability,
only to the extent of the actual liability when the liability ceases to
be contingent) or, in relation to contracts which have not been so
disclosed, the cost of complying with or terminating the same.
This provision shall not however apply to liabilities in respect of the
acquisition by or provision to the Companies or any of them following
Closing of any asset, service or other benefit which, having regard to
the Purchasers' plans for the integration of the Eyecare Business into
its existing business, will provide an asset, service or other benefit
to the Purchasers' Group commensurate with the amount of the liability
incurred by the relevant Group Company to obtain such asset service or
other benefit.
11.5 Slow Moving Stock
On the anniversary of Closing, the Purchasers shall prepare and submit
to the Seller an analysis of the extent to which in the preceding 12
months provisions (including write-offs) made in the Net Asset
Statement for slow moving stock (disregarding for this purpose Proclear
Compatibles and Proclear Compatibles Toric and any corresponding
provision) have proved to be excessive/inadequate on a parameter by
parameter basis and to the extent that such an analysis demonstrates
that there was an excess the Purchasers shall promptly repay an equal
sum to the Seller by way of additional consideration for the Shares and
to the extent that such an analysis demonstrates that there was an
inadequacy the Seller shall promptly repay an equal sum to the
Purchasers by way of a reduction in the consideration. The Purchasers
shall promptly provide to the Seller all such information to the Seller
as the latter may reasonably request to verify the analysis and the
Seller shall not be liable to make any payment to the Purchasers until
such analysis has been verified to its satisfaction by its auditors. If
the analysis cannot be so verified within 28 days of its submission to
the Seller, the Seller may refer the analysis to an independent firm of
accountants appointed jointly by the Seller and the Purchasers and
whose decision in this matter shall (in the absence of manifest error)
be final and binding.
11.6 Italian Lease
The Seller shall indemnify the UK Purchaser on behalf of the relevant
Group Company against any liability and/or costs arising from the
termination of the property lease entered into in January 2002 by
Hydron SRL.
11.7 Litigation
The Seller shall indemnify the Purchasers and the Group Companies
against any costs reasonably incurred by them and/or any liability
arising in respect of the litigation referred to in paragraph 5.2.4 of
the Disclosure Letter and the Purchasers and the Group Companies shall
use their reasonable endeavours to assist the Seller to minimise its
liability under this indemnity.
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12 Confidentiality
12.1 Announcements
Pending Closing, no announcement or circular in connection with the
existence or the subject matter of this Agreement shall be made or
issued by or on behalf of any member of Seller's Group or the US
Purchaser's Group without the prior written approval of the Seller and
the US Purchaser. This shall not affect any announcement or circular
required by law or any regulatory body or the rules of any recognised
stock exchange on which the shares of either party are listed but the
party with an obligation to make an announcement or issue a circular
shall consult with the other party before complying with such an
obligation and shall seek to accommodate the views expressed by such
other party where it is reasonable and practicable to do so.
12.2 Confidentiality
12.2.1
(i) Subject to Clause 12.1 and Clause 12.2.2, each of the
parties shall treat as strictly confidential and not
disclose or use any information received or obtained as
a result of entering into this Agreement (or any
agreement entered into pursuant to this Agreement) which
relates to:
(a) the provisions of this Agreement and any agreement
entered into pursuant to this Agreement;
(b) the negotiations relating to this Agreement (and any
such other agreements);
(ii) The Seller shall treat as strictly confidential and not
disclose or use any information relating to the Group
Companies following Closing and any other information
relating to the business, financial or other affairs
(including future plans and targets) of the US
Purchaser's Group.
(iii) The Purchasers shall treat as strictly confidential and
not disclose or use any information relating to the
business, financial or other affairs (including future
plans and targets) of the Seller's Group including,
prior to Closing, the Group Companies.
12.2.2 Clause 12.2.1 shall not prohibit disclosure or use of any
information if and to the extent:
(i) the disclosure or use is required by law, any regulatory
body or any recognised stock exchange on which the
shares of any party are listed;
(ii) the disclosure or use is required to vest the full
benefit of this Agreement in any party;
(iii) the disclosure or use is required for the purpose of any
judicial proceedings arising out of this Agreement or
any other agreement entered into under or pursuant to
this Agreement or the disclosure is made to a Tax
Authority in connection with the Tax affairs of the
disclosing party;
(iv) the disclosure is made to professional advisers of any
party on terms that such professional advisers undertake
to comply with the provisions of Clause 12.2.1 in
respect of such information as if they were a party to
this Agreement;
(v) the information becomes publicly available (other than
by breach of the Confidentiality Agreement or of this
Agreement);
(vi) the other party has given prior written approval to the
disclosure or use; or
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(vii) the information is independently developed after
Closing,
provided that prior to disclosure or use of any information
pursuant to Clause 12.2.2(i), (ii) or (iii), the party
concerned shall promptly notify the other parties of such
requirement with a view to providing the other parties with the
opportunity to contest such disclosure or use or otherwise to
agree the timing and content of such disclosure or use.
13 Restrictions on Business Activities
13.1 Restrictions on Seller
As further consideration for the Purchasers purchasing the Shares and
with the intent of assuring to the Purchasers the full benefit and
value of the goodwill, know-how and connections of the Group and as a
constituent part of the sale of the Shares the Seller undertakes to
procure that each member of the Seller's Group will not, either alone
or in conjunction with or on behalf of any other person, do any of the
following things:
13.1.1 neither pending nor within three years after Closing, be
engaged or (except as the holder of shares in a listed company
which confer not more than five per cent. of the votes which
could normally be cast at a general meeting of the company)
directly or indirectly interested in carrying on any business
which competes with the Eyecare Business as carried on at
Closing;
13.1.2 neither pending nor within one year after Closing, solicit the
custom, in relation to goods or services sold to any person by
any Group Company in the course of its Eyecare Business during
the two years before the Closing, of that person in respect of
similar goods or services;
13.1.3 neither pending nor within one year after Closing, solicit or
entice away from the employment of any Group Company any person
who is a Senior Employee of any Group Company at Closing.
13.2 Separate Undertakings
Each undertaking contained in this Clause 13 shall be construed as a
separate undertaking and if one or more of the undertakings is held to
be against the public interest or unlawful or in any way an
unreasonable restraint of trade, the remaining undertakings shall
continue to bind the Seller. Nothing in Clause 13.1 shall prevent the
Seller from employing any person who responds to a general solicitation
for applicants for employment (not aimed at employees of the Group
Companies) or any employee who has been dismissed by any Group Company
prior to accepting an offer of employment from the Seller.
13.3 Change of Name etc.
Subject to the trade mark licences granted by Biocompatibles Limited
under the Licence Agreements and to sub-clause 13.3.3:
13.3.1 Immediately after Closing the Purchasers:
(i) shall cause the name of each relevant Group Company to
be changed to some name not incorporating the word
"Biocompatibles" or any words resembling the same; and
(ii) shall forthwith hand to the Seller duly certified copies
of the special resolutions or other documents effecting
the same;
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13.3.2 With effect from the date falling 180 days after Closing the
Purchasers shall not, and shall procure that no member of the
Purchasers' Group shall thereafter adopt, use or carry on
business under any name incorporating the words
"Biocompatibles" or "BCP" or any words resembling the same
provided always that nothing shall prevent any Group Company at
any time after Closing selling products constituting stocks of
the products at Closing notwithstanding the fact that the
relevant packaging containing such products uses such words and
the Purchasers shall use reasonable endeavours to use up such
stocks as quickly as practicably possible.
13.3.3 Subject to sub-clause 13.3.4, the Group Companies shall be
permitted following Closing:
(i) to sell off existing packaged stock or stock packaged
under (ii) or (iii) below for so long as such products
are within their shelf-life;
(ii) to use packaging which has already been printed prior to
Closing for the purpose of packaging stock for a period
of six months following Closing;
(iii) to have printed additional packaging which is the same
as packaging which has been printed prior to Closing
provided that the Group Companies may only have printed
such additional packaging for a period of six months
following Closing.
13.3.4 Subject to Clauses 13.3.5, 13.3.6 and 13.3.7, the Purchasers
shall indemnify the Seller, the Seller's subsidiaries, the
Seller's officers and employees and officers and employees of
the Seller's subsidiaries (the "Indemnified Parties", for the
purpose of Clauses 13.3.4, 13.3.5, 13.3.6 and 13.3.7) against
all loss, damage or liability (including legal costs on an
indemnity basis) on an after-tax basis which any of them may
suffer or incur as a result of or in connection with any claim
which may be brought against them by any third party or any
financial penalty or fine imposed:
(i) as a consequence of any of the following not being in
accordance with good industry practice and to standards
and procedures consistent with those used and applied by
the Group Companies prior to Closing;
(a) the storage, handling and other dealing with
packaged stock in existence as at Closing; or
(b) the storage, handling and other dealing with stock
in existence as at Closing which is subsequently
packaged in packaging printed prior to Closing;
(ii) in relation to products manufactured after Closing and
sold or otherwise disposed of by any of the Group
Companies using either packaging printed prior to
Closing or additional packaging which is the same as
such packaging.
13.3.5 No admissions in relation to a third party claim shall be made
by or on behalf of the Indemnified Parties and the claim shall
not be compromised, disposed of or settled without the prior
written consent of the Purchasers.
13.3.6 The Purchaser shall be entitled at its own expense and in its
absolute discretion, by notice in writing to the Indemnified
Parties, to take such action as it shall deem necessary to
avoid, dispute, deny, defend, resist, appeal, compromise or
contest such claim or liability (including, without limitation,
making counterclaims or other claims against third parties) in
the name of and on behalf of the Indemnified Parties concerned
and to have the conduct of any related proceedings,
negotiations or appeals.
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13.3.7 Where one of the Purchasers has issued a notice pursuant to
Clause 13.3.6, the Seller shall and the Seller shall procure
that the relevant Indemnified Parties shall give, subject to
their being paid all reasonable costs and expenses, all such
information and assistance including access to premises and
personnel, and the right to examine and copy or photograph any
assets, accounts, documents and records, as the Purchaser may
reasonably request for the purpose referred to in Clause
13.3.6, including instructing such professional or legal
advisers as the relevant Purchasers may nominate to act on
behalf of the Indemnified Parties concerned but in accordance
with the Purchasers' instructions.
13.3.8 As soon as reasonably practicable after Closing, the Group
Companies shall cease all use of the biocompatibles-hydron.fr
domain name and shall take down any existing website which is
accessed by such domain name.
13.4 Termination of sub-licences under Seller's patent licence
On Closing, any sub-licences of any nature whatever (whether in writing
or otherwise) as may have been granted to any of the Group Companies by
the Seller under the Seller's patent licence from Geoffrey Galley,
Anthony Galley, Albert Morland, Barrie Bevis and Ivor Atkinson (the
"Patent Owners") under the patent licence agreement between the Patent
Owners and Hydron dated 6 July 1995 (such licence having been
subsequently assigned by Hydron to the Seller) shall terminate and any
and all obligations which would otherwise arise on termination in
relation to any such sub-licences shall terminate.
14 Guarantee
14.1 In consideration of the Seller entering into this Agreement, the US
Purchaser hereby unconditionally and irrevocably guarantees to the
Seller the due and punctual performance and observance by the UK
Purchaser of all of its obligations, commitments and undertakings under
or pursuant to this Agreement and the Tax Indemnity. The liability of
the US Purchaser under this Clause shall not be released or diminished
by any variation of the terms of this Agreement or the Tax Indemnity
(whether or not agreed by the US Purchaser), any forbearance, neglect
or delay in seeking performance of the obligations hereby imposed or
any granting of time for such performance.
14.2 If and whenever the UK Purchaser defaults for any reason whatsoever in
the performance of any obligation, commitment or undertaking undertaken
or expressed to be undertaken under or pursuant to this agreement or
the Tax Indemnity, the US Purchaser shall upon demand within ten
Business Days unconditionally perform (or procure performance of) and
satisfy (or procure satisfaction of) the obligation, commitment or
undertaking in regard to which such default has been made in the manner
prescribed by this Agreement or the Tax Indemnity and so that the same
benefits shall be conferred on the Seller as would have been received
if such obligation, commitment or undertaking had been duly performed
and satisfied by the UK Purchaser. The US Purchaser waives any right
which it may have to require the Seller to proceed first against or
claim payment from the UK Purchaser to the intent that as between the
Seller and the US Purchaser the latter shall be liable as principal
debtor as if it had entered into all undertakings, agreements and other
obligations jointly and severally with the UK Purchaser.
14.3 This guarantee is to be a continuing guarantee and accordingly is to
remain in force until all the obligations of the UK Purchaser referred
to in this Agreement or the Tax Indemnity shall have been performed or
satisfied, and shall not be satisfied, discharged or affected by any
intermediate payment or settlement of account, regardless of the
legality, validity or enforceability of any provisions of this
Agreement or the Tax Indemnity and notwithstanding the entry into any
voluntary or involuntary insolvency procedure, dissolution or other
analogous
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proceeding relating to, or other incapacity of, the UK Purchaser or any
change in the status, control, constitution or ownership of the UK
Purchaser or by any other matter or thing whatsoever. The guarantee is
in addition to and without prejudice to or limiting nor in substitution
for any rights or security which the Seller may now or hereafter have
or hold for the performance and observance of the obligations,
commitments and undertakings of the UK Purchaser under or in connection
with this Agreement and the Tax Indemnity.
14.4 As a separate and independent stipulation, the US Purchaser agrees that
any obligation, commitment or undertaking expressed to be undertaken by
the UK Purchaser under this Agreement or the Tax Indemnity (including,
without limitation, any monies expressed to be payable under this
Agreement or the Tax Indemnity) which may not be enforceable against or
recoverable from the UK Purchaser by reason of any legal limitation,
disability or incapacity on or of the UK Purchaser or any fact or
circumstance (other than any limitation imposed by this Agreement or
the Tax Indemnity or by law) shall nevertheless be enforceable against
and recoverable from the US Purchaser as though the same had been
incurred by the US Purchaser and the US Purchaser were the sole and
principal obligor in respect thereof and shall be performed or paid by
the US Purchaser on demand.
15 Other Provisions
15.1 Further Assurances
15.1.1 Each of the parties shall from time to time execute such
documents and perform such acts and things as any party may
reasonably require to transfer the US Shares and the Canadian
Shares to the US Purchaser and the UK Shares to the UK
Purchaser and to give any party the full benefit of this
Agreement.
15.1.2 The Purchasers shall retain for a period of 6 years from
Closing all books, records and other information relating to
the Group Companies which are delivered to the Purchasers
pursuant to Schedule 5 or in the possession of the Group
Companies as at Closing. Upon reasonable notice being given by
the Seller to the relevant Purchaser, the relevant Purchaser
shall make available such books, records and other information
for inspection and copying by the Seller.
15.2 Whole Agreement
15.2.1 This Agreement contains the whole agreement between the parties
relating to the subject matter of this Agreement at the date
hereof to the exclusion of any terms implied by law which may
be excluded by contract and supersedes any previous written or
oral agreement between the parties in relation to the matters
dealt with in this Agreement.
15.2.2 The Purchasers acknowledge that they have not been induced to
enter this Agreement by any representation, warranty or
undertaking not expressly incorporated into it.
15.2.3 Without prejudice to the provisions of Clause 8.4 and so far as
is permitted by law and except in the case of fraud, each of
the parties agrees and acknowledges that its only right and
remedy in relation to any representation, warranty or
undertaking made or given in connection with this Agreement
shall be for breach of the terms of this Agreement to the
exclusion of all other rights and remedies (including those in
tort or arising under statute).
15.2.4 In Clauses 15.2.1 to 15.2.3, "this Agreement" includes the
Disclosure Letter, the Tax Indemnity and all documents entered
into pursuant to this Agreement.
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15.3 Reasonableness
Each of the parties confirms it has received independent legal advice
relating to all the matters provided for in this Agreement including
the terms of Clause 15.2 (Whole Agreement) and agrees that the
provisions of this Agreement (including the Disclosure Letter, the
Confidentiality Agreement and all documents entered into pursuant to
this Agreement) are fair and reasonable.
15.4 No Assignment
15.4.1 Except as otherwise expressly provided in this Agreement, no
party may without the prior written consent of the other
parties, assign, grant any security interest over, hold on
trust or otherwise transfer the benefit of the whole or any
part of this Agreement.
15.4.2 Except as otherwise expressly provided in this Agreement, a
party may, without the consent of the other parties, assign to
a subsidiary the benefit of the whole or any part of this
Agreement provided however that such assignment shall not be
absolute but shall be expressed to have effect only for so long
as the assignee remains a subsidiary of the party concerned.
15.5 Third Party Rights
A person, other than a Group Company (whilst such Group Company remains
in the US Purchasers' Group), who is not a party to this Agreement has
no right under the Contracts (Rights of Third Parties) Act 1999 or
otherwise to enforce any term of, or enjoy any benefit under, this
Agreement.
15.6 Variation
No variation of this Agreement shall be effective unless in writing and
signed by or on behalf of each of the parties.
15.7 Time of the Essence
Time shall be of the essence of this Agreement both as regards any
dates, times and periods mentioned and as regards any dates, times and
periods which may be substituted for them in accordance with this
Agreement or by agreement in writing between the Seller and the
Purchasers.
15.8 Method of Payment
15.8.1 Wherever in this Agreement provision is made for a payment by
one party to another, any such payments shall be effected by
crediting for same day value the account specified in writing
by the payee to the payer (reasonably in advance and in
sufficient detail to enable payment by telegraphic or other
electronic means to be effected) on or before the due date for
payment.
15.8.2 Payment of a sum in accordance with this Clause shall be a good
discharge to the payer (and those on whose behalf such payment
is made) of its obligation to make such payment and the payer
(and those on whose behalf such payment is made) shall not be
obliged to see to the application of the payment as between
those on whose behalf the payment is received.
15.9 Costs
15.9.1 The Seller shall bear all costs incurred by it in connection
with the preparation, negotiation and entry into of this
Agreement, the Tax Indemnity and the sale of the Shares.
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15.9.2 The Purchasers shall bear all costs incurred by them in
connection with the preparation, negotiation and entry into of
this Agreement, the Tax Indemnity and the sale of the Shares.
15.10 Interest
If any party defaults in the payment when due of any sum payable under
this Agreement or the Tax Indemnity (howsoever determined) the
liability of that party shall be increased to include interest on such
sum from the date when such payment is due until the date of actual
payment (as well after as before judgment) at a rate per annum of 4 per
cent above the base rate from time to time of the Royal Bank of
Scotland plc. Such interest shall accrue from day to day and shall be
compounded with monthly rests.
