1
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
September 23, 1997
(1) GLAXO GROUP LIMITED
and
(2) CHIREX (ANNAN) LIMITED
------------------------------------------
AGREEMENT
for the sale and purchase of the
Business and Assets of Glaxo Group Limited
operated from its site at Annan,
Dumfries, Scotland
------------------------------------------
2
INDEX
CLAUSE
1. DEFINITIONS AND INTERPRETATION.......................................... 1
2. SALE AND PURCHASE OF BUSINESS AND ASSETS................................ 12
3. PURCHASE PRICE.......................................................... 13
4. CONDITIONS.............................................................. 13
5. PERIOD BEFORE COMPLETION................................................ 16
6. COMPLETION.............................................................. 17
7. REIMBURSEMENT OF COSTS.................................................. 19
8. COMPLETION STATEMENT.................................................... 20
9. CONTRACTS............................................................... 21
10. CREDITORS AND LIABILITIES............................................... 22
11. EMPLOYEES............................................................... 26
12. PENSIONS................................................................ 28
13. APPORTIONMENT........................................................... 28
14. WARRANTIES.............................................................. 29
15. RIGHT TO RESCIND........................................................ 31
16. POST COMPLETION OBLIGATIONS............................................. 32
17. VALUE ADDED TAX......................................................... 34
18. CAPITAL GOODS SCHEME.................................................... 35
19. FURTHER ASSURANCE....................................................... 35
20. DISPUTE RESOLUTION...................................................... 36
21. SECONDMENT.............................................................. 37
3
22. ANNOUNCEMENTS........................................................... 38
23. COSTS................................................................... 38
24. SUCCESSORS AND ASSIGNMENT............................................... 38
25. ENTIRE AGREEMENT........................................................ 38
26. TIME OF THE ESSENCE..................................................... 39
27. NOTICES................................................................. 39
28. AGREEMENT CONTINUES IN FORCE............................................ 39
29. SEVERABILITY............................................................ 39
30. WAIVER.................................................................. 40
31. VARIATIONS.............................................................. 40
32. COUNTERPARTS............................................................ 40
33. FUNDING................................................................. 40
34. GOVERNING LAW........................................................... 40
SCHEDULE 1................................................................... 42
Apportionment of Purchase Price......................................... 42
SCHEDULE 2................................................................... 44
The Property............................................................ 44
SCHEDULE 3................................................................... 48
Terms and Conditions of Sale of the Property............................ 48
SCHEDULE 4................................................................... 53
Pensions................................................................ 53
Definitions............................................................. 53
Calculation of the Transfer Requirement................................. 59
Payment of the Transfer Requirement and Provision of
Benefits................................................................ 60
Additional Voluntary Contributions...................................... 63
4
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
SCHEDULE 5................................................................... 67
Warranties.............................................................. 67
SCHEDULE 6...................................................................103
Limitations to Vendor's Liability.......................................103
5
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
Agreed Form documents*
Annexures*
6
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
*These documents have been omitted from the filing because the Registrant does
not believe them material to an investment in its Common Stock. The documents
will be furnished supplementally to the Commission upon request.
7
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
THIS AGREEMENT is made September 23, 1997
BETWEEN:
(1) GLAXO GROUP LIMITED (registered number 305979) whose registered office is
at Glaxo Wellcome House, Berkeley Avenue, Greenford, Middlesex UB6 0NN
(the "Vendor"),
(2) CHIREX (ANNAN) LIMITED (registered number 3417229) whose registered office
is at Dudley, Cramlington, Northumberland NE23 7QG (the "Purchaser")
WHEREAS
The Vendor carries on the Business and the Vendor has agreed to sell and the
Purchaser has agreed to purchase the Business and the Assets as a going concern
for the consideration and otherwise upon the terms and conditions set out in
this agreement.
IT IS HEREBY AGREED:
1. DEFINITIONS AND INTERPRETATION
1.1 In this agreement the following words and expressions shall (except
where the context otherwise requires) have the following meanings:
"Access Agreement" means the access agreement between Dumfries and
Galloway Regional Council and a company within the Vendor's Group
dated 8 June 1979 and 17 July 1979 and recorded in the Division of
the General Register of Sasines applicable to the County of Dumfries
on 21 September 1979;
"Accounts" means the audited financial statements of the Annan
manufacturing site of GWO for each of the three consecutive
accounting reference periods ended on 31 December 1994, 31 December
1995 and 31 December 1996 respectively and the audited financial
statements of the Annan manufacturing site of GWO for the period
from 31 December 1996 to
1
8
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
Completion and the financial statements to be produced pursuant to
clause 16.2;
"Accounts Date" means the date as at which the Accounts were
respectively prepared;
"Assets" means, the Contracts, the Equipment, the Fixed Plant, the
Goodwill, the Intellectual Property, the Property, the Stock and the
Work in Progress;
"Body Corporate" means any body corporate other than a company
incorporated under the Companies Acts;
"Business" means the business of the manufacture and sale of
pharmaceutical intermediates carried on at the date hereof at the
Property by the Vendor;
"Business Day" means a day other than a Saturday or Sunday on which
banks are open for business in London;
"Cash" means the cash in hand and at bank of the Vendor in respect
of the Business at the Completion Date;
"Companies Acts" means the 1985 Act and the 1989 Act;
"Company" means (i) for the purposes of paragraph 1.3.1 of Schedule
3 a company incorporated under the Companies Acts and/or a Friendly
Society and/or an Industrial and Provident Society and/or a foreign