15.11 VAT
15.11.1 Where under the terms of this Agreement one party is liable to
indemnify or reimburse another party in respect of any costs,
charges or expenses, the payment shall include an amount equal
to any VAT thereon not otherwise recoverable by the other
party, subject to that party using all reasonable endeavours to
recover such amount of VAT as may be practicable.
15.11.2 If any payment under this Agreement constitutes the
consideration for a taxable supply for VAT purposes, then in
addition to that payment the payer shall pay any VAT due.
15.12 Notices
15.12.1 Any notice in connection with this Agreement (a "Notice") shall
be:
(i) in writing in English;
(ii) delivered by hand, fax, registered post or by courier
using an internationally recognised courier company.
15.12.2 A Notice to the Seller shall be sent to such party at the
following address, or such other address as the Seller may
notify to the Purchaser from time to time:
Biocompatibles International plc
Chapman House
Farnham Business Park
Weydon Lane
Farnham
Surrey GU9 8QL
Fax: 01252 732 777
Attention: Crispin Simon/Company Secretary
15.12.3 A Notice to the Purchasers shall be sent to them at the
following addresses, or such other address as the Purchasers
may notify to the Seller from time to time:
The Cooper Companies, Inc.
Carol R. Kaufman
Vice President of Legal Affairs & Secretary
6140 Stoneridge Mall Rd., Suite 590
Pleasanton, CA 94588
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Fax: 925-460-3662
Aspect Vision Holdings Limited
Unit 2, South Point
Hamble
Southampton
Hampshire SO41 4RF
Fax: 02380 605 299
Attention: Company Secretary
15.12.4 A Notice shall be effective upon receipt and shall be deemed to
have been received:
(i) at the time of delivery, if delivered by hand, registered
post or courier;
(ii) at the time of transmission in legible form, if delivered
by fax.
15.13 Invalidity
If any provision in this Agreement shall be held to be illegal, invalid
or unenforceable, in whole or in part, under any enactment or rule of
law, such provision or part shall to that extent be deemed not to form
part of this Agreement but the legality, validity or enforceability of
the remainder of this Agreement shall not be affected.
15.14 Counterparts
This Agreement may be entered into in any number of counterparts, all
of which taken together shall constitute one and the same instrument.
Any party may enter into this Agreement by executing any such
counterpart.
15.15 Governing Law and Submission to Jurisdiction
15.15.1 This Agreement and the documents to be entered into pursuant to
it, save as expressly referred to therein, shall be governed by
and construed in accordance with English law.
15.15.2 Each of the parties irrevocably agrees that the courts of
England are to have exclusive jurisdiction to settle any
dispute which may arise out of or in connection with this
Agreement and the documents to be entered into pursuant to it
and that accordingly any proceedings arising out of or in
connection with this Agreement and the documents to be entered
into pursuant to it shall be brought in such courts. Each of
the parties irrevocably submits to the jurisdiction of such
courts and waives any objection to proceedings in any such
court on the ground of venue or on the ground that proceedings
have been brought in an inconvenient forum.
15.16 Appointment of Process Agent
15.16.1 The US Purchaser hereby irrevocably appoints the Company
Secretary of the UK Purchaser as its agent to accept service of
process in England and Wales in any legal action or proceedings
arising out of this Agreement, service upon whom shall be
deemed completed whether or not forwarded to or received by the
US Purchaser.
15.16.2 If such process agent ceases to be able to act as such or to
have an address in England, the US Purchaser irrevocably agrees
to appoint a new process agent in England acceptable to the
Seller and to deliver to the Seller within 14 days a copy of a
written acceptance of appointment by the process agent.
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15.16.3 Nothing in this Agreement shall affect the right to serve
process in any other manner permitted by law or the right to
bring proceedings in any other jurisdiction for the purposes of
the enforcement or execution of any judgment or other
settlement in any other courts.
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In witness whereof this Agreement has been duly executed.
SIGNED by CRISPIN SIMON
on behalf of Biocompatibles International plc: CRISPIN SIMON
SIGNED by GREGORY A. FRYLING
on behalf of Aspect Vision Holdings Limited: GREGORY A. FRYLING
SIGNED by CAROL R. KAUFMAN
on behalf of The Cooper Companies, Inc: CAROL R. KAUFMAN
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Schedule 1
Details of the Companies, Shares etc
(1) (2) (3)
Name of
Company Shares Consideration
Hydron Limited 2,392,347 Ordinary Shares
274,320 "C" Ordinary Shares 10,928,000
7,475,000 Preference Shares
BE Inc. 900 common stock of $1 each 19,933,000
BE Canada 100 Common Stock 272,000
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Schedule 2
Companies and Subsidiaries
Part 1
Particulars of the Companies
1 Hydron Limited
Registered Number: 02737396
Registered Office: Hawley Lane, Farnborough, Hampshire GU14 8EQ
Date and place of incorporation: 5 August 1992, England and Wales
Directors Swag Mukerji, Crispin Simon
Secretary: Fiona Evans
VAT Number: GB5920338
Tax District and Reference Number: Reading Abbey View District - 610/87690/17649
Accounting Reference Date: 31 December
Auditors: PricewaterhouseCoopers
Authorised Share Capital 2,392,347 Ordinary Shares of 1p each
274,320 "C" Shares of 1p each
7,475,000 Preference Shares of 10p each
Issued and fully paid-up Share Capital: 2,392,347 Ordinary Shares of 1p each
274,320 "C" Shares of 1p each
7,475,000 Preference Shares of 10p each
Shareholders Biocompatibles International plc
2 Biocompatibles Eyecare Inc.
Registered Number: 54-1722855
Registered Office: 20 Trafalgar Square, Nashua, NH 03063
Date and place of incorporation: 23 September 1994, Delaware
Directors: Crispin Simon, Swag Mukerji, David Israel,
Chuck Rogers, Gary Bunch, Jotinderpal Sidhu,
Richard Dean, Glen Williams
Secretary: Swag Mukerji
-42-
Authorised Share Capital: 1000 par value $1
Auditors PricewaterhouseCoopers LLP
Issued and fully paid up Share Capital: 900
Shareholders Biocompatibles International plc
3 Biocompatibles Canada Inc.
Registered Number: 484073
Registered Office: Campney & Murphy, P.O. Box 48800, 2100 - 1111
West Georgia Street, Vancouver, BC V7X 1K9
Date and place of incorporation: November 14 1994, Canada
Directors: Bruce Tattrie, David Israel, Timothy J Nichols
Secretary: David Israel
Authorised Share Capital: 100,000 without par value
Auditors PricewaterhouseCoopers LLP
Issued and fully paid up Share Capital: 100
Shareholders Biocompatibles International plc
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Part 2
Particulars of the Subsidiaries
1 Hydron Pty Limited
Registered Number ACN 060 200 553; ABN 12 060 200 553
Registered Office 150 Richmond Road, Marleston, Adelaide, SA
5033
Unit 3b, 8-10 Rodborough Road, Frenchs
Forest, NSW 2086
12-14 Glen Osmond Road, Parkside, SA 5063
Date and place of incorporation 12 July 1993, Australia
Directors: Swag Mukerji, Fiona Evans, Michael Kotow
Secretary: Susanne Joy Delaney
Authorised Share Capital: $10,000,000 divided into 10,000,000 shares of
$1 each
Issued and fully paid-up Share Capital: 315,795 ordinary shares of $ each
Shareholders Beneficial Owners No. of Shares
Hydron Investments Limited 315,795
-------
315,795
2 Hydron SA
Registered Number B 392 002 218
Registered Office Les Collines de Sophia, Bat D1, 1900 Route des
Cretes, 065609 Sophia Antipolis Cedex
Date and place of incorporation 25 March 1994, France
Directors: Graham Mullis, Graham Lockie, Swag Mukerji,
Fiona Evans
Secretary: N/A
Issued and fully paid-up Share Capital: 2,500 shares
Shareholders Beneficial Owners No. of Shares
Hydron Investments Limited 2,494
Graham Mullis Hydron Investments Limited 1
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Shareholders Beneficial Owners No. of Shares
Graham Lockie Hydron Investments Limited 1
Fiona Evans Hydron Investments Limited 1
Swag Mukerji Hydron Investments Limited 1
Mike Driver Hydron Investments Limited 1
Crispin Simon Hydron Investments Limited 1
-----
2,500
3 Hydron Optics S.A. (Pty) Limited
Registered Number 92/05/895/07
Registered Office 1st Floor, Swiss Place, 128 van Beek Street,
New Doornfontein, Johannesburg 2094
Date and place of incorporation 4 October 1993, South Africa
Directors: Swag Mukerji, Fiona Evans
Secretary: Alet Coetzee
Issued and fully paid-up Share Capital: 1 ordinary shares of R1
Shareholders Beneficial Owners No. of Shares
Hydron Investments Limited 1
--
1
4 Hydron Limited
Registered Number 491794
Registered Office Unit B, 8th Floor, Prosperous Centre, 1
Knutsford Terrace, Tsim Sha Tsui, Kowloon,
Hong Kong
Date and place of incorporation 29 September 1994, Hong Kong
Directors: Swag Mukerji, Fiona Evans
Secretary: PricewaterhouseCoopers
Authorised Share Capital: HK$ 10,000,000 divided into 10,000,000
Ordinary Shares of HK$1 each
Issued and fully paid-up Share Capital: 2 Ordinary Shares of HK$1 each
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Shareholders Beneficial Owners No. of Shares
Hydron Investments Limited 1
Hydron Limited (UK) 1
---
2
5 Vision Hydron SA
Registered Number A-80660681
Registered Office Parque Empresarial Euronova, Ronda de
Poniente, 8, Planta 2, Ala Izquierda, 28760 Tres
Cantos, Madrid
Date and place of incorporation 13 July 1993, Spain
Directors: Swag Mukerji
Secretary: no requirement
Authorised Share Capital: 10,000
Issued and fully paid-up Share Capital: 10,000
Shareholders Beneficial Owners No. of Shares
Hydron Investments Limited Hydron Investments Limited 10,000
------
10,000
6 Hydron srl
Registered Number 11275580154
Registered Office Viale delle Rimembranze di Greco 27, 20125
Milan, Italy
Date and place of incorporation 28 July 1994, Italy
Directors: Arnaldo Sala, Antonella Miraglia, Swag
Mukerji, Fiona Evans
Secretary: N/A
Authorised Share Capital: L20,000,000 divided into
20,000,000 Ordinary Shares of L1 each
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Issued and fully paid-up Share 20,000,000 Ordinary Shares of L1 each
Capital:
Shareholders Beneficial Owners No. of Shares
Hydron Investments Limited 19,500,000
Swag Mukerji Hydron Investments Limited 500,000
---------
20,000,000
7 Vision Hydron Produtos Opticos LDA
Registered Number 504663496
Registered Office Ave. 5 Octobre, 115 6[d]D, Lisbon, 1050
Date and place of incorporation 11 May 1999, Portugal
Name: Vision Hydron Produtos Opticos LDA
Directors: Swag Mukerji
Secretary: N/A
Authorised Share Capital: 5,037.86 Euros
Issued and fully paid-up Share Capital: 5,037.86 Euros
Shareholders Beneficial Owners No. of Shares
Vision Hydron S.A. 4,888.22
Hydron Investments Limited 149.64
-----------------
5,037.86
8 Hydron Optical BV
Registered Number 230.75034
Registered Office Avelingen West 40, 4202 Ms Gorinchem, The
Netherlands
Date and place of incorporation 6 October 1993, Netherlands
Name: Hydron Optical BV
Directors: Marco Stolk, Swag Mukerji, Fiona Evans
Secretary: N/A
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Authorised Share Capital: NLG 280,000 divided in to 280 Shares of
1,000 NLG
Issued and fully paid-up Share Capital: 56,000 NLG
Shareholders Beneficial Owners No. of Shares
Hydron Investment Limited 56
pledged to NatWest Bank Plc
--
56
9 Hydron Investments Limited
Registered Number 2816294
Registered Office Hawley Lane, Farnborough, Hampshire, GU14
8EQ
Date and place of incorporation 10 May 1993, England
Name: Hydron Investments Limited
Directors: Crispin Smith, Swag Mukerji, Fiona Evans
Secretary: Fiona Evans
Authorised Share Capital: 'L'1,000 divided into
1,000 Ordinary Shares of 'L'1 each
Issued and fully paid-up Share Capital: 2 Ordinary Shares of 'L'1 each
Shareholders Beneficial Owners No. of Shares
Hydron Limited 2
---
2
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Schedule 3
Properties
A. Freehold Properties
1 Land at Norfolk, Virginia, more
particularly described in a Deed dated 11
February 1998 and made between John H
Keenan (Grantor) and Biocompatibles
Eyecare Inc. (Grantee)
B. Leasehold Properties
1 Unit C Hawley Lane, Farnborough,
Hampshire, England
Original Parties to Lease: Philips & Drew Fund Management Limited (1)
Hydron Limited (2)
Date of Lease: 2 October 1998
Current tenant and guarantor (if any): Hydron Limited
Term (including options to break and renew): 2 October 1998 to 29 September 2013
Rent and rent review dates: 'L'247,500 per annum subject to review on 29 September
2003 and 29 September 2008
2 Plot 1 Hawley Lane, Farnborough,
Hampshire, England
Original Parties to Lease: Sun Alliance and London Insurance plc (1)
Neatsimple Limited (2)
Date of Lease: 6 August 1993
Current tenant and guarantor (if any): Hydron Limited
Term (including options to break and renew): 25 March 1993 to 24 March 2008
Rent and rent review dates: 'L'218,000 per annum subject to review every 5 years on
25 March 1998 and 25 March 2003
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3 Plot 2 Hawley lane, Farnborough,
Hampshire, England
Original Parties to Lease: Sun Alliance and London Insurance plc (1)
Neatsimple Limited (2)
Date of Lease: 6 August 1993
Current tenant and guarantor (if any): Hydron Limited
Term (including options to break and 25 March 1993 to 24 March 2008
renew):
Rent and rent review dates: 'L'88,500 per annum subject to review every 5 years on
25 March 1998 and 25 March 2003
4 Office 101, New Doornfontein
Swiss Place, Sterns Park, 128 Van
Beek Street, Doornfontein, South
Africa
Original Parties to Lease: Sterns Central Administration Company (Pty) Limited (1)
Hydron Optics S.A. (Pty) Limited (2)
Date of Lease: 11 February 1994 as amended by an Agreement dated
12 August 1999
Current tenant and guarantor (if any): Hydron Optics S.A. (Pty) Limited
Term (including options to break and 11 February 1994 to 31 March 1997, extended to 31
renew): March 2004 by the Agreement dated 12 August 1999
Rent and rent review dates: Monthly rental (inclusive of VAT and operating costs):
1/4/2001 - 31/3/2002: R11,111.81
1/4/2002 - 31/3/2003: R14,029.55
1/4/2003 - 31/3/2004: R15,539.19
5 Unit B on 8th Floor of Prosperous
Centre, No. 1 Knutsford Terrace,
-50-
Tsimshatsui, Kowloon, Hong
Kong
Original Parties to Lease: Hung Chiu Development Limited (1)
Hydron Limited (2)
Date of Lease: 22 May 2000
Current tenant and guarantor (if any): Hydron Limited
Term (including options to break and renew): 15 April 2000 to 14 April 2002
Rent and rent review dates: HK 12,560 per month. No provision for review
6 Ronda de Poniente no.8, Planta 2
Ala Izquierda Centro Empresarial
Euronova, Tres Cantos, Madrid,
Spain and 15 indoor car parking spaces
Original Parties to Lease: Inmobiliaria Metropolitana Vasco Central S.A. (1)
Vision Hydron S.A. (2)
Date of Lease: 8 June 1994
Current tenant and guarantor (if any): Vision Hydron S.A.
Term (including options to break and 8 June to 7 June 2003 on giving 4 months notice. The
renew): lease renews automatically for successive one year
terms unless 4 months notice to terminate is given by
either party. The dates on which the tenant could break
the lease have passed.
Rent and rent review dates: The initial rent under the lease was 5,342,400 pesetas
per annum. The rent is reviewed annually based on the
change in the Retail Price Index, and the first review
was 1 July 1995. However, from 8 June 1997 and 8
June 2000, the rent will be reviewed in accordance with
market rates and agreed between the parties.
7 Ronda de Poniente no. 8, Ala
Derecha, Planta Baja, Oficina B,
Madrid, Spain
Original Parties to Lease: Inmobiliaria Metropolitana Vasco Central S.A. (1)
Vision Hydron S.A. (2)
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Date of Lease: 8 June 1995
Current tenant and guarantor (if any): Vision Hydron S.A.
Term (including options to break and 8 June 1995 to 7 June 2003. The lease renews
renew): automatically for successive one year terms unless 4
months notice to terminate is given by either party.
The dates on which the tenant could break the lease
have passed.
Rent and rent review dates: The initial rent under the lease was 1,392,000 peseta
per annum. The rent is reviewed annually based on
the change in the Retail Price Index, and the first
review was 1 July 1996. However, from 8 June 1997 and 8
June 2000, the rent will be reviewed in accordance with
market rent and agreed between the parties.
8 "Les Collines de Sophia", 1900
Route des Cretes, Sophia
Antipolis 06560, Valbonne, France
Original Parties to Lease: SCI les Collines de Sophia (1)
Hydron S.A. (2)
Date of Lease: 29/11/1993
Current tenant and guarantor (if any): Hydron S.A.
Term (including options to break and renew): 1 February 1993 to 31 January 2002. The tenant's options to
break the lease have passed.
Rent and rent review dates: The initial rent under the lease was 330,000FF. This is
reviewed each year to be proportional to the variation of
the quarterly construction cost index defined by I.N.S.E.E
(the French national statistics office).
9 150 Richmond Road, Marleston, South
Australia 5033
Original Parties to Lease: Nicoletta Carrocci and Don Luca Holdings Pty Limited (1)
Allergan Australia Pty Ltd (2)
Date of Lease: 23 August 1989
Current tenant and guarantor (if any): Hydron Pty Limited
Term (including options to break and The original lease was for a term of 5 years from 1 July
renew): 1989 to 30 June 1994. It was extended for a term of 5
years from 1 July 1994 to 30 June 1999 and was then
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extended again for a term of 5 years from 1 July 1999 to
30 June 2004. There is a further right to renew for a term
of 5 years commencing 1 July 2004 to 30 June 2009.
Rent and rent review dates: If the increases have occurred as stipulated in the lease
then it is likely that the current rent is AUS$259,390.39
until 30 June 2002. There is an annual increase of 4% on 1
July of each year. The rent will be reviewed to the
current rental value at renewal on 1 July 2004.
10 Unit 3B, 8-10 Rodborough Road,
Frenchs Forest, New South Wales
2086
Original Parties to Lease: Trust Company of Australia Limited (1)
Hydron Pty Limited (2)
Date of Lease: 31 October 1997
Current tenant and guarantor (if any): Hydron Pty Limited
Term (including options to break and 1 November 1997 until 31 October 2000. The Lease was
renew): recently varied (extended/renewed) for a term of 3 years
and 11 months, to expire on 30 September 2004.
Rent and rent review dates: AUS$51,250 per annum (as from 1 October 2001) subject to
annual increase of 5% on 1 October of each year.
11 12-14 Glen Osmond Road,
Parkside, South Australia 5063
Original Parties to Lease: Cappo Nominees Pty Ltd and Capare (1)
Hydron Pty Limited (2)
Date of Lease: 2 May 2001
Current tenant and guarantor (if any): Hydron Pty Limited
Term (including options to break and renew): 1 March 2001 to 30 June 2004. There is one right to renew
for a further 2 years.
Rent and rent review dates: AUS$50,000 per annum. The rent is reviewed by the Consumer
Price Index for Adelaide (All Groups) (i.e. inflation
rate) on 1 July 2002. If the lease is renewed, the rent is
then reviewed to "fair market rent".
-53-
12 Office space of about 528m'pp'2,
dispatch warehouse of about
102m'pp'2 and stock warehouse of
about 124 m'pp'2 on the first floor and
ground floor of the building at
Avelingen-West 34-90 in Gorinchem, the
Netherlands (the lessee has its address at
Avelingen-West 40)
Original Parties to Lease: Pellikaan Onroerend Goed Beheer (1)
Hydron Optical B.V. (2)
Current tenant and guarantor (if any): Hydron Optical B.V.;
Term (including options to break and renew): 1 January 2002 to 31 December 2006. If the lease is not
terminated subject to a year's notice, the lease will be
continued with subsequent terms of 5 years on similar
conditions
Rent and rent review dates: EUR 52,900.32 for the office space, EUR 5,750.52 for the
dispatch warehouse, EUR 6,462.75 for the stock warehouse
and EUR 13,860 for service costs, i.e. EUR 78,973.59 in
total (presumably per year), all excluding VAT; annual
review as of 1 April 2002 according to Retail Price Index
13 Viale delle Rimembranze n.27, Greco,
Milan, Italy
Original Parties to Lease: Rosa Felicita Cerioli and Paolo Faldi (1)
Hydron S.r.l. and Ditta Battaglia Angelo (2)
Date of Lease: [ ]
Current tenant and guarantor (if any): Hydron S.r.l. and Ditta Battaglia Angelo (2)
Term (including options to break and renew): 1 January 2002 to 31 December 2007. The lease is
automatically renewed under Italian law at the date of
first termination unless 12 months notice of termination
is given to the landlord or unless the landlord can show
one of 3 specified reasons. It is again automatically
renewed for a further 6 years at the end of that term
unless 12 months notice is given to the Landlord. On the
second renewal the landlord may terminate without
-54-
having to prove one of the specified reasons.
Rent and rent review dates: EUR 85,083 Hydron Srl is responsible for EUR 77,508. The
rent may be updated on the request of the landlord no more
than once a year to 100% of the ISTAT variation index
(under Italian law this provision is void and the maximum
which can be demanded is 75%).
14 Suit C, The Waggoner Building,
804 Greenbrier Circle,
Chesapeake, Virginia, USA
Original Parties to Lease: Waggoner Greenbrier Properties L.C. (1)
Biocompatibles Eyecare Inc (2)
Date of Lease: 22 April 1999
Current tenant and guarantor (if any): Biocompatibles Eyecare Inc
Term (including options to break and renew): 1 June 1999 to 31 May 2004
The tenant has the option to terminate the lease on the
first day of any month after the 36th month of the lease.
The tenant must give the landlord 180 days written notice
and pay the landlord no later than 60 days prior to
vacating the property a fee equal to the unamortised cost
of tenant improvements and real estate commissions
(calculated on a 5 year straight-line basis) having an
aggregate principal amount of $209,645, along with an
annual percentage rate of 10%.
Rent and rent review dates: $167,314 per annum on the date the lease was granted. The
rent is to be increased by 3% per year.
15 2138 square feet of space in
the Glass Towers building at 20
Trafalgar Square, Nashua, New
Hampshire 03063 USA
Original Parties to Lease: TNK, LLC (1)
Biocompatibles Eyecare Inc (2)
Date of Lease: 5 August 2000
Current tenant and guarantor (if any): Biocompatibles Eyecare Inc
Term (including options to break and renew): 3 years from the earlier of 1 October or 1 November 2000
(depending on completion of landlord's works) and ending
on the last day of the month in which the third
-55-
anniversary of the commencement date takes place.
Tenant may renew the lease
for up to 3 additional terms
of 2 years each.
Rent and rent review dates: $42,760 per annum for the initial term. The annual rent for
the first and second renewal terms will be a fair market
value and no information is given about the rent during the
third renewal term
-56-
Schedule 4
Intellectual Property and Information Technology
Part 1
Licences-In:
- --------------------------------------------------------------------------------------------------------------
Description Date Document reference
- --------------------------------------------------------------------------------------------------------------
Fiala Licence Agreement (Fiala Birefringent Patents) 1 October 1987 Exhibit A to 1.2.4.1 (8)
International Hydron Corporation (1) and Dr Werner
Fiala (2)
- --------------------------------------------------------------------------------------------------------------
Pilkington Licence Agreement (Freeman Multifocal 26 July 1989 Exhibit A to 1.2.4.1 (9)
Patents)
Pilkington Barnes-Hind Limited (1) and Allergan Inc (2)
- --------------------------------------------------------------------------------------------------------------
Pilkington Visioncare Inc Licence Agreement (Bufilcon) 31 Dec 1990 Exhibit A to 1.2.4.1 (10)
Pilkington Visioncare Inc (1) and Allergan Hydron
Europe Limited (2)
- --------------------------------------------------------------------------------------------------------------
International Lens Corporation and Thomas Shephard (1) 18 Feb 1977 Exhibit A to 1.2.4.1 (11)
and National Patent Development Corporation (2)
(together with all modifications
and amendments thereto) (Shephard Cast Mold Patents)
- --------------------------------------------------------------------------------------------------------------
Patent Assignment Agreement 17 Dec 1992 Exhibit A to 1.2.4.1 (12)
Pilkington Visioncare Inc (1) and Allergan Inc (2)
- --------------------------------------------------------------------------------------------------------------
Chang Licence 4 March 1988 Exhibit B to 1.2.4.1 (5)
Drs Mike and May Chang (1) and Allergan and the Chang
Licensees together with all modifications and
amendments thereto
- --------------------------------------------------------------------------------------------------------------
Ciba-Geigy Patent Licence (Fanti Toric Patents) 15 Sep 1992 Exhibit A to 1.2.4.1 (6)
Ciba Geigy Limited (1)
Allergan Optical Inc (2) together with all
modifications and amendments thereto
- --------------------------------------------------------------------------------------------------------------
Czech Licence (Spincast Patents) 6 July 1981 Exhibit A to 1.2.4.1 (7)
Czechoslovak Academy of Sciences (1) and National
Patent Development Corporation
o Agreement relating to improvements 15 June 1985
o Amendment No 1 to Czech Licence of 6 July 1981 14 Sep 1987
o Amendment No 2 to Czech Licence of 6 July 1981 23 April 1991
o Amendment No 3 to Czech Licence of 6 July 1981 31 March 1992
o Amendment No 4 to Czech Licence of 6 July 1981 2 Dec 1992
- --------------------------------------------------------------------------------------------------------------
-57-
- ---------------------------------------------------------------------------------------------------------------
Contact Lens Patent License Agreement 6 August 1993 1.2.4.1 (18)
Allergan Inc (1)
Neatsimple Limited (2)
- ---------------------------------------------------------------------------------------------------------------
Cohen Contact Lens Licence 23 Dec 1986 Exhibit A to 1.2.4.1 (13)
International Hydron Corporation (1) and Dr Allen
Cohen (2)
o Amendment Agreement 4 June 1987
1991
o Second Amendment Agreement
- ---------------------------------------------------------------------------------------------------------------
Multifocal Contact Lens (Portney Agreement) 6 Aug 1993 1.2.4.1 (20)
Allergan Inc (1)
Allergan Medical Optics Inc (2)
Neatsimple Limited (3)
- ---------------------------------------------------------------------------------------------------------------
Technology Licensing and Assistance Agreement 6 Jul 1995 1.3.1.4 (1)
Hydron Limited (1) and Contact Lens Technologies (2)
- ---------------------------------------------------------------------------------------------------------------
Side Letter 6 Jul 1995 1.3.1.2 (2)
Hydron Limited (1) and Contact Lens Technologies (2)
- ---------------------------------------------------------------------------------------------------------------
Supplemental Agreement to Technology Licensing and 1998 1.3.1.4 (2)
Assistance Agreement
Hydron Limited (1) and Contact Lens Technologies (2)
- ---------------------------------------------------------------------------------------------------------------
Design and Supply Agreement 6 Jul 1995 1.3.1.2 (9)
Hydron Limited (1) and Aspect Vision Care Limited (2)
- ---------------------------------------------------------------------------------------------------------------
-58-
Part 2
Licences-Out:
- -----------------------------------------------------------------------------------------------------------
Description Date Document No reference
- -----------------------------------------------------------------------------------------------------------
Diversified Ophthalmics 15 July 1998 1.3.1.10
Biocompatibles Eyecare Inc (1) and Diversified
Ophthalmics Inc (2)
- -----------------------------------------------------------------------------------------------------------
Pfortner Cornealant Manufacturing and Distribution 1 August 1999 1.3.1.11
Agreement
Biocompatibles [Eyecare] Inc (1) and Pfortner
Cornealant (2)
- -----------------------------------------------------------------------------------------------------------
Licence Agreement between Hydron Limited and 17 July 2001 1.3.1.2 (12)
Visiontec CL Limited
- -----------------------------------------------------------------------------------------------------------
Patent Licence Agreement May 1993 Exhibit A to 1.2.4.1 (4)
Allergan Inc (1) and Allergan Medical Optics (2)
- -----------------------------------------------------------------------------------------------------------
Contact Lens Licence Agreement 19 October 1992 Exhibit B to 1.2.4.1 (4)
Allergan Inc (1) and OSI (2)
- -----------------------------------------------------------------------------------------------------------
Amendment No 1 to Contact Lens Licence Agreement September 1992
Allergan Inc (1) and OSI (2)
- -----------------------------------------------------------------------------------------------------------
-59-
Part 3
Patent Rights:
Our Ref. Country Patent No. Application No. Status
- -------- ------- ---------- --------------- ------
P/475.AT Austria - European 0746459 95909050.7 Granted
P/475.AU Australia 686745 17152/95 Granted
P/475.BE Belgium - European 0746459 95909050.7 Granted
P/475.CH Switzerland - European 0746459 95909050.7 Granted
P/475.DE Germany - European 0746459 95909050.7 Granted
P/475.DK Denmark - European 0746459 95909050.7 Granted
P/475.EP European 0746459 95909050.7 Granted
P/475.ES Spain - European 0746459 95909050.7 Granted
P/475.FR France-European 0746459 95909050.7 Granted
P/475.GB Great Britain 2287421 9404170.4 Granted
P/475.GR Greece - European 0746459 95909050.7 Granted
P/475.IE Ireland - European 0746459 95909050.7 Granted
P/475.IL Israel 112815 112815 Granted
P/475.IN India 324/DEL/95 Pending
P/475.IT Italy - European 0746459 95909050.7 Granted
P/475.LU Luxembourg - European 0746459 95909050.7 Granted
P/475.MC Monaco - European 0746459 95909050.7 Granted
P/475.NL Netherlands - European 0746459 95909050.7 Granted
P/475.PT Portugal - European 0746459 95909050.7 Granted
P/475.SE Sweden - European 0746459 95909050.7 Granted
P/475.ZA South Africa 95/1650 95/1650 Granted
P/640.WO WIPO - International PCT/GB97/03223 Pending
P/1016.WO WIPO - International PCT/GB97/02130 Pending
P/1106.GB Great Britain Pending
P/3338.AU Australia 88787/98 Pending
P/3338.CA Canada 2,301,229 Pending
P/3338.EP European 98940466.0 Pending
P/3338.GB Great Britain 9718819.7 Pending
P/3338.JP Japan 2000-508589 Pending
P/3338.NZ New Zealand 503184 Pending
P/3338.US United States of America 09/486,535 Pending
P/3338.WO WIPO - International PCT/GB98/02644
P/4217.GB Great Britain Pending
P/5568.CA Canada 2019685 2019685-8 Granted
P/5568.JP Japan 2950866 237395/89 Granted
P/5617.CA Canada 2,098,822 Pending
P/5617.JP Japan 04-503745 Pending
P/5617.US United States of America 5151106 07/632,466 Granted
P/5627.CA Canada Pending
P/5627.EP European 00907794.2 Pending
P/5627.GB Great Britain 9908808.0 Pending
P/5627.JP Japan 2000-612247 Pending
-60-
P/5627.US United States of America 09/977,880 Pending
P/5627.WO WIPO - International PCT/GB00/00780
P/5628.CA Canada Pending
P/5628.EP European 00907783.5 Pending
P/5628.GB Great Britain 9908806.4 Pending
P/5628.JP Japan 2000-612246 Pending
P/5628.US United States of America Pending
P/5628.WO WIPO - International PCT/GB00/00765
P/7129.EP European 00966300.6 Pending
P/8059.CA Canada 1,253,368 455,155 Granted
P/8059.JP Japan 1814267 502171/84 Granted
P/8059.US United States of America 4,681,295 06/759,918 Granted
P/8360.AU Australia 605454 25323/88 Granted
P/8360.BR Brazil PI8807204-5 PI8807204-5 Granted
P/8360.US United States of America 4,782,946 97868 Granted
P/8670.AU Australia 566289 29594/84 Granted
P/8670.BE Belgium - European 0165360 84401245.0 Granted
P/8670.CA Canada 1,236,662 456,876 Granted
P/8670.DE Germany - European 0165360 84401245.0 Granted
P/8670.FR France - European 0165360 84401245.0 Granted
P/8670.GB Great Britain - European 0165360 84401425.0 Granted
P/8670.IE Ireland 56239 1521/84 Granted
P/8670.IL Israel 72158 72158 Granted
P/8670.IT Italy - European 0165360 84401245.0 Granted
P/8670.NL Netherlands - European 0165360 84401245.0 Granted
P/8670.ZA South Africa 84/4647 84/4647 Granted
P/8672.BE Belgium - European 0165359 84401244.3 Granted
P/8672.CA Canada 1208409 456,877 Granted
P/8672.CH Switzerland - European 0165359 84401244.3 Granted
P/8672.DE Germany - European 0165359 84401244.3 Granted
P/8672.FR France - European 0165359 84401244.3 Granted
P/8672.GB Great Britain - European 0165359 84401244.3 Granted
P/8672.IL Israel 72161 72161 Granted
P/8672.IT Italy - European 0165359 84401244.3 Granted
P/8672.US United States of America 4468184 490626 Granted
P/8672.ZA South Africa 84/4649 84/4649 Granted
P/8755.AU Australia 569093 30457/84 Granted
P/8755.BE Belgium - European 0140717 84401444.9 Granted
P/8755.CA Canada 1,217,019 458,536 Granted
P/8755.CH Switzerland - European 0140717 84401444.9 Granted
P/8755.DE Germany - European 0140717 84401444.9 Granted
P/8755.FR France - European 0140717 84401444.9 Granted
P/8755.GB Great Britain - European 0140717 84401444.9 Granted
P/8755.IE Ireland 56985 1766/84 Granted
P/8755.IL Israel 72382 72382 Granted
P/8755.IT Italy - European 0140717 84401444.9 Granted
-61-
P/8755.LU Luxembourg - European 0140717 84401444.9 Granted
P/8755.NL Netherlands - European 0140717 84401444.9 Granted
P/8755.SE Sweden - European 0140717 84401444.9 Granted
P/8755.ZA South Africa 84/5367 84/5367 Granted
P/84224.ES Spain - European 0262270 86307630.3 Granted
P/84234.ES Spain - European 0564583 92903576.4 Granted
P/84256.ES Spain - European 0309154 88308547.4 Granted
P/84257.ES Spain - European 0308226 88308546.6 Granted
P/84748.US United States of America 5,300,262 07/970,587 Granted
P/84767.US United States of America 5,076,683 07/244,436 Granted
P/84785.US United States of America 4,923,480 07/099,038 Granted
P/84805.US United States of America 4738530 883969 Granted
P/84823.US United States of America 4634449 778,576 Granted
P/84824.US United States of America 4632055 715,095 Granted
P/84826.US United States of America 4620851 823,378 Granted
P/84831.US United States of America 4,584,148 715,544 Granted
P/84835.US United States of America 4559897 718,183 Granted
P/84837.US United States of America 4551086 Granted
P/84838.US United States of America 4543882 630,937 Granted
P/84841.US United States of America 4,534,723 575,250 Granted
P/84842.US United States of America 4518390 596694 Granted
P/84844.US United States of America 4,517,140 490,598 Granted
P/84845.US United States of America 4,516,924 491,159 Granted
P/84979.CH Switzerland - European 0564583 92903576.4 Granted
P/84982.CH Switzerland - European 0262270 86307630.3 Granted
P/84985.CH Switzerland - European 0152330 85400140.1 Granted
P/85015.CH Switzerland - European 0309154 88308547.4 Granted
P/85016.CH Switzerland - European 0308226 88308546.6 Granted
P/85081.SE Sweden - European 0309154 88308547.4 Granted
P/85082.SE Sweden - European 0308226 88308546.6 Granted
P/85117.SE Sweden - European 0564583 92903576.4 Granted
P/85120.SE Sweden - European 0262270 92903576.4 Granted
P/85122.SE Sweden - European 0152330 Granted
P/85135.ES Spain 541502 541502 Granted
P/85173.ZA South Africa 90/2350 90/2350 Granted
P/85293.MC Monaco - European 0564583 92903576.4 Granted
P/85312.LU Luxembourg - European 0564583 92903576.4 Granted
P/85329.LU Luxembourg - European 0309154 88308547.4 Granted
P/85330.LU Luxembourg - European 0308226 88308546.6 Granted
P/85366.JP Japan 1636253 Granted
P/85370.JP Japan 1603692 16372/85 Granted
P/85413.IT Italy - European 0564583 92903576.4 Granted
P/85445.IT Italy - European 0309154 88308547.4 Granted
P/85446.IT Italy - European 0308226 88308546.6 Granted
P/85493.IT Italy - European 0359539 89309277.5 Granted
P/85496.IT Italy - European 0262270 86307630.3 Granted
-62-
P/85501.IT Italy - European 0152330 85400140.1 Granted
P/85512.IL Israel 87487 87487 Granted
P/85543.IE Ireland 67153 2815/88 Granted
P/85593.NL Netherlands - European 0564583 92903576.4 Granted
P/85597.NL Netherlands - European 0262270 86307630.3 Granted
P/85600.NL Netherlands - European 0152330 85400140.1 Granted
P/85642.NL Netherlands - European 0309154 88308547.4 Granted
P/85643.NL Netherlands - European 0308226 88308546.6 Granted
P/85679.GR Greece - European 0262270 86307630.3 Granted
P/85686.GR Greece - European 0564583 92903576.4 Granted
P/85699.GR Greece - European 0309154 88308547.4 Granted
P/85700.GR Greece - European 0308226 88308546.6 Granted
P/85713.DE Germany - European 0564583 92903576.4 Granted
P/85716.DE Germany - European 0359539 89309277.5 Granted
P/85721.DE Germany - European 0262270 86307630.3 Granted
P/85729.DE Germany - European 0156624 85301938.8 Granted
P/85730.DE Germany - European 0152330 85400140.1 Granted
P/85799.DE Germany - European 0309154 883028547.4 Granted
P/85800.DE Germany - European 0308226 88308546.6 Granted
P/85857.FR France - European 0564583 92903576.4 Granted
P/85864.FR France - European 0359539 89309277.5 Granted
P/85870.FR France - European 0262270 86307630.3 Granted
P/85880.FR France - European 0156624 85301938.8 Granted
P/85882.FR France - European 0152330 85400140.1 Granted
P/85944.FR France - European 0309154 88308547.4 Granted
P/85945.FR France - European 0308226 88308546.6 Granted
P/86014.DK Denmark - European 169490 4778/86 Granted
P/86025.DK Denmark - European 0564583 92903576.4 Granted
P/86053.CN China 27225 88106812.8 Granted
P/86065.CA Canada 1,325,083 577,904 Granted
P/86086.CA Canada 1252960 476,984 Granted
P/86088.CA Canada 1246985 473,102 Granted
P/86094.CA Canada 1235707 434991 Granted
P/86105.CA Canada 1211906 440,948 Granted
P/86133.CA Canada 1,311,221 577,568 Granted
P/86135.CA Canada 1291300 520123 Granted
P/86150.BE Belgium - European 0262270 86307630.3 Granted
P/86154.BE Belgium - European 0152330 85400140.1 Granted
P/86165.BE Belgium - European 0564583 92903576.4 Granted
P/86187.BE Belgium - European 0309154 88308547.4 Granted
P/86188.BE Belgium - European 0308226 88308546.6 Granted
P/86235.AT Austria - European 0262270 86307630.3 Granted
P/86238.AT Austria - European 0564583 92903576.4 Granted
P/86250.AT Austria - European 0309154 88308547.4 Granted
P/86251.AT Austria - European 0308226 88308546.6 Granted
P/86293.AU Australia 619505 25374/88 Granted
-63-
P/86304.AU Australia 588921 63531/86 Granted
P/86313.AU Australia 569138 38047/85 Granted
P/86316.AU Australia 566311 29595/84 Granted
P/86318.AU Australia 564462 91422/82 Granted
P/86381.GB Great Britain - European 0564583 92903576.4 Granted
P/86400.GB Great Britain - European 0359539 89309277.5 Granted
P/86411.GB Great Britain - European 0309154 88308547.4 Granted
P/86412.GB Great Britain - European 0308226 88308546.6 Granted
P/86417.GB Great Britain - European 0262270 86307630.3 Granted
P/86427.GB Great Britain - European 0156624 85301938.8 Granted
P/86429.GB Great Britain - European 0152330 85400140.1 Granted
P/86824.GB Great Britain 2130507 8329967 Granted
-64-
Part 3
Trade Marks (Registrations)
Country: Trade Mark: Reg. No:
- -------- ----------- --------
Egypt Z 4F 79506
Italy ECHELON 553761
Italy HYDRON 499672
Italy HYDRON Logo 409339
Italy ZERO 6T 649532
Italy TRX 649533
Italy H67 649538
Malaysia HYDRON 84/05395
Malaysia HYDRON Logo 84/05396
Malaysia HYDRON 85/01231
Australia RP TORIC 532744
Australia HYGMA 755417
Australia SOFBLUE 551278
Australia SOFTINTS/SofTints (Series of 2) 554535
Australia HYDRON 260677
Australia ECHELON 504726
Australia ACTITORIC 654451
Australia ACTIFRESH 702523
Australia ACCLAIM 542811
Australia ZERO 6 676138
Australia HYDRON Logo 382401
Australia HYDRON & Device 631164
Austria ZERO 4 144804
Austria ZERO 4F 144805
-65-
Country: Trade Mark: Reg. No:
- -------- ----------- --------
Austria ACTIFRESH 170949
Austria ZERO 6 144808
Austria ACTITORIC 170950
Austria ECHELON 125456
Austria Z6 144809
Austria ULTRA T 157515
Austria Z4 144806
Austria Z4F 144807
Benelux ACTIFRESH 564359
Benelux ACTITORIC 567932
Benelux ECHELON 459288
Benelux HYDRON 468053
Benelux HYDRON & Device 553160
Benelux HYDRON Logo 384179
Benelux ULTRA T 497253
Cyprus HYDRON 47869
Cyprus HYDRON 47868
Denmark ACTIFRESH 03060/1997
Denmark ACTITORIC 03061/1997
Denmark SOFBLUE 2262/1992
Denmark OMNIFLEX 2261/1992
Denmark HYDRON 1202/1975
Denmark ECHELON 8212/1992
Egypt ACCLAIM 79503
Egypt ZERO 6 79510
Egypt ZERO 4 79508
Egypt HYDRON 111233
-66-
Country: Trade Mark: Reg. No:
- -------- ----------- --------
Euro-Community SOFBLUE 001020247
(CTM)
Euro-Community OMNIFLEX 001047984
(CTM)
Euro-Community HYGMA 000749903
(CTM)
Euro-Community HYDRON & Device 000296509
(CTM)
Euro-Community ACTIDAY 001076413
(CTM)
Euro-Community ACTISOFT 000760256
(CTM)
Euro-Community HYDRON 000292763
(CTM)
Euro-Community ECHELON 000939439
(CTM)
Euro-Community ACTI UV FORMULA 001076884
(CTM)
Euro-Community ACTICOLOR 001076223
(CTM)
Euro-Community ZERO 6 001020999
(CTM)
Finland ACTITORIC 209774
Finland SOFBLUE 121519
Finland ZERO 4 121684
Finland ZERO 4F 121685
Finland ZERO 6 121686
Finland ACCLAIM 120032
Finland OMNIFLEX 121518
Finland ACTIFRESH 209775
France H67 94548275
France ACTITORIC 95560283
-67-
Country: Trade Mark: Reg. No:
- -------- ----------- --------
France HYDRON & Device 94520448
France ECHELON 1512506
France ACTIFRESH 94540129
France SOFBLUE 1557362
France ZERO 6 1557368
France HYDRON 93474800
France HYDRON 95557934
France HYDRON Logo 1217212
Germany OMNIFLEX 39402226
Germany HYDRON ULTRA T 39405454
Germany HYDRON & Device 2907573
Germany ACTITORIC 39709975
Germany ZERO 6 39401899
Germany ACTIFRESH 39709974
Greece OMNIFLEX 131779
Greece ZERO 6 131778
Greece ACTIFRESH 128935
Greece HYDRON 129477
Greece ECHELON 92909
Greece ACTITORIC 132478
Greece ULTRA T 123462
Hong Kong ACTICOMFORT 00611/2001
Hong Kong RP TORIC 3004/93
Hong Kong ACTISOFT 01976/1997
Hong Kong HYDRON Logo 834/88
Hong Kong SOFTINTS B01237/93
Hong Kong ECHELON 3287/91
-68-
Country: Trade Mark: Reg. No:
- -------- ----------- --------
Hong Kong HYDRON 152/77
Hong Kong HYDRON 153/77
Hong Kong HYDRON Logo 835/88
Hong Kong HYDRON ZERO 4 865/89
Hong Kong SOFBLUE B06843/94
Hong Kong ACTIFRESH 5799/1997
Indonesia ACCLAIM 285008
Indonesia ULTRA T 354453
Iran HYDRON ZERO 6 78032
Iran HYDRON OMNIFLEX 78033
Ireland ZERO 6 B172583
Ireland ECHELON 133026
Israel ECHELON 71488
Israel HYDRON 40500
Israel OMNIFLEX 79236
Israel ZERO 4 79241
Israel ZERO 6 79243
Italy ACTIFRESH 701004
Italy ACTITORIC 725472
Italy HYDRON & Device 698459
Japan HYDRON ZERO 4 in katakana 2469985
Japan HYDRON 1222351
Japan HYDRON (katakana) 926324
Japan HYDRON Z4 2469986
Japan HYDRON and device 3325320
Japan ECHELON in katakana 2584041
Japan HYDRON ZERO 6 4289898
-69-
Country: Trade Mark: Reg. No:
- -------- ----------- --------
Japan ZERO 4F in English and in 2418630
katakana
Japan HYDRON ZERO 4 2469984
Japan ECHELON 2331572
Korea (Republic of) HYDRON 396646
Korea (Republic of) OMNIFLEX 235133
Korea (Republic of) OMNIFLEX 235132
New Zealand ACTIFRESH 258881
New Zealand ULTRAT 243140
New Zealand SOFBLUE 208549
New Zealand OMNIFLEX 208548
New Zealand HYDRON 243910
New Zealand ECHELON 190877
New Zealand ACTITORIC 273479
New Zealand ACCLAIM 205008
New Zealand ZERO 6 243911
Norway ZERO 6 150117
Norway HYDRON ULTRA T 175282
Norway ZERO 4 150116
Norway ACTIFRESH 189246
Norway ACCLAIM 173197
Norway HYDRON 200034
Norway ACTITORIC 189245
Norway OMNIFLEX 157323
Norway SOFBLUE 152801
Philippines HYDRON 37694
Philippines ZERO 4 37708
Portugal ECHELON 253315
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Country: Trade Mark: Reg. No:
- -------- ----------- --------
Portugal ACTIFRESH 315536
Portugal ACTITORIC 322428
Portugal OMNIFLEX 305207
Portugal Z6 272342
Portugal ZERO 4 272343
Portugal ZERO 6 272345
Russian Federation HYDRON 139006
Russian Federation OMNIFLEX 139000
Saudi Arabia HYDRON 448/91
Saudi Arabia ZERO 6 241/99
Singapore ECHELON 764/89
Singapore ULTRA T 7826/90
Singapore RP TORIC 2728/90
Singapore HYDRON and device 4571/94
Singapore HYDRON 1166/85
Singapore ACCLAIM 6652/90
South Africa HYGMA 98/02365
South Africa ULTRA T 94/12471
South Africa RP TORIC 90/2962
South Africa OMNIFLEX 94/12470
South Africa HYDRON and device 94/5166
South Africa HYDRON 77/3675
South Africa ACTITORIC 95/02795
South Africa ACTISOFT 95/10776
South Africa ACTIFRESH 96/01957
South Africa Z4 91/3072
South Africa Z6 91/3076
-71-
Country: Trade Mark: Reg. No:
- -------- ----------- --------
Spain HYDRON 696083
Spain HIDRUN 258086
Spain ACTIFRESH 1929878
Spain ECHELON 1300874
Spain HYDRON 2110305
Spain ACTITORIC 1952990
Sweden SOFBLUE 240835
Sweden ACCLAIM 264223
Sweden ACTIFRESH 327808
Sweden ACTITORIC 97/02206
Sweden ECHELON 242442
Sweden HYDRON 182138
Sweden HYDRON ULTRA T 311657
Switzerland ACCLAIM 384570
Switzerland ACTITORIC 445599
Switzerland ACTIFRESH 445598
Switzerland OMNIFLEX 390213
Switzerland ECHELON 370189
Switzerland SOFBLUE 388788
Switzerland HYDRON 432132
Switzerland Z6 432133
Taiwan HYDRON 514851
Taiwan HYDRON ZERO 6 782800
Taiwan HYDRON SPINCAST 680213
Taiwan HYDRON (in Chinese) 366194
Thailand HYDRON 8499
Thailand HYDRON ZERO 4 KOR40583
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Country: Trade Mark: Reg. No:
- -------- ----------- --------
Turkey HYDRON 178737
United Arab Emirates HYDRON 28530
United Kingdom Z6 1443317
United Kingdom ECHELON 1374055
United Kingdom ACTITORIC 2012110
United Kingdom ACTIFRESH 2048133
United Kingdom HYDRON 1530043
United Kingdom HYDRON Logo 1184825
United Kingdom HYDRON Logo 1184826
United Kingdom HYDRON ZERO 4 1305850
United Kingdom HYDRON 1245406
United Kingdom LE WEEKEND 1254374
United Kingdom OMNIFLEX 1461122
United Kingdom Z4 ZERO 4 1443312
United Kingdom REFLEX 2032364
United Kingdom HYDRON 1000379
United Kingdom ULTRA T 2001280
United Kingdom ZERO 6 1443314
-73-
Part 3
Trade Marks (Applications)
Country: Trade Mark: App. No:
- -------- ----------- --------
Malaysia HYDRON ZERO 6 90/03263
Kuwait HYDRON 38364
Malaysia HYDRON ZERO 4 97/11587
Pakistan HYDRON 143690
Spain HYDRON 1950119
Taiwan HYDRON ACTITORIC in Chinese Characters 89028910
Taiwan HYDRON ZERO 4 in Chinese Characters 89028911
United States of America ACTITORIC 75/749967
United States of America ACTIFRESH 75/749968
-74-
Part 3
Registered Designs
Our Ref. Country Registration No. Application No. Status
- -------- ------- ---------------- --------------- ------
D/301.GB Great Britain 2068774 2068774 Granted
D/301.GBA Great Britain 2074904 2074904 Granted
D/301.US United States of America D431720 29/084,364 Granted
D/306.GB Great Britain 2068775 2068775 Granted
D/84139.BX Benelux 30342-00 74207-00 Granted
D/96135.IT Italy FI/98/0/15 FI/98/0/15 Granted
D/96304.FR France 981328 981328 Granted
D496 11 Germany M9802344.6 Pending
D497 1 Japan 6051/1998 Pending
-75-
Part 3
Domain Names
Name Company
- ---- -------
Biocompatibles.cc Biocompatibles Eyecare Inc
Biocompatibles.com Biocompatibles Eyecare Inc
Biocompatibles.it Hydron srl
Biocompatibles-Hydron.fr Biocompatibles - Hydron SA
Hydron.co.uk Hydron Ltd
Hydron.es Hydron Ltd
Hydron.it Hydron Ltd
Hydron-contatclenses.com Hydron Ltd
Proclear.biz Biocompatibles Eyecare Inc
Proclear.cc Biocompatibles Eyecare Inc
Proclear.com Biocompatibles Eyecare Inc
Proclear.info Biocompatibles Eyecare Inc
-76-
Part 4
IT Contracts
- -----------------------------------------------------------------------------------------
Description Date
- -----------------------------------------------------------------------------------------
Custom Software License Agreement 6 August 1993
Allergan Inc(1) and Neatsimple Limited (2)
- -----------------------------------------------------------------------------------------
Service Agreement 9 August 1994
Panacea Limited (1) Hydron Limited (2)
- -----------------------------------------------------------------------------------------
System Managed Services Support 6 June 2001
Panacea Limited (1) and Biocompatibles Hydron (2)
- -----------------------------------------------------------------------------------------
Master Licence Agreement (895015)
Mapics Inc (1) and Biocompatibles Eyecare Inc (2)
- -----------------------------------------------------------------------------------------
Schedule to Master Licence Agreement September 1999
Mapics Inc (1) and Biocompatibles Eyecare Inc (2)
- -----------------------------------------------------------------------------------------
Addendum to Master Licence Agreement September 1999
Mapics Inc (1) and Biocompatibles Eyecare Inc (2)
- -----------------------------------------------------------------------------------------
Rental Agreement October 2000
Systems Capital plc (HFGL Ltd) (1) and Hydron Limited (2)
- -----------------------------------------------------------------------------------------
On-site Maintenance Agreement December 1994
ROCC Computers Limited (1) and Hydron Limited (2)
- -----------------------------------------------------------------------------------------
Equipment Lease 18 April 2001
Oxford Leasing (1)
Hydron Limited (2)
- -----------------------------------------------------------------------------------------
Support Agreement November 2001
IP Integration Limited (1) and Biocompatibles Hydron Limited (2)
- -----------------------------------------------------------------------------------------
2 Leases 4 August 2000
Oxford Leasing (1) and Biocompatibles International Plc (2) 21 December 1999
- -----------------------------------------------------------------------------------------
Agreement between Vistorm Limited (1) and Biocompatibles Limited (2) 12 June 2001
- -----------------------------------------------------------------------------------------
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Schedule 5
Closing Obligations
1 General Obligations
1.1 Seller's Obligations
On Closing, the Seller shall deliver or make available to the
Purchasers the following:
1.1.1 evidence of the due fulfilment of the condition set out in
Clause 4.1;
1.1.2 the Tax Indemnity duly executed by the Seller;
1.1.3 the Transitional Services Agreement referred to in Clause 5.3
duly executed by Biocompatibles Limited;
1.1.4 the Licence Agreements duly executed by Biocompatibles Limited
(or any member of its Group);
1.1.5 evidence that the Seller is authorised to execute this
Agreement, the Tax Indemnity, the Transitional Services
Agreement referred to in Clause 5.3 and the Share Transfers;
1.1.6 the Trade Mark Assignment duly executed by Biocompatibles
Limited;
1.1.7 the sub-licences duly executed by Biopolymerix, Inc and the
Seller;
1.1.8 executed transfers with respect to each of the Shares not held
by a Group Company in favour of the Purchasers' nominees; and
1.1.9 evidence of the release of the pledge given by Hydron
Investments Limited in favour of Natwest Bank in respect of
shares in the capital of Hydron Optic BV.
1.2 The Purchaser's Obligations
On Closing, the Purchasers shall deliver or make available to the
Seller:
1.2.1 the Tax Indemnity duly executed by the Purchasers;
1.2.2 the Transitional Services Agreement referred to in Clause 5.3
duly executed by the Purchasers;
1.2.3 the Licence Agreements duly executed by the relevant members
of the US Purchaser's Group; and
1.2.4 evidence that the Purchasers are authorised to execute this
Agreement, the Tax Indemnity, the Transitional Services
Agreement referred to in Clause 5.3, the promissory notes
referred to in Clause 6.3 and the related security documents;
1.2.5 the Trade Mark Assignment duly executed by a member of the US
Purchaser's Group; and
1.2.6 the sub-licences duly executed by a member of the US
Purchaser's Group.
2 Transfer of the Shares
2.1 General Transfer Obligations
On Closing, the Seller and the Purchasers shall execute and deliver
such instruments of transfer of the Shares as may be reasonably
required to transfer the Shares (the "Share Transfers") (together with
the relevant share or stock certificate or an indemnity in the case of
any certificate found to be missing) and take such steps as are
required to transfer the Shares.
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2.2 On Closing the Seller shall deliver to the Purchasers certificates in
respect of all the issued shares in the capital of each of the
subsidiaries of Hydron and BE Inc and duly executed transfers of all
the shares in any such company held by any person other than Hydron or
BE Inc in favour of such persons as the Purchasers shall direct.
3 Further Obligations
3.1 General Obligations
The Seller shall deliver or make available to the Purchasers (at their
option) the following, insofar as they relate to the Group Companies
the subject of the Closing:
3.1.1 the written resignations in the agreed terms (and legalised by
a notary where required) of each of the persons nominated by
the Purchaser in writing 10 days before Closing, to take
effect on Closing;
3.1.2 if practicable, the Seller having used all reasonable
endeavours to obtain the same, the written resignations of the
auditors of the Group Companies concerned to take effect on
the Closing Date, with acknowledgements signed by each of them
in a form satisfactory to the Purchasers to the effect that
they have no claim against any Group Company or otherwise
complying with any relevant law or regulation;
3.1.3 if the Purchasers reasonably require and notify the Seller at
least 10 days before Closing, irrevocable powers of attorney
or such other appropriate document (in such form as the
Purchasers may reasonably require) executed by each of the
holders of the Shares in favour of the Purchasers or as it may
direct to enable it (pending registration of the relevant
transfers) to exercise post Closing all voting and other
rights attaching to the Shares and to appoint proxies for this
purpose with an express undertaking of the holder of the
Shares not to exercise such voting or other rights attaching
to the Shares;
3.1.4 evidence of the termination of the agreements between the
Group Companies and other members of the Seller's Group at no
cost to the Purchaser or any Group Company;
3.1.5 in each case where the said information is not in the
possession of the relevant Group Company, the corporate books
and records, (duly written up-to-date), including the
shareholders' register and share certificates in respect of
the Subsidiaries, and all other books and records, all to the
extent required to be kept by each Group Company under the law
of its jurisdiction of incorporation;
3.1.6 evidence as to:
(i) the acceptance by shareholders or the directors of
each of the relevant Group Companies of the
resignations referred to in paragraph 3.1.1 of this
Schedule 5 and of the appointment of such persons to
take effect on Closing (within the maximum number
permitted by the constitutional documents of the
Group Company concerned) as the Purchasers may
nominate as directors and (if relevant) secretary;
(ii) the acceptance by shareholders or the directors of
the relevant Group Companies of the resignation of
the auditors referred to in paragraph 3.1.2 of this
Schedule 5 and of the appointment of such auditors as
the Purchasers may nominate;
(iii) the approval by the shareholders or the directors of
the transfer of the Shares to the Purchasers;
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where such acceptance or approval is required by law
or under the constitutional documents of the Group
Company concerned.
3.1.7 a list of all bank accounts, signing authorities for such
accounts and their Closing balances at least 10 days before
Closing;
3.1.8 evidence reasonably satisfactory to the Purchasers of the
revocation of existing authorities given by the Group Company
to banks (in respect of the operation of its bank accounts)
and giving authority in favour of such persons as the
Purchasers may nominate to operate such accounts.
3.1.9 Following Closing, the Purchasers shall procure at the
Seller's expense (as to out of pocket expenses only) that the
relevant Group Companies promptly execute all documentation,
and take all other steps, which are necessary in order to
transfer ownership of the biocompatibles.it, biocompatibles.cc
and biocompatibles.com domain names to Biocompatibles Limited
or such other company as the Seller may direct.
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Schedule 6
Post Closing Adjustments
(Clause 6)
1 Form of Net Asset Statement
The Net Asset Statement shall be drawn up in the form set out below:
2 Accounting Policies
2.1 The Net Asset Statement shall be drawn up in accordance with:
2.1.1 the accounting principles generally accepted in the United
Kingdom; and
2.1.2 to the extent not inconsistent with paragraph 2.1.1, the
accounting policies, procedures and practices adopted in the
Accounts, applied on a consistent basis, subject to any
modifications specified in Clause 2.4 below.
2.2 The Net Asset Statement shall be drawn up as at close of business in
the relevant locations at the date on which Closing takes place. No
account shall be taken of events taking place after the close of
business (local time) on the Closing Date and regard shall only be had
to information available to the parties to this Agreement at that time.
2.3 The Net Asset Statement shall be expressed in pounds sterling.
2.4 For the purposes of accounting for slow moving stock provisions, the
following policies shall apply:
Slow moving - all stocks of products on a parameter by
Stock parameter basis (other than PC Compatibles and PC
Compatibles Torics which shall be treated in
accordance with the Group Companies standard
accounting policies) in blister-packaged form in
excess of 12 months' requirements and in
vial-packaged form in excess of 12 months'
requirements shall be written off.
Short dated stock - all stocks of products (including for
the avoidance of doubt, PC Compatibles and PC
Compatible Torics) which in the case of
blister-packaged stocks have an expiry date within
12 months' of Closing and in the case of vial-
packaged stocks have an expiry date within six
months of Closing shall be written off.
3 Preparation
3.1 No later than 60 days following Closing the Purchasers shall deliver to
the Seller the Draft Net Asset Statement. Prior to such delivery, the
Purchasers shall so far as is practicable consult with the Seller with
a view to reducing the potential areas of disagreement.
3.2 In order to enable the Purchasers to prepare and agree the Draft Net
Asset Statement, the Seller shall keep up-to-date and, subject to
reasonable notice, make available to the Purchasers' representatives
and to the Purchasers' accountants all books and records relating to
the Group during normal office hours and co-operate with them with
regard to the preparation and agreement of the Draft Net Asset
Statement.
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3.3 The Purchasers agree insofar as it is reasonable to do so, to make
available the services of the employees of the Group to assist the
Seller in the performance of its duties under this Agreement. If the
Seller does not within 30 days of presentation to it of the Draft Net
Asset Statement give notice to the Purchasers that it disagrees with
the Draft Net Asset Statement or any item thereof, such notice stating
the reasons for the disagreement in reasonable detail and specifying
the adjustments which, in the Sellers opinion should be made to the
Draft Net Asset Statement (the "Sellers Disagreement Notice"), the
Draft Net Asset Statement shall be final and binding on the parties for
all purposes. If the Seller gives a valid Sellers Disagreement Notice
within such 30 days, the Seller shall keep up to date and, subject to
reasonable notice, make available to the Purchasers representatives and
the Purchasers' accountants all books and records relating to the
relevant part of the Group during normal office hours during the period
from the date of the Seller's Disagreement Notice until the date on
which such disagreement is resolved. The Seller and the Purchasers
shall attempt in good faith to reach agreement in respect of the Draft
Net Asset Statement and, if they are unable to do so within 21 days of
such notification, the Seller or either of the Purchasers may by notice
to the other (an "Appointment Notice") require that the Draft Net Asset
Statement be referred to. An independent accountant which in the
absence of agreement between the parties shall be appointed by the
President of the Institute of Chartered Accountants (the "Reporting
Accountants").
3.4 Within 21 days of the giving of an Appointment Notice, the Purchasers
may by notice to the Seller indicate that, in the light of the fact
that the Seller has not accepted the Draft Net Asset Statement in its
entirety, it wishes the Reporting Accountants to consider matters
relating to the Draft Net Asset Statement in addition to those
specified in the Seller's Disagreement Notice, such notice stating in
reasonable detail the reasons why and in what respects the Purchaser
believes that the Draft Net Asset Statement should be altered (the
"Purchaser's Disagreement Notice").
3.5 The Reporting Accountants shall be engaged jointly by the Seller and
the Purchasers on the terms set out in this paragraph 3 and otherwise
on such terms as shall be agreed; provided that neither the Seller not
the Purchasers shall unreasonably (having regard, inter alia, to the
provisions of this paragraph 3) refuse its agreement to terms proposed
by the Reporting Accountants or by the other party. If the terms of
engagement of the Reporting Accountants have not been settled within 45
days of their identity having been determined (or such longer period as
the Seller and the Purchasers may agree) then, unless the Seller or the
Purchasers are unreasonably refusing its agreement to those terms,
those accountants shall be deemed never to have become the Reporting
Accountants and new Reporting Accountants shall be selected in
accordance with the provisions of paragraph 3.3 above.
3.6 Except to the extent that the Seller and the Purchasers agree
otherwise, the Reporting Accountants shall determine their own
procedure but:
3.6.1 apart from procedural matters and as otherwise set out in this
Agreement shall determine only:
(i) whether any of the arguments for an alteration to the
Draft Net Asset Statement put forward in the
Purchasers' Disagreement Notice or the Seller's
Disagreement Notice is correct in whole or in part;
and
(ii) if so, what alterations should be made to the Draft
Net Asset Statement in order to correct the relevant
inaccuracy in it;
3.6.2 shall apply the principles set out in paragraph 2 of Schedule
6;
3.6.3 shall make their determination pursuant to paragraph 3.6.1
above as soon as is reasonably practicable;
3.6.4 the procedure of the Reporting Accountants shall:
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(i) give the Seller and Purchasers a reasonable
opportunity to make written and oral representations
to them;
(ii) require that each party supply the other with a copy
of any written representations at the same time as
they are made to the Reporting Accountants;
(iii) permit each party to be present while oral
submissions are being made by the other party; and
3.6.5 for the avoidance of doubt, the Reporting Accountants shall
not be entitled to determine the scope of their own
jurisdiction.
3.7 The determination of the Reporting Accountants pursuant to paragraph
3.6.1 shall:
3.7.1 be made in writing;
3.7.2 be made available to the Seller and the Purchasers at the same
time; and
3.7.3 unless otherwise agreed by the Seller and the Purchasers
include reasons for each relevant determination.
3.8 The Reporting Accountants shall act as experts and not as arbitrators
and their determination of any matter falling within their jurisdiction
shall be final and binding on the Seller and the Purchasers save in the
event of manifest error (when the relevant part of their determination
shall be void and the matter shall be remitted to the Reporting
Accountants for correction). In particular, without limitation their
determination shall be deemed to be incorporated into the Draft Net
Asset Statement.
3.9 The expenses (including VAT) of the Reporting Accountants shall be
borne as they shall direct at the time they make any determination
under paragraph 3.6.1 or, failing such direction, in two equal
proportions between the Purchasers (acting together), on the one hand,
and the Seller, on the other.
3.10 The Seller and the Purchasers (acting together) shall co-operate with
the Reporting Accountants and comply with their reasonable requests
made in connection with the carrying out of their duties under this
Agreement. In particular, without limitation, each party shall keep
up-to-date and, subject to reasonable notice and the request itself
being unreasonable, make available to the other parties
representatives, the other parties accountants and the Reporting
Accountants all books and records relating to the Group during normal
office hours during the period from the appointment of the Reporting
Accountants down to the making of the relevant determination.
3.11 Nothing in this paragraph 3 shall entitle a party or the Reporting
Accountants access to any information or document which is protected by
legal professional privilege, or which has been prepared by the other
party or its accountants and other professional advisers with a view to
assessing the merits of any claim or argument.
3.12 Each party and the Reporting Accountants shall, and shall procure that
its accountants and other advisers shall, keep all information and
documents provided to them pursuant to this paragraph 3 confidential
and shall not use the same for any purpose, except for disclosure or
use in connection with the preparation of the Draft Net Asset
Statement, the proceedings of the Reporting Accountants or another
matter arising out of this Agreement or in defending any claim or
argument or alleged claim or argument relating to this Agreement or its
subject matter.
3.13 The provisions of this paragraph 3 (and in particular paragraph 3.8)
are without prejudice to the provisions of Clause 11.5 which provides
for a further adjustment between the Seller and the Purchasers in
relation to slow moving stock.
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Schedule 7
Warranties given under Clause 8
1 Corporate Information
1.1 The Shares and the Group Companies
1.1.1 The Seller:
(i) is the sole legal and beneficial owner of the Shares;
and
(ii) has the right to exercise all voting and other rights
over the Shares.
1.1.2 The Shares comprise the whole of the issued share capital of
the Companies, have been properly and validly issued and are
each fully paid.
1.1.3 The shareholders specified in paragraphs 1 to 9 of Part 2 of
Schedule 2:
(i) are the sole legal and beneficial owners of the
shares in the Subsidiaries; and
(ii) have the right to exercise all voting and other
rights over such shares.
1.1.4 The details of the shares in the Subsidiaries specified in
Schedule 2 comprise the whole of the issued share capital of
the Subsidiaries and such shares have been properly and
validly issued and each are fully paid.
1.1.5 No claim has been made by any person to be entitled to the
benefit of any Encumbrance and no person has the right
(whether exercisable now or in the future and whether
contingent or not) to call for the conversion, issue,
registration, sale or transfer, amortisation or repayment of
any share capital, loan capital or any other security giving
rise to a right over, or an interest in, the capital of any
Group Company under any option, agreement or other arrangement
(including conversion rights and rights of pre-emption).
1.1.6 There are no Encumbrances on over or affecting any of the
shares in any Group Company or any unissued shares, debentures
or other securities of any Group Company.
1.1.7 All consents for the transfer of the Shares have been obtained
or will be obtained by Closing.
1.1.8 The Shares and the shares in the Subsidiaries have not been
and are not listed on any stock exchange or regulated market.
1.1.9 No Group Company:
(i) has any interest in, or has agreed to acquire, any
share capital or other security referred to in
paragraph 1.1.5 of this Schedule 7 of any other
company (wherever incorporated) other than (a) the
Subsidiaries set out in Part 2 of Schedule 2 or (b)
an interest of less than 0.1 per cent in companies
listed on any stock exchange or in regulated
investment funds which, in either case, the Group
Company holds for cash management purposes;
(ii) has any branch, place of business, substantial
assets, division, establishment or operations outside
the jurisdiction in which it is incorporated or
(iii) has agreed to become a subsidiary of any other body
corporate or under the control of any group or bodies
corporate or consortium.
-84-
1.1.10 The particulars contained in Schedules 2-4 are true, accurate,
complete and not misleading.
1.1.11 Since 1 March 2000, none of Hydron, Hydron Investments Limited
or BE Inc has:
(i) repaid, redeemed or purchased any of its own shares,
or otherwise reduced its issued share capital or any
class of it, or capitalised, 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 or
description or passed any resolution to do so, or
agreed to do any of the above;
(ii) directly or indirectly provided any financial
assistance for the purpose of the acquisition of
shares in such Group Company or any holding company
of the Group Company or for the purpose of reducing
or discharging any liability incurred in such an
acquisition.
1.2 Constitutional Documents, Corporate registers and minute books
1.2.1 The constitutional documents referred to in the Disclosure
Letter are true, complete and accurate copies of the
constitutional documents of the Group Companies and, so far as
the Seller is aware, there have not been and are not any
breaches by any Group Company of its constitutional documents
which would have a material effect on the business of the
Group.
1.2.2 The registers and minute books required to be maintained by
each Group Company under the law of the jurisdiction of its
incorporation, other than the register of members:
(i) are up-to-date;
(ii) are maintained in accordance with applicable law; and
(iii) contain complete records of all matters required to
be dealt with in such books and records,
in each case in all material respects.
1.2.3 The registers of members required to be maintained by each
Group Company under the law of the jurisdiction of its
incorporation:
(i) are up-to-date;
(ii) are maintained in accordance with applicable law; and
(iii) contain complete records of all matters required to
be dealt with in such books and records.
1.2.4 All registers and books referred to in paragraphs 1.2.2 and
1.2.3 are in the possession (or under the control) of the
relevant Group Company and so far as the Seller is aware no
notice or allegation that any of such books and records is
incorrect or should be rectified has been received.
1.2.5 All material filings, publications, registrations and other
formalities required by applicable law to be delivered or made
by the Group Companies to company registries in each relevant
jurisdiction have been duly delivered or made on a timely
basis.
2 Accounts and sales figures
2.1 Latest Accounts
2.1.1 The Accounts have been prepared:
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(i) in accordance with applicable law and with the
accounting principles, standards and practices
generally accepted at the Accounts Date in the
country of incorporation of the relevant Group
Company;
(ii) on a basis consistent with the practices and policies
adopted in preparing the audited accounts of such
Group Companies for the previous financial year; and
(iii) so as to give a true and fair view of the assets,
liabilities and state of affairs of Hydron and Hydron
Investments Limited.
2.1.2 Without prejudice to the foregoing, the Accounts:
(i) make full provision for all actual liabilities;
(ii) make proper provision (or note in accordance with
good accountancy practice) for all contingent
liabilities which would normally be provided for or
noted, obsolete or slow moving stock and
depreciation;
(iii) make adequate provision for all bad and doubtful
debts; and
(iv) do not include (and the profits of the relevant Group
Company for the period have not been affected to a
material extent by) any unusual, exceptional or
non-recurring items of income or expenditure.
2.2 Management Accounts and the 31 October accounts
The Management Accounts and the 31 October 2001 accounts attached to
the Disclosure Letter have been prepared in good faith, on a basis
consistent with the accounting records, adopting fundamental accounting
concepts, accounting bases, accounting policies, principles, standards
and practices used in preparing the Accounts, and in all material
respects state the assets, level of turnover, operating profit and
losses and liabilities of the relevant Group Company as at that date
and for that period and (except as expressly disclosed in them) do not
include any unusual, exceptional or non-recurring item of income or
expenditure.
2.3 Sales Figures
2.3.1 The Sales Figures have been prepared in good faith, on a basis
consistent with the practices used by the Companies in
preparing such figures, and present in all material respects
the figures for the period to which they relate.
2.3.2 For the year ended 31 December 2001, the aggregate value of
the Group's sales of PC Products are not less than
'L'23,200,000 and the aggregate value of the Group's sales
of Non-PC Products (excluding OEM Sales of 'L'500,000 to
the US Purchaser's Group) are not less than 'L'25,900,000.
2.4 Unit Costs
The Unit Costs set out below, are true and accurate, having regard to
their respective methods of preparation:
(i) Proclear Compatibles Toric - 61p on an Absorption
Costing Basis;
(ii) Proclear Compatibles Sphere - 37p on an Absorption
Costing Basis;
(iii) Actifresh 400 - 35p on a Marginal Costing Basis;
(iv) Actisoft 60 - 38p on a Marginal Costing Basis; and
(v) Actitoric - 46p on a Marginal Costing Basis.
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2.5 Basis of Valuation
Since March 2000 the basis of valuation for stock-in-trade,
work-in-progress and of depreciation of fixed assets adopted for the
purpose of the Accounts and each of the accounting periods (or relevant
part of those periods) of the relevant Group Company has, in all
material respects, remained consistent.
2.6 Books of account
Since March 2000 all accounts, books, ledgers, financial and other
necessary records of whatsoever kind of the Group have been accurately
maintained, are in the possession of the Group and contain true and
accurate records of all matters required to be entered in them by all
applicable legislation and so far as the Seller is aware, no notice or
allegation that any of them is incorrect or should be rectified has
been received.
2.7 In each Group Company there are no material third party customer back
orders of products.
2.8 Within the last 12 months, no Group Company has knowingly sold any
private label products to any mail order business.
2.9 Excluding with respect to distributor arrangements terminable with
three months notice or less, the relevant member of the Group offers
the same price for each product and substantially the same other
material terms to all of its distributors.
3 Financial Obligations
3.1 Loans
Details of all third party loans outstanding or available to any Group
Company are given in the Disclosure Letter and, so far as the Seller is
aware, there are no circumstances whereby the continuation of any such
loans (disregarding any such loans which are to be repaid by the Group
Companies on Closing as agreed between the Seller and the Purchaser)
might be prejudiced or affected as a result of a transaction effected
by this Agreement.
3.2 Financial facilities
The Seller has disclosed full details relating to all debentures,
acceptance lines, overdrafts, loans or other financial facilities
outstanding or available to the Group and all Encumbrances to which any
asset of the Group is subject.
3.3 Grants
Since March 2000, no grants have been made to, or applied for by, the
Group, and all outstanding applications for any such grant, have been
Disclosed.
3.4 Guarantees
There is no outstanding guarantee, indemnity, suretyship or security or
any other obligation (whatever called) to pay, purchase or provide
funds for the payment of or as an indemnity against the consequence of
default in the payment of any indebtedness given:
3.4.1 by any Group Company; or
3.4.2 for the benefit of any Group Company.
3.5 Payment of obligations
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Since December 2000 there has been no material delay by any member of
the Group in the payment of any material obligation due for payment.
4 Assets
4.1 Properties
4.1.1 Details of all land, premises and buildings owned, occupied or
otherwise used by the Group Companies for the purposes of the
current business of the Group are set out in Schedule 3 and
such details are true and accurate.
4.1.2 There is no subsisting breach and no non-observance of any
covenant, condition or agreement contained in the lease under
which a Group Company holds its interest in a Property, on the
part of the Group Company and so far as the Seller is aware
there is no such subsisting breach or non-observance on the
part of any relevant landlord which would materially adversely
affect the current business of the Group.
4.1.3 There is no outstanding claim, action, demand, notice or
dispute involving any Group Company and any third party as to
the ownership, occupation or use of any Property which would,
if implemented or enforced, have a material adverse effect on
the current business of the Group carried out at the
Properties and so far as the Seller is aware none are
anticipated.
4.1.4 There is no outstanding notice or dispute as to any
contravention of the relevant planning legislation or
regulations or any alleged breach of planning legislation or
regulations in relation to each Property which would, if
implemented or enforced, have a material adverse effect on the
current business of the Group carried out at the Properties
and so far as the Seller is aware none are anticipated.
4.1.5 There is no right for the landlord to terminate the lease
before the expiry of the contractual term other than by breach
of the lease by the lessee or an event of insolvency arising
in respect of the lessee.
4.1.6 All steps in rent reviews have been duly taken and no rent
reviews are currently under negotiation or the subject of a
reference to an expert or arbitrator in the courts.
4.1.7 The Group Companies have no liability (whether actual,
contingent or otherwise) as landlord, tenant, assignee,
guarantor or covenantor arising from or relating to any
estate, interest or right in any land, premises or buildings
other than the Properties.
4.1.8 The Group Company in which each Property is vested is in
possession of such Property and has a good and marketable
title and is solely legally and beneficially entitled to it.
4.1.9 All documents of title necessary to prove good and marketable
title to the Properties are in the possession of the Group or
are unconditionally held to its order. Where necessary all
title documents necessary to prove good and marketable title
are fully stamped with ad valorem stamp duty or other
documents tax and a produced document stamp.
4.1.10 There are appurtenant to each Property all rights, easements
and utilities necessary for the use and enjoyment of the
Property for the purposes of the business of the Group or (if
there are no such rights and easements) none is required.
4.1.11 There are no mortgages, charges or liens, legal or equitable,
specific or floating affecting any of the Properties.
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4.1.12 There are no agreements for sale or lease, estate contracts,
options, rights of pre-emption or similar matters affecting
any of the Properties, the provisions of which remain to be
observed or performed and the existence of which would have a
material adverse impact on the current business of the Group.
4.1.13 There are no covenants, restrictions, stipulations, easements
or other encumbrances which materially adversely affect the
use of the Properties for the purposes of the current business
of the Group.
4.1.14 No-one is in adverse possession of any of the Properties and
so far as the Seller is aware has acquired or is acquiring any
adverse rights affecting any of the Properties.
4.1.15 The Seller has not received notice from the relevant planning
authority and is not aware that it is in breach of the lawful
use under the planning, zoning or equivalent legislation
relating to that Property.
4.1.16 There is no outstanding order, notice or other requirement of
any local or other authority that materially adversely affects
the use of any of the Properties for the purposes of the
current business of the Group or involves any material
expenditure in compliance with it and so far as the Seller is
aware there are no other circumstances which may result in any
such order or notice being made or served.
4.2 Ownership of Assets
All material assets required to conduct the Eyecare Business included
in the Accounts or acquired by any of the Group Companies since the
Accounts Date, other than the Properties, the Intellectual Property and
any assets disposed of or realised in the ordinary course of business,
and excepting rights and retention of title arrangements arising by
operation of law in the ordinary course of business:
4.2.1 are legally and beneficially owned by the Group Companies;
4.2.2 are, where capable of possession, in the possession or under
the control of the relevant Group Company;
4.2.3 none of such assets is the subject of an Encumbrance or the
subject of any hire or hire purchase agreement, leasing
agreement, agreement for payment on deferred terms, factoring
arrangement, conditional sale or credit agreement.
4.3 Condition of assets
The material plant and machinery (including fixed plant and machinery)
and all vehicles and office and other equipment shown in the Accounts
or acquired since the Accounts Date or otherwise used in connection
with the business of the Group which have not been disposed of in the
ordinary course of business are in substantially good repair and
condition.
4.4 Rental payments
Rental payable by any member of the Group under any leasing,
hire-purchase or other similar agreement to which it is a party have
not been and are not likely to be increased other than in accordance
with their terms.
5 Intellectual Property and Information Technology
5.1 Ownership and rights
5.1.1 Part 3 of Schedule 4 contains a complete list of all
registrations and applications for registrations in respect of
all Patent Rights, Trade Marks and Registered Designs owned by
the Group.
5.1.2 The Group is the sole beneficial owner of all Group IP
(subject to Licences-In and Licences-Out).
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5.2 Enforcement
5.2.1 So far as the Seller is aware, none of the Registered IP is
the subject of outstanding or threatened disputes, claims or
proceedings for:
(i) cancellation,
(ii) revocation,
(iii) opposition,
(iv) interference,
(v) rectification; or
(vi) contested ownership.
5.2.2 No Group IP has been licensed in writing to a third party for
the purpose of any business which is the same as the Eyecare
Business except under the Licences-Out.
5.2.3 So far as the Seller is aware, the Know-How owned by the Group
has been kept secret and confidential and has not been
disclosed to third parties except under terms of confidence in
the normal course of business.
5.2.4 All renewal fees required to be paid up to the date of this
Agreement in order to maintain all Registered IP have been
paid in a timely manner save in respect of any Registered IP
which has not been exploited in the course of the Eyecare
Business within the last 12 months.
5.3 IP Agreements
5.3.1 Parts 1 and 2 of Schedule 4 respectively contain particulars
of all Licences-In and Licences-Out (other than standard
shrink wrap software licences) relating to the Eyecare
Business. So far as the Seller is aware, none of the
Licences-In or Licences-Out have been the subject of material
breach or default by any party nor as far as the Seller is
aware are there any outstanding disputes, claims or
proceedings arising out of or relating to any of them.
5.3.2 Except as disclosed by the Seller, none of the Group IP is
subject to any Encumbrance (excluding floating charges or any
Encumbrance which has been fully discharged as at the date of
this Agreement).
5.3.3 The Seller has disclosed all existing financial obligations
contained in any Licences-In or Licences-Out that involve any
member of the Group with expenditure post Closing in excess of
'L'50,000. For the purposes of this warranty, disclosure
of a Licence-In or Licence-Out shall be deemed to be
disclosure of all such financial obligations contained in such
Licence-In or Licence-Out.
5.4 Infringement
5.4.1 No proceedings have been served on any of the Group Companies
alleging that any product sold, or any research conducted, in
the course of the Eyecare Business as at the date of this
Agreement, infringes any Intellectual Property owned by a
third party nor has any Group Company received written notice
alleging that any product sold, or any research conducted, in
the course of the Eyecare Business as at the date of this
Agreement, infringes any Intellectual Property owned by a
third party.
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5.4.2 So far as the Seller is aware, there is no current
infringement by any third party of any Group IP nor, so far as
the Seller is aware, has there been any infringement by any
third party of any Group IP within the 24 months prior to the
date of this Agreement.
5.5 Licensed Rights
5.5.1 Biocompatibles Limited is the sole legal and beneficial owner
of the Licensed Patents and the Licensed Trade Marks and they
are not subject to any Encumbrance (excluding floating charges
or any Encumbrance which has been fully discharged as at the
date of this Agreement).
5.5.2 Save as set out in the Licence Agreements, Biocompatibles
Limited has not, as at the date of this Agreement, granted
exclusive or non-exclusive licensed rights to any third party
under the Licensed Patents and the Trade Marks in respect of
Products in the Field (as the term "Products" and "Field" are
used in the Licence Agreements).
5.5.3 So far as the Seller is aware, as at the date of this
Agreement there are no current infringements by any third
party of any of the Licensed Patents or the Licensed Trade
Marks in respect of the Products in the Field nor, so far as
the Seller is aware, has there been any infringement by any
third party of any of the Licensed Patents or the Licensed
Trade Marks in respect of the Products in the Field within the
24 months prior to the date of this Agreement.
5.5.4 When taken together, Schedules 1 of the Licence Agreements
comprise a complete list of Patent Rights owned by
Biocompatibles Limited under which the Group Companies have
been licensed by Biocompatibles Limited to research, develop,
manufacture, use, supply, offer to supply, sell, dispose,
import, keep and otherwise exploit Products in the Field in
the manner in which those acts have been carried out by the
Group Companies in the 12 months prior to the date of this
Agreement.
5.5.5 There is no Know-How owned by Biocompatibles Limited under
which the Group Companies are required to be licensed by
Biocompatibles Limited to research, develop, manufacture, use,
supply, offer to supply, sell, dispose, import, keep and
otherwise exploit Products in the Field in the manner in which
those acts have been carried out by the Group Companies in the
12 months prior to the date of this Agreement.
5.5.6 So far as the Seller is aware, none of the Licensed Patents is
the subject of outstanding or threatened disputes, claims or
proceedings for:
(i) cancellation,
(ii) revocation,
(iii) opposition,
(iv) interference,
(v) rectification; or
(vi) contested ownership
(in each case, insofar as any of the above are relevant to the
Products or the Field).
5.6 The terms agreed between (1) Hydron Limited and (2) G. Galley, A.
Galley, A. Morland, B. Beavis and I. Atkinson (the "Patent Owners") in
a letter dated 1 July 1998 constituted no more than the undertaking
from the Patent Owners which is referred to in the letter agreement
between Hydron Limited and the Patent Owners dated 13 November 2001 and
defined in the 13 November 2001 letter as the "Undertaking".
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5.7 The Seller has not within the last two years:
(i) reported any incident involving Products to the
Medical Devices Agency or any other regulatory body
of competent jurisdiction;
(ii) received any notice from any third party which would
require the Seller to make a report as set out in (i)
above.
5.8 Information Technology
5.8.1 In the 12 months prior to the date of this Agreement, there
have been no failures or breakdowns of any Information
Technology (including, without limitation, by reason of lack
of Year 2000 compliance as defined in the document entitled A
Definition of Year 2000 Conformity Requirements issued by the
British Standards Institution) which have caused any
substantial disruption or interruption in or to the business
of the Group.
5.8.2 In the 6 months prior to the date of this Agreement, there has
been no substantial disruption or interruption in or to the
business of the Group caused by failure of Information
Technology used in countries in which the euro is legal tender
to operate in all respects using, recording, converting and
accounting for (including round up and down and calculating,
accounting for and recording compensatory payments) monetary
or currency values denominated in the euro in the same manner
as it does for any European currency.
5.8.3 All Information Technology that is not owned by a Group
Company is listed in the Disclosure Letter, save for standard
business software and software the subject of shrink-wrap
licences.
5.8.4 So far as the Seller is aware, none of the IT Contracts have
been the subject of material breach or default by any party
nor as far as the Seller is aware are there any outstanding
disputes, claims or proceedings arising out of or relating to
any of them.
5.8.5 So far as the Seller is aware the present capacity of the
Information Technology is sufficient in order to satisfy the
requirements of the Group with regard to data processing and
communications as at Closing.
5.8.6 The Group has in place adequate systems to enable its business
to continue in the event of an Information Technology failure.
5.8.7 The Seller has disclosed all existing financial obligations
contained in any IT Contracts that involve any member of the
Group with expenditure post Closing in excess of 'L'50,000.
For the purposes of this warranty, disclosure of an IT
Contract shall be deemed to be disclosure of all such
financial obligations contained in such IT Contract.
5.8.8 All Information Technology is either owned, leased or licensed
by Group Companies in such a way that such ownership, lease or
licensed rights shall not be materially adversely affected by
the transaction contemplated herein.
5.9 Data Protection
5.9.1 Insofar as they are required to do so under applicable law,
the Group Companies have registered or applied to notify
themselves under the Data Protection Act 1998 (or its
equivalent in any relevant jurisdiction) in respect of all
registrable personal data held by them.
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5.9.2 The details contained in any such notifications are correct
for the purpose(s) for which the Group Companies process
personal data (as that term is defined in the Data Protection
Act 1998, or its equivalent in any relevant jurisdiction).
5.9.3 All personal data held by the Group has been processed in
accordance with the data protection principles and no
proceedings have been served on any of the Group Companies
alleging or claiming compensation for inaccuracy, loss or
unauthorised disclosure of personal data by a Group Company
nor has any Group Company received written notice alleging or
claiming compensation for inaccuracy, loss or unauthorised
disclosure of personal data by a Group Company.
5.9.4 No enforcement, deregistration or transfer prohibition notices
or any other nature of notice under the Data Protection Act
has been served on the Group (nor has any threat been made by
a competent authority to serve such a notice), nor is there
any outstanding appeal against such notices.
5.9.5 There are no unsatisfied requests to the Group made by data
subjects in respect of personal data held by the Group, nor
any outstanding applications for rectification or erasure of
personal data.
6 Contracts
6.1 Contracts
All contracts to which any Group Company is a party with an outstanding
liability in excess of 'L'50,000 have been Disclosed and no Group
Company is a party to or subject to any contract, transaction,
arrangement, understanding or obligation which is material in relation
to the business of the Group and which:
6.1.1 is not in the ordinary course of business;
6.1.2 is not on an arm's length basis;
6.1.3 is of a long term nature;
6.1.4 restricts its freedom to carry on its business in any part of
the world in such manner as it thinks fit so as to have a
material adverse effect on the Group;
6.1.5 contains unusual or onerous terms or conditions;
6.1.6 involves the supply of goods and services, the aggregate sales
value of which (exclusive of VAT) will be more than 5 per cent
of turnover of the business of the Group (exclusive of VAT)
for the 12 months prior to the date of this Agreement;
6.1.7 is known by the Seller or by any Group Company to be likely to
result in a loss to the relevant Group Company on completion
of performance; or
6.1.8 cannot readily be fulfilled or performed by any Group Company
on time and without undue or unusual expenditure of money and
effort.
6.2 Joint Ventures etc.
No Group Company is, or has agreed to become, a member of any joint
venture, consortium, partnership or other unincorporated association
(other than a recognised trade association in relation to which the
Group Company has no liability or obligation except for the payment of
annual subscription or membership fees).
6.3 Agreements with Connected Parties
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6.3.1 There are, and have in the 12 months prior to signing this
Agreement been, no existing contracts, arrangements,
indebtedness or other liability (actual or contingent)
material to the business of the Group between, on the one
hand, any Group Company and, on the other hand, the Seller or
any other member of the Seller's Group other than on normal
commercial terms in the ordinary course of business, nor any
guarantee or security for such indebtedness or liability.
6.3.2 So far as the Seller is aware, no Group Company is party to
any contract with any current or former employee or current or
former director or any current or former consultant of any
such Group Company or any person connected (as defined by
applicable law in the relevant jurisdiction) with any of such
persons, or in which any such person as aforesaid is
interested (whether directly or indirectly), other than on
normal commercial terms in the ordinary course of business.
6.4 Benefits
No Connected Person is entitled to or has claimed entitlement to any
remuneration, compensation or other financial benefit from any Group
Company other than on normal commercial terms in the ordinary course of
business.
6.5 Compliance with Agreements
6.5.1 All the contracts material to the business of the Group are
valid and binding obligations of the parties thereto and the
terms thereof have been complied with in all material respects
by the relevant Group Company and by any other party to such
contracts and so far as the Seller is aware there are no
circumstances likely to give rise to a default by the relevant
Group Company or so far as the Seller is aware by the other
parties under any such contract. A Group Company is party to
all of the contracts that are material to the business of the
Group as it is currently being conducted.
6.5.2 No Group Company is party to any contract that does not relate
to the Eyecare Business.
6.5.3 No notice of termination or of intention to terminate has been
received in respect of any such contracts.
6.6 Agency and distribution agreements
Save as listed in the Disclosure Letter, no Group Company is party to
any subsisting agency or distributorship agreement.
6.7 Effect of Transaction
6.7.1 Nothing done in compliance with the terms of this Agreement
(including the acquisition of the Shares by the Purchasers)
will:
(i) cause any Group Company to lose the benefit of any
right or privilege it presently enjoys or cause any
person who normally does business with any relevant
Group Company to be legally entitled not to continue
to do so on substantially the same basis as
previously;
(ii) relieve any person of any obligation to any Group
Company or legally entitle any person to determine
any such obligation or any material right or benefit
enjoyed by any Group Company;
(iii) cause any person to be legally entitled to exercise
any contractual right or receive any benefit to which
it would not otherwise be entitled.
6.7.2 So far as the Seller is aware, no change in the existing
management of the Group will:
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(i) cause any Group Company to lose the benefit of any
material right or privilege it presently enjoys or
cause any person who normally does business with any
relevant Group Company to be legally entitled not to
continue to do so on substantially the same basis as
previously;
(ii) relieve any person of any material obligation to any
Group Company or legally entitle any person to
determine any such obligation or any material right
or benefit enjoyed by any Group Company;
(iii) cause any person to be legally entitled to exercise
any material contractual right or receive any
material benefit to which it would not otherwise be
entitled.
6.8 Delegation of powers
There are no powers of attorney given by any Group Company other than
to the holder of an Encumbrance (which has been Disclosed) solely to
facilitate its enforcement nor any other authority (express, implied or
ostensible) given by any Group Company to any person to enter into any
contract or commitment which are in force other than any authority of
employees to enter into routine trading contracts in the normal course
of their duties.
7 Employees and Employee Benefits
7.1 Employees and Terms of Employment
7.1.1 The Disclosure Letter contains details, in relation to each
Group Company, of:
(i) the total number of Relevant Employees;
(ii) the name, salary and other benefits, grade and age of
each Relevant Employee on a country by country basis;
(iii) specimen terms and conditions of each grade or
category of Relevant Employee; and
(iv) the current terms and conditions of each Senior
Employee, whose personal contracts have also been
listed in the Disclosure Letter.
7.2 Termination of Employment
7.2.1 In the three months prior to the date hereof, no Senior
Employee has given or received notice terminating his or her
employment.
7.2.2 In the three months prior to the date hereof, there have been
no proposals to terminate the employment of:
(i) any Senior Employee;
(ii) more than such number of Relevant Employees as would
trigger a legal obligation in the relevant
jurisdiction to inform and consult trade unions or
employee representatives or otherwise more than 20
Relevant Employees in any one location; or
(iii) any consultant of any Group Company.
7.2.3 So far as the Seller is aware, no liability which remains
undischarged has been or may be incurred by any Group Company
for:
(i) material breach of any contract of employment with
any Senior Employee;
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(ii) material breach of any other common law right or
statutory employment right;
(iii) failure to comply with any order for the
reinstatement or re-engagement of any former
employee.
7.2.4 So far as the Seller is aware there is no litigation
arbitration or administrative action pending in respect of any
of the matters mentioned in 7.2.3 and so far as the Seller is
aware there are no circumstances likely to lead to any such
litigation arbitration or administrative action.
7.2.5 The Relevant Employees are all employed by a member of the
Group. The Relevant Employees are all the employees required
to carry on the business of the Group as currently carried
out. There are no consultants other than those whose terms
have been Disclosed.
7.3 Bonus or other Profit-related Schemes
The Disclosure Letter refers to the rules (if applicable) relating to
all share incentive, share option, profit sharing, bonus or other
incentive arrangements for or affecting any Relevant Employees of the
Group Companies in the last 12 months.
7.4 Pensions
7.4.1 UK Pensions
(i) The UK Pension Schemes are the only schemes in the UK
to which Hydron or any of the Group Companies makes
or could become liable to make payments for providing
retirement, death, disability or life assurance
benefits for current or past directors or employees
of Hydron. No proposal has been announced to
establish any other scheme for providing any such
benefits and so far as the Seller is aware, neither
Hydron nor any of the Group Companies provides or has
promised to provide any such benefits in the UK
except under the UK Pension Schemes.
(ii) So far as the Seller is aware, no discretion has been
exercised to admit an employee of Hydron to
membership of the UK Pension Schemes who would not
otherwise be eligible and no discretion has been
exercised to provide a benefit to any employee of
Hydron other than under the UK Pension Schemes.
(iii) So far as the Seller is aware, Hydron does not
provide any ex gratia pension for any person employed
by Hydron.
(iv) The UK Pension Schemes are exempt approved schemes
within the meaning of Chapter I Part XIV of the
Income and Corporation Taxes Act 1988 and are schemes
in respect of which an application for Board of
Inland Revenue approval has been made and has not
been withdrawn or refused and the Board of Inland
Revenue have not given notice to the applicant that
they believe the application has been dropped.
Members of the Hydron Pension Scheme are
contracted-out of the State Earnings Related Pension
Scheme. Members of the Biocompatibles Retirement Plan
are not contracted-out of the State Earnings Related
Pension Scheme.
(v) So far as the Seller is aware, the UK Pension Schemes
have been administered in accordance with the
Pensions Act 1995 and all applicable laws (including
Article 141 EC), regulations and requirements of any
competent governmental body or regulatory authority
and the trusts and rules of the UK Pension Schemes.
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(vi) There are attached to the Disclosure Letter copies of
all material documents containing the provisions
currently governing the UK Pension Schemes including,
for the avoidance of doubt, all the currently
applicable trust deeds and rules and all currently
applicable explanatory booklets and announcements.
(vii) So far as the Seller is aware, death in service
benefits payable under the terms of the Hydron
Pension Scheme are insured and each employee of
Hydron who is a member of the Hydron Pension Scheme
has been covered for such insurance by an insurance
company as disclosed in the Disclosure Letter.
(viii) The Seller has notified the Purchasers in the
Disclosure Letter of the rate at which contributions
to the UK Pension Schemes are being paid. All amounts
due to the UK Pension Schemes have been paid or will
be paid before Closing.
(ix) The following documents are referred to in the
Disclosure Letter:
(a) the actuary's report on the latest finalised
actuarial valuation for the UK Pension
Schemes;
(b) details of members of the UK Pension
Schemes;
(c) [not used];
(d) scheme accounts and trustee reports for the
last two years for the UK Pension Schemes;
(e) evidence of Inland Revenue approval for the
Hydron Pension Scheme;
(f) contracting-out certificate for the Hydron
Pension Scheme;
(x) So far as the Seller is aware, the UK Pension Schemes
are schemes in respect of which all actuarial,
consultancy, legal and other fees, charges or
expenses which have been invoiced and are due from
Hydron or the Group Companies have been paid or will
be paid before Closing.
(xi) The Hydron Pension Scheme has no investment in
employer-related assets as defined in Section 40 of
the Pensions Act 1995.
(xii) So far as the Seller is aware, no claim (other than
routine claims for benefits) has been threatened or
made or is pending or litigation commenced against
Hydron or the trustees or administrator of the Hydron
Pension Scheme (or any other person whom Hydron is or
may be liable to indemnify or compensate) by any
employee of Hydron in respect of any matter arising
out of or in connection with the UK Pension Schemes.
So far as the Seller is aware there are no
circumstances which may give rise to any such claim
or litigation. So far as the Seller is aware, there
are no unresolved disputes by any employee of Hydron
under the UK Pension Schemes.
(xiii) So far as the Seller is aware, the Hydron Pension
Scheme has not been the subject of any report of
wrongdoing or irregularities to the Occupational
Pensions Regulatory Authority which could result in
the imposition of fines or penalties.
(xiv) The Seller confirms that the Companies have complied
in all respects with any obligations regarding
designating a stakeholder arrangement for their
employees.
7.4.2 Pensions (Overseas)
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So far as the Seller is aware all pension schemes operated by
the Group in respect of overseas employees are money purchase
schemes in respect of which the Group has no liability save in
respect of regular contributions and expenses and costs
associated with the administration of such schemes.
7.5 Industrial Disputes
No Group Company is involved in or has received notice threatening any
strike or industrial or trade dispute whatsoever or any other dispute
or negotiation regarding a claim of material importance with any trade
union or other body representing employees or former employees of any
Group Company.
8 Legal Compliance
8.1 Licences and Consents
The Group has obtained all material licences, consents, authorisations,
orders, warrants, confirmations, permissions, certificates, approvals,
registrations and authorities (together the "Licences") for the proper
and effective carrying on of the business of the Group in the manner in
which it is currently carried on, and such Licences are in force and
are being complied with in all material respects. The Seller is not
aware of any reason why any of them should be suspended, modified or
revoked. So far as the Seller is aware, there are no factors that might
in any way prejudice the continuance or renewal of any of such Licences
and no member of the Group is restricted by contract from carrying on
its business as it is currently being conducted in any part of the
world.
8.2 Compliance with Laws
8.2.1 No Group Company has been notified of or has otherwise been
made aware of any investigation disciplinary proceeding or
enquiry by, or order, decree, decision or judgment of, any
court, tribunal, arbitrator, governmental agency or regulatory
body outstanding against any Group Company or any person for
whose acts or defaults it may be vicariously liable which will
have a material adverse effect upon the business of the Group.
8.2.2 No Group Company has received any written notice during the
past 6 months from any court, tribunal, arbitrator,
governmental agency or regulatory body with respect to a
violation and/or failure to comply with any such applicable
law, regulation, or requiring it to take or omit any action
which in any case would have a material adverse effect on the
business of the Group.
8.3 Legislation
No Group Company is in breach of nor has it received notice of and is
not otherwise aware of any allegation of breach of any material
requirements of any legislation which is applicable to it.
9 Environment
9.1 For the purposes of this paragraph 9:
"Environment" means all or any of the following media (alone or in
combination): air (including the air within buildings, water (including
surface water, groundwater and water in drains or sewers), land
(including subsurface strata), wetlands and any living organisms
(including man) supported by these media;
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"Environmental Authority" means any person or legal entity (including
any local, municipal, state, federal, provincial or national
government, government department or government agency or any court of
law or tribunal) having jurisdiction to determine any matter arising
under or relating to Environmental Law;
"Environmental Law" means any and all laws in any relevant jurisdiction
in force or effect at any time on or prior to the Closing Date, whether
criminal, civil, administrative which have as a purpose or effect the
protection of and/or the prevention, remediation or abatement of harm
to the Environment and/or the provision of remedies in respect of harm
to the Environment excluding laws relating specifically to workers'
health and safety and planning and zoning laws; but including:
(i) European Community or European Union regulations,
directives, decisions;
(ii) constitutional rights and obligations, and to the
extent they have force of law in any relevant
jurisdiction without implementing legislation,
international treaties;
(iii) codified law, statutes and subordinate legislation
including regulations and ordinances;
(iv) codes of practice, circulars and guidance notes which
have force of law;
(v) common law;
(vi) judgments and final and binding decisions, rulings,
notices, orders, injunctions, directions or awards
by, or of, any Environmental Authority;
"Environmental Permit" means any permit, licence, authorisation,
permission, consent registration or other approval required under
Environmental Law for the operation of the business of any Group
Company as carried on at Closing;
"Hazardous Substances" means any wastes, pollutants, contaminants and
any other natural or artificial substance (whether in the form of a
solid, liquid, gas or vapour) or any electricity, heat, vibration or
noise (including any of the following: asbestos and asbestos-containing
materials, polychlorinated biphenyls (PCBs), oil, petroleum products or
constituents therefrom, flammable materials, explosives, radioactive
materials) which are capable of causing harm or damage to the
Environment;
"Relevant Period" means the period commencing on 9 March 2000 in
relation to Hydron Limited and the Subsidiaries, 23 September 1994 in
relation to Biocompatibles Eyecare Inc. and 14 November 1994 in
relation to Biocompatibles Canada Inc., in each case ending on the
Closing Date.
9.2 Each Group Company is conducting, and during the Relevant Period has
conducted the business of the Group in compliance with Environmental
Law.
9.3 All Environmental Permits:
9.3.1 have been obtained;
9.3.2 are in force; and
9.3.3 have been complied with during the Relevant Period.
9.4 No Group Company is involved in or has received any written notice,
complaint, allegation or demand during the Relevant Period of or
relating to any actual or indicating any potential civil, criminal,
regulatory or administrative action, claim, or investigation relating
to Environmental Law or Environmental Permits and no Group Company is
subject to any final and binding order or judgment given by any
Environmental Authority which has not been satisfied or complied with.
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9.5 No Group Company has received written notice or other written
communication during the Relevant Period that either (i) an
Environmental Authority is intending to revoke, suspend, vary or limit
any Environmental Permit or (ii) any amendment to any Environmental
Permit is required to enable the continued operation of the business of
the Group or any Group Company as carried on at Closing.
9.6 All material reports required during the Relevant Period by an
Environmental Authority under Environmental Laws have been filed.
10 Litigation
10.1 Current Proceedings
No Group Company is involved whether as claimant or defendant or other
party in any claim, legal action, proceeding, suit, litigation,
prosecution, investigation, enquiry or arbitration (other than as
claimant in the collection of debts arising in the ordinary course of
its business) ("Litigation") which is material to the business of the
Group.
10.2 Pending or Threatened Proceedings
So far as the Seller is aware, no such claim, legal action, proceeding,
suit, litigation, prosecution, investigation, enquiry or arbitration is
pending or threatened in writing by or against any Group Company or any
person for whose acts or defaults any Group Company may be vicariously
liable.
10.3 Circumstances likely to lead to claims
So far as the Seller is aware, there are no investigations,
disciplinary proceedings or other circumstances likely to lead to any
such claim or legal action, proceeding, suit, litigation, prosecution,
investigation, enquiry or arbitration.
10.4 Orders and judgments, injunctions etc
No injunction or order for specific performance has been granted
against any Group Company which has not been discharged or fully
complied with and no Group Company is subject to any order or judgment
given by any court, tribunal or governmental agency nor granted any
undertaking arising out of any Litigation which has not been satisfied
or fully complied with.
11 Insurance
11.1 Particulars of Insurances
Summary particulars of the insurances of the Group Companies material
to the business of the Group are contained in the Disclosure Letter to
which summaries of the policies are attached and such summary
particulars and summaries are true and correct.
11.2 Details on Policies
In respect of the insurances referred to in paragraph 11.1 all premiums
have been duly paid to date and such insurances are valid and
enforceable.
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11.3 Insurance Claims
11.3.1 Details of all insurance claims in excess of 'L'25,000 made
during the past two years are contained in the Disclosure
Letter.
11.3.2 No insurance claim in excess of 'L'25,000 is outstanding
and no circumstances exist which are likely to give rise to
any insurance claim.
11.3.3 So far as the Seller is aware, there are no circumstances
which might lead to any liability under the insurance policies
being avoided by the insurers or the premiums being increased.
12 Important Business Issues Since the Accounts Date
Since the Accounts Date:
12.1 there has been no material adverse change in the financial position of
the Group (other than a change affecting or likely to affect all
companies carrying on business in similar countries in which the Group
carries on business);
12.2 the business of the Group has been carried on as a going concern in the
ordinary course, without any interruption or material alteration in its
nature, scope or manner;
12.3 the business of the Group has not been adversely affected by the loss
of any important customer or source of supply. For these purposes, an
important customer means one who purchased more than 'L'100,000
worth of the Group's products in the 12 months immediately preceding
the date of this Agreement or source of supply in relation to the Group
means one which in the 12 months immediately preceding the date of this
Agreement accounted for 5 per cent or more (in the case of a customer)
of the turnover of the Group or (in the case of a source of supply) of
the goods, services or equipment supplied to the Group;
12.4 no Group Company has declared, made or paid any dividend, bonus or
other distribution of capital or income to its members;
12.5 no Group Company has issued or agreed to issue any share capital or any
other security giving rise to a right over its capital;
12.6 no Group Company has redeemed or purchased or agreed to redeem or
purchase any of its share capital;
12.7 no Group Company has acquired or disposed of or agreed to acquire or
dispose of any material assets other than in the ordinary course of
business or assumed or incurred or agreed to assume or incur any
material liabilities (actual or contingent), or made any payment not
reflected in the accounts, or entered into any other transaction,
otherwise than in the ordinary course of business;
12.8 no Group Company has created or agreed to create any Encumbrance or
entered into any factoring arrangement, hire-purchase, conditional sale
or credit sale agreement which has not been disclosed (and there has
been no default by any Group Company in the performance or observance
of any of the provisions of any such disclosed Encumbrance, arrangement
or agreement);
12.9 no Group Company has borrowed or raised any money or become a party to
any financial facility (except such short term borrowings from bankers
as are within the amount of any overdraft facility which was available
to the Group at the Accounts Date) or renegotiated or received any
notice from any banker that such banker wishes to renegotiate any
overdraft facility available to the Group at the Accounts Date.
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13 General
13.1 Authority and Capacity
13.1.1 Each of the Seller and each Group Company is validly existing
and is a company duly incorporated and registered under the
law of its jurisdiction of incorporation and registration.
13.1.2 The Seller has the legal right and full power and authority to
enter into and perform this Agreement and any other documents
to be executed by it pursuant to or in connection with this
Agreement.
13.1.3 The documents referred to in paragraph 13.1.2 will, when
executed, constitute valid and binding obligations on the
Seller, in accordance with their respective terms.
13.1.4 The Seller has taken or will have taken by Closing all
corporate action required by it to authorise it to enter into
and to perform this Agreement to which it is a party and any
other documents to be executed by it pursuant to or in
connection with this Agreement.
14 Taxation Matters
14.1 Returns, Information and Clearances
14.1.1 All returns, computations, notices and information which are
or have been required to be made or given by each Group
Company for any Taxation purpose have been made or given
within the requisite periods and on a proper basis and are
up-to-date and correct.
14.1.2 Each Group Company is in possession of sufficient information
or has reasonable access to such information to enable it to
compute its liability to Taxation insofar as it depends on any
transaction occurring on or before Closing.
14.2 Taxation Claims, Liabilities and Reliefs
14.2.1 No Group Company has since the Accounts Date taken any action
which has had, or will have, the result of altering,
prejudicing or in any way disturbing any arrangement or
agreement which it has with any Taxation authorities.
14.2.2 There are set out in the Disclosure Letter full particulars of
any agreement, arrangement or election between any Group
Company and a Taxation authority pursuant to which the
relevant Group Company is authorised not to comply with what
but for such agreement or arrangement, would be its statutory
obligations.
14.3 Close Companies
No Group Company is a close company.
14.4 Company Residence
Each Group Company has been resident for tax purposes in its country of
incorporation and nowhere else at all times since its incorporation and
will be so resident at Closing.
14.5 Payroll Taxes
Each Group Company has operated the relevant payroll tax and social
security contributions systems in all material respects by making such
deductions as are required by law from all payments made or deemed to
be
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or treated as made by it or on its behalf, and by duly accounting to
the relevant Taxation authority for all sums so deducted and for all
other amounts for which it is required to account under the relevant
payroll tax and social security contributions systems.
14.6 Value Added Tax
14.6.1 Each Group Company has complied in all material respects with
all statutory requirements, orders, provisions, directions or
conditions relating to VAT, including (for the avoidance of
doubt) the terms of any agreement reached with the relevant
Taxation authority.
14.6.2 These are set out in the Disclosure Letter full particulars of
any land in which a Group Company has an interest and in
relation to which an election has been made to waive exemption
from VAT.
14.7 Acquisitions from Members of the Same Group
The entry into or Closing of this Agreement will not result in any
profit or gain being deemed to accrue to any Group Company for Taxation
purposes.
14.8 Replacement of Business Assets
No claim has been made by Hydron Limited which would have the effect of
giving rise to a taxable gain or a recoupment of capital allowances
accruing or being treated as accruing to a Group Company if such Group
Company were to dispose of any of its assets for an amount equal to the
book value of the assets in such Group Company's Accounts in the case
of assets acquired since the Accounts Date equal to the consideration
given on their acquisition.
15 Insolvency etc.
15.1.1 No Group Company has stopped payment of its debts, entered
into any scheme or arrangement or voluntary arrangement with
its creditors, is insolvent under the laws of its jurisdiction
of incorporation or registration or unable to pay its debts as
they fall due.
15.1.2 No Group Company has been held in default by lenders under any
debt financing.
15.1.3 There are no proceedings in relation to any compromise or
arrangement with creditors or any winding up, bankruptcy or
other insolvency proceedings concerning any Group Company.
15.1.4 No order has been made or petition presented or resolution
passed for the winding up of any Group Company and no
distress, execution or other process has been levied on any of
their assets.
15.1.5 No Group Company has been notified or is otherwise aware that
any steps have been taken to enforce any security over any
assets of any Group Company and no event has occurred to give
the right to enforce such security.
15.1.6 No administrator or other receiver has been appointed by any
person over the whole or any part of the business or assets of
any Group Company, nor has any order been made or petition
presented for the appointment of an administrator in respect
of any Group Company.
15.1.7 So far as the Seller is aware there are no circumstances which
would entitle any person to present a petition for the
administration or winding up of any Group Company or to
appoint a receiver or administrator over the whole or any part
of the Group's undertaking or assets.
16 Competition/Anti-trust
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16.1 No Group Company has been, is and may be, party to or directly or
indirectly concerned in any agreement, arrangement, understanding or
practice (whether or not legally binding) which has been, is or may be
unenforceable or void or rendering any Group Company or any of its
officers liable to administrative, civil or criminal proceedings under
any anti-trust legislation, trade regulation or similar legislation in
any jurisdiction.
16.2 No Group Company has been notified nor is the Seller aware of any
investigation by any competent authority in respect of any provision of
any anti-trust legislation, trade regulation or similar legislation in
any jurisdiction in relation to any Group Company.
16.3 No Group Company has been and/or is engaged in (whether on its own or
jointly with any other person) any conduct which amounts to the abuse
of a dominant position in a market which may affect trade (within the
meaning of section 18(1) of the Competition Act 1998).
16.4 As calculated in accordance with the provisions of the Hart Scott
Rodino Anti-Trust Improvements Act of 1976 (as amended) of the United
States of America, the total book value of US assets held by Hydron
Limited and Biocompatibles Canada Inc. and any subsidiaries of those
two companies does not exceed $15 million and the aggregate annual net
sales of the aforementioned companies and their subsidiaries in the US
for the financial year ending 31 December 2001 were less than $25
million.
17 Possession of records
17.1 All title deeds and agreements to which any Group Company is a party
and all other documents owned by, or which ought to be in the
possession of or held unconditionally to the order of, the relevant
Group Company are in the possession of or are held to the order of the
relevant Group Company.
17.2 No Group Company has any of its records, systems, controls, data or
information recorded, stored, maintained, operated or otherwise wholly
or partly dependent on or held by any means (including any electronic,
mechanical or photographic process, whether computerised or not) which
(including all means of access thereto and therefrom) are not under the
exclusive ownership or direct control of the Group.
18 Unlawful acts
Since March 2000 neither any Group Company nor any officer has been
prosecuted for any criminal, illegal or unlawful act connected with the
Group.
19 Sensitive payments
Since March 2000 no officer or employee of the Group has made or
received any Sensitive Payment in connection with the business of the
Group or otherwise. For the purposes of this paragraph the expression
"Sensitive Payments" (whether or not illegal) shall include (i) bribes
or kickbacks paid to any person, firm or company including central or
local government officials or employees or (ii) amounts received with
an understanding that rebates or refunds will be made in contravention
of the laws of any jurisdiction either directly or through a third
party or (iii) political contributions or (iv) payments or commitments
(whether made in the form of commissions, payments or fees for goods
received or otherwise) made with the understanding or under
circumstances that would indicate that all or part of the payment is to
be paid by the recipient to central or local government officials or as
a commercial bribe, influence payment or kickback or (v) any payment
deemed illegal under the Prevention of Corruption Acts 1889 to 1916.
20 Health and Safety
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For the purpose of this Warranty, Relevant Period means the period
commencing on 9 March 2000 in relation to Hydron Limited and the
Subsidiaries, 23 September 1994 in relation to Biocompatibles Eyecare
Inc. and 14 November 1994 in relation to Biocompatibles Canada Inc., in
each case ending at the Closing Date.
20.1 Compliance
20.1.1 The Eyecare Business has at all times during the Relevant
Period been conducted in compliance with all applicable
legislation concerning health and safety at work and all and
any regulations made or issued under any such legislation and
any relevant codes of practice and guidance notes issued by
government agencies (the "Health and Safety Legislation").
20.1.2 Liabilities
During the Relevant Period no events, conditions, incidents or
actions have occurred which have not been remedied or are
occurring or are or have been in existence in connection with
the conduct of the Eyecare Business which are liable to give
rise to liability under the Health and Safety Legislation.
20.1.3 Properties Plant and Equipment
No material works, repairs, or construction are required to be
carried out on, nor material expenditure incurred in relation
to, any Properties, plant or equipment in order to carry on
the Eyecare Business lawfully at any Property in accordance
with the Health and Safety Legislation.
21 Product Regulatory Requirements
21.1 During the Relevant Period the Seller's Group has not marketed and/or
supplied any product comprised in the Eyecare Business which at the
time of such marketing and/or supply was not compliant in all material
respects with:
21.1.1 the requirements of all applicable European laws and the laws
of any territory in which such product has been placed on the
market;
21.1.2 the terms of any applicable recognised national or
international product standards;
21.1.3 any legally binding representation or warranty (whether
express or implied) given in respect of such product.
21.2 During the Relevant Period the Seller's Group has not received any
notice, claim, or governmental enforcement action (including any notice
from any notified body or regulatory authority) alleging any material
defect in any product comprised in the Eyecare Business or any
contravention of any applicable law or standard relating to any such
products save for those matters listed in the Disclosure Letter.
21.3 At no time during the Relevant Period has the Seller's Group marketed
and/or supplied any product comprised in the Eyecare Business without
firstly being in receipt of all requisite regulatory approvals,
certifications or registrations required to be obtained or effected by
the Seller's Group or on its behalf in order for the Seller's Group to
lawfully supply such products in each market.
21.4 At no time during the Relevant Period has the Seller's Group marketed
and/or supplied any product comprised in the Eyecare Business without
firstly having produced made or obtained and retained for the requisite
period in relation to any such product any certification, declaration,
record and/or other document of like nature required by all applicable
laws of any territory in which such product has been placed on the
market.
For the purposes of this Warranty paragraph 21, Relevant Period shall mean the
period commencing four years prior to the Closing Date and ending on the Closing
Date.
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Schedule 8
Warranties given by the Purchaser under Clause 8.6
1 Authority and Capacity
The Purchaser is validly existing and a corporation duly incorporated,
organised and registered under the law of its jurisdiction of
incorporation, organisation and registration.
1.1 Authority to enter into Agreement
1.1.1 The Purchaser has the legal right and full power and authority
to enter into and perform this Agreement to which it is a
party and any other documents to be executed by it pursuant to
or in connection with this Agreement.
1.1.2 The documents referred to in paragraph 1.1.1 will, when
executed, constitute valid and binding obligations on the
Purchaser in accordance with their respective terms.
1.2 Authorisation
The Purchaser has taken or will have taken by Closing all corporate
action required by it to authorise it to enter into and perform this
Agreement and any other documents to be executed by it pursuant to or
in connection with this Agreement.
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Schedule 9
Seller's Awareness - Clause 8.1.5
Biocompatibles International Plc
Crispin Simon Chief Executive
Swag Mukerji Finance Director
Nigel Powell Group Controller
Fiona Evans Company Secretary
Mike Driver Director of Group Development
Geoffrey Pierson Human Resources Director
Stuart Maconochie Executive Chairman of Eyecare Division of
Biocompatibles International Plc
Graham Mullis Managing Director of Biocompatibles
Hydron
Nick Williams Finance Director of Eyecare Division of
Biocompatibles International Plc
Darren Hall Global Operations Director of Eyecare
Division of Biocompatibles International
Plc
David Israel Managing Director of Biocompatibles
Eyecare Inc.
Vincent Brenckmann Country Manager for France
Arnaldo Sala Country Manager for Italy
Jesus Lopez Country Manager for Spain and Portugal
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Schedule 10
Resignation of Directors/Officers
The Purchasers will notify the Seller prior to Closing of those officers who are
to resign and those persons who are to be nominated as Directors/Secretary of
the respective Companies.
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Schedule 11
(Contracts)
(Clause 6.14)
1 Agreement dated 29 November 2000 between the Seller and Rainbow Optical
Laboratory Co. Limited ("Rainbow")
1.1 The Seller and the Purchasers shall co-operate with each other in an
approach to Rainbow to secure Rainbow's written consent to an
assignment or novation of the Seller's rights and obligations under
such agreement to a member of the UK Purchaser's Group.
1.2 Following Closing and pending assignment or novation as described above
with Rainbow's written consent, the Seller shall:
1.2.1 (to the extent that it is lawfully able to do so) hold the
benefit of the contract on trust for a Purchaser or Group
Company nominated by the UK Purchaser (the "Beneficiary") with
effect from Closing and in so acting shall:
(i) receive any payments made to the Seller after Closing
as trustee and place the same in a separate bank
account and deliver to the beneficiary as soon as
practicable after receipt any notice or other
document concerning or relating to such contract
received by the Seller; and
(ii) receive any goods delivered to it by any supplier
pursuant to such contract as agent and trustee for
the Beneficiary and deliver such goods as directed by
the Beneficiary and notify the Beneficiary of any
payment required to be made to any supplier pursuant
to any contract;
1.2.2 to the extent that the Seller is not lawfully able to hold the
contract on trust for the Beneficiary, the parties shall make
such other arrangements between themselves as the Beneficiary
may reasonably require (at the Beneficiary's expense) to
provide the benefits of the contract for the Beneficiary,
including the enforcement of all rights of the Seller against
any other party thereto; and
1.2.3 to the extent that the Beneficiary is lawfully able to do so,
the Beneficiary shall perform the Seller's obligations under
the contract as agent or sub-contractor or otherwise. To the
extent that the Beneficiary is not lawfully able to do so, the
Seller shall (at the cost of the Beneficiary) do all such
things as the Beneficiary may reasonably require to enable due
performance of the contract.
1.3 The Beneficiary shall be responsible for paying to Rainbow any
outstanding amounts under Clause 8.2.3 and the UK Purchaser shall (or
shall procure that the Beneficiary shall) indemnify the Seller in
respect of any liability arising for the Seller under such clause.
2 Agreement dated 27 July 2000 between Biocompatibles Limited and NOF
Corporation ("NOF")
The US Purchaser undertakes to the Seller (for itself and on behalf of
Biocompatibles Limited) that, for the duration of the minimum purchase
provisions set out in Clause 5.1 of the contract, it will itself (or
will procure that a member of the US Purchaser's Group will) purchase
not less than 200 kilograms of MPC (as defined in the contract) per
annum at the same cost to Biocompatibles Limited on the basis of:
50 Kilograms between Closing and 31 May 2002
100 Kilograms between 31 May 2002 and 30 November 2002
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100 Kilograms between 1 December 2002 and 31 May 2003
3 Agreement dated 5 September 2000 between Biocompatibles Limited and
Seal Sands Chemicals Limited
The US Purchaser undertakes to the Seller (for itself and on behalf of
Biocompatibles Limited) that, for the duration of the minimum purchase
provisions set out in Clause 8.1 and Schedule 4 of the contract, it
will itself (or will procure itself a member of the US Purchaser's
Group will) purchase:
not less than 8,800 kilograms of lens formulation between
Closing and 4 September 2004 per annum at the same cost to
Biocompatibles Limited and on the same delivery terms on the
basis of:
2000 Kilograms between Closing and 4 September 2002
3300 Kilograms between 5 September 2002 and 4 September 2003
3500 Kilograms between 5 September 2003 and 4 September 2004
4 Agreement dated 29 June 2001 between Visiontec CL Limited, Dr Alan
Cooke (and others), Hydron, the Seller and BTG International Limited
The Purchasers shall be responsible for paying to Visiontec any amounts
payable under Clause 10.3 of the agreement and waive any rights they
may have to cause or call for the issue of any shares in the Seller
under that Clause.
5 Agreement between Biocompatibles Limited and Specsavers UK Limited
("Specsavers")
5.1 The Seller and the Purchasers shall co-operate with each other in an
approach to Specsaver to secure Specsaver's written consent to an
assignment or novation of Biocompatibles' rights and obligations under
such agreement to a member of the UK Purchaser's Group.
5.2 Following Closing and pending assignment or novation as described above
with Specsavers' written consent, the Seller shall or shall procure
that Biocompatibles Limited shall:
5.2.1 (to the extent that it is lawfully able to do so) hold the
benefit of the contract on trust for a Purchaser or Group
Company nominated by the UK Purchaser (the "Beneficiary") with
effect from Closing and in so acting shall procure or shall:
(i) receive any payments made to Biocompatibles Limited
after Closing as trustee and place the same in a
separate bank account and deliver to the beneficiary
as soon as practicable after receipt any notice or
other document concerning or relating to such
contract received by Biocompatibles Limited; and
(ii) receive any goods delivered to it by any supplier
pursuant to such contract as agent and trustee for
the Beneficiary and deliver such goods as directed by
the Beneficiary and notify the Beneficiary of any
payment required to be made to any supplier pursuant
to any contract;
5.2.2 to the extent that the Seller or Biocompatibles Limited is not
lawfully able to hold the contract on trust for the
Beneficiary, the parties shall make such other arrangements
between themselves as the Beneficiary may reasonably require
(at the Beneficiary's expense) to provide the benefits of the
contract for the Beneficiary, including the enforcement of all
rights of the Seller against any other party thereto; and
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5.2.3 to the extent that the Beneficiary is lawfully able to do so,
the Beneficiary shall perform Biocompatibles Limited's
obligations under the contract as agent or sub-contractor or
otherwise. To the extent that the Beneficiary is not lawfully
able to do so, Biocompatibles Limited shall (at the cost of
the Beneficiary) do all such things as the Beneficiary may
reasonably require to enable due performance of the contract.
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Schedule 12
Promissory Notes and Security
1 There is one vendor of shares, Biocompatibles International plc
("PLC").
2 The shares being sold are shares in Biocompatibles Eyecare, Inc.
("BEI") (a US company), shares in Biocompatibles Canada Inc. ("BE
Canada") (a Canadian Company) and shares in Hydron Limited ("Hydron")(
a UK company).
3 There are two purchasers of the shares - a US purchaser, The Cooper
Companies, Inn. ("TCC") which buys BEI, and Aspect Vision Holdings
Limited ("AVH"), a UK subsidiary of TCC which buys Hydron.
4 The SPA provides that part of the consideration will be paid by TCC/AVH
on closing and part will be deferred.
5 The consideration is adjustable to reflect intra-group borrowings,
external finance and a net asset adjustment.
6 Under the share sale and purchase agreement ("SPA"), TCC guarantees the
obligations of AVH.
7 The promissory notes and security for the deferred consideration will
be issued/created on closing of the SPA on 28 February 2002.
8 Interest at the rate of 5% per annum will be paid monthly in advance,
ie. on 28 February, 28 March, 28 April, etc.
9 It is intended that the deferred consideration under the SPA will be
paid by TCC and AVH on 15 May, provided that audited figures relating
to the companies being acquired (including subsidiaries) are made
available by PLC to TCC on or before 15 February 2002, so as to enable
TCC to provide the relevant information to its bankers. If and to the
extent that PLC is not able to provide such audited figures on such
date, an extra day is added on to the 15 May date for redemption.
10 The security being offered by TCC and AVH are the shares in BEI and
Hydron, which will be acquired on closing of the SPA. Additional
security will also be provided by BEI granting a charge over its
facility in Norfolk, Virginia, USA.
11 It has also been agreed that AVH will not dispose of Hydron, nor Hydron
Investments Limited, nor transfer assets out of those two companies
whilst the deferred consideration is outstanding. TCC and AVH will want
to transfer assets out of the underlying subsidiaries of Hydron
Investments, as part of the post-closing integration programme which
TCC intends to carry out.
12 Whilst the intention is that TCC/AVH will repay on 15 May (or such
later date as is relevant following the failure of PLC to produce the
relevant audited figures) the actual repayment date is 15 November
2002. Accordingly, non-payment on 15 May is not an event of default.
13 Events of default after 28 February through to 15 November should be
standard.
14 Linked to the issue of the notes and the grant of security are
arrangement and administration fees, which are payable by TCC (not AVH)
to PLC. Assuming that the outstanding amount payable under the notes is
not paid on 15 May (or such later date, etc) then fees will be payable
to PLC on the basis that for the first three months after 15 May a fee
at the rate of 'L'367k will be payable in advance to PLC and for each
of the three months
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after the first period of three months a fee at the rate of 'L'733k
per month will be payable in advance to PLC. The obligation to pay fees
terminates as soon as the deferred consideration is paid.
15 Neither TCC nor any of its subsidiary companies shall be entitled to
exercise, and shall legally waive, any right of set off against amounts
of principal and interest payable on the Promissory Notes, whether
arising under this Agreement, the Deed of Tax Indemnity or otherwise.
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