company and (ii) for the purposes of paragraphs 1.3.2 and 1.3.4 of
Schedule 3, a company incorporated under the Companies Acts;
"Completion" means completion of the sale and purchase of the Assets
in accordance with Clause 6;
"Completion Date" means 5 pm on the date on which Completion takes
place;
2
9
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
"Computer Systems" means the computer systems used by or for the
benefit of the Business and which are located on the Property or
computer processors associated and peripheral equipment computer
programs, technical and other documentation and data entered into or
created by the Vendor and used by or for the benefit of the Business
from time to time;
"Conditions" means the conditions contained or referred to in Clause
4;
"Confidential Information" means information concerning or relating
to property owned or used in connection with the Business in the
nature of know-how, trade secrets, technical processes, and any
other matters concerning the business, affairs or finances of the
Business (however stored) (details of which are not in the public
domain);
"Contracts"
(i) means those contracts entered into by or on behalf of the Vendor
in connection with the Business for the purchase of raw materials
and intermediates by the Vendor details of which are set out in the
list in agreed terms headed "Purchase Contracts";
(ii) means such other written contracts (but excluding the Lease
Contracts) entered into by or on behalf of the Vendor in connection
with the Business details of which are set out in the list in agreed
terms headed "Other Contracts";
and in each case which shall be subsisting but uncompleted (both
those part performed and those not yet commenced) on the Completion
Date;
"Deeds and Documents" means those deeds and documents relating to
the Property identified in the list in agreed terms headed "Deeds
and Documents";
3
10
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
"Defective" means cannot be used for its intended purpose in its
current form or used to produce good quality material without undue
expense being incurred in relation to it;
"Disclosed Scheme(s)" means the retirement benefits schemes details
of which are set out in Schedule 4 Part 1;
"Disclosure Letter" means the letter of even date with this
agreement from the Vendor to the Purchaser in agreed terms relating
to the Warranties together with any documents annexed thereto;
"Disposition" means a Disposition of the Property with absolute
warrandice in the form annexed hereto (Annex 6) to be granted by GWO
to the Purchaser on Completion;
"Employees" means those employees of the Vendor whose employment is
to be transferred to the Purchaser and whose names and details of
employment are set out in the list in agreed terms headed
"Employees";
"Employment Letter" a letter from the Vendor to the Purchaser
relating to the Employees;
"Encumbrance" means a mortgage, equity, charge, lien, claim, third
party right standard security, floating charge or other encumbrance;
"Environment" means all or any of the following media namely: the
air (including without limitation the air within buildings and the
air within other natural or manmade structures above or below
ground), water and land and any living organisms or systems
supported by those media;
"Environmental Laws" means all European Community or Union
Regulations, directives and statutory decisions, all statutes and
subordinate legislation,
4
11
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
all regulations, orders and ordinances including but without
limitation the Environment Act 1995, the Radioactive Substances Act
1993, the Planning (Hazardous Substances) (Scotland) Act 1997, the
Control of Pollution Act 1974, and the Environment Act 1990 and the
Sewerage (Scotland) Act 1968 together with Part IIA Environmental
Protection Act 1990, Sections 161A - 161D Water Resources Act 1991
and Sections 46A-D of the Control of Pollution Act 1974 the Private
Water Supply (Scotland) Regulations and all subordinate legislation
or guidance having effect thereunder and all consents, permits,
authorizations and local laws and bye-laws, all judgments, decrees,
orders, instructions, demands or awards of any competent authority
in each of the foregoing cases which are directly applicable in the
United Kingdom or any parts thereof and which concern the protection
of the Environment;
"Equipment" means all the loose plant, equipment, engineering
supplies, machinery, tools, motor vehicles, furniture, trade
utensils and other chattels owned or used in connection with the
Business at the Completion Date located at the Property (or which
are leased or hired under the terms of any of the Lease Contracts)
including but without limitation those items set out in the list in
agreed terms headed "Equipment";
"Excluded Assets" means the items listed at Schedule 1 Part 2;
"Excluded Employees" means those employees of the Vendor (previously
employed within the Business) whose employment is not to be
transferred to the Purchaser hereunder details of whom are set out
in the list in agreed terms headed "Excluded Employees";
"External Costs" means the external costs including labour costs
incurred by the Vendor directly in connection with the design and
development works
5
12
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
which the Purchaser agrees or has agreed is necessary at the
Property to facilitate the production of ****;
"Finished Products" means any products manufactured by the Vendor or
any member of the Vendor's Group in connection with the Business;
"Fixed Plant" means the fixed plant owned or used in connection with
the Business and physically attached to the Property including,
without limitation, that identified in the list in agreed terms
headed "Fixed Plant";
"Foreign Company" means any legal person, other than a natural
person, incorporated elsewhere than in Great Britain;
"Glaxo Wellcome plc Letter" means a letter in agreed terms from
Glaxo Wellcome plc relating to the transfer of the Employees";
"Grazing Lease" means the grazing lease entered into between a
company within the Vendor's Group and Messrs J.M. & J. Goldie dated
3 March 1997;
"Goodwill" means the goodwill of the Business excluding any part
thereof which is an Excluded Asset;
"GWO" means Glaxo Operations UK Limited (registered number 711851)
which trades under the name Glaxo Wellcome Operations;
"Hoddam" means Hoddam Contracting Company Limited having its
registered office at Hoddam Road, Ecclefechan;
"Hoddam Agreement" means the agreement for the supply of water to
Hoddam constituted by letter dated 14 January 1997 from GWO to
Hoddam and
6
13
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
Hoddam's endorsed acceptance thereof dated 4 February 1997;
"Information Technology Services Agreement" means the agreement in
agreed terms between GWO and the Purchaser relating to the provision
of information technology support by GWO to the Purchaser;
"Intellectual Property" means patents, inventions, know-how, trade
secrets and other confidential information, registered designs,
copyrights, design rights, rights affording equivalent protection to
copyright and design rights, topography rights, trade marks, service
marks, business names, trade names, moral rights, registration of an
application to register any of the aforesaid items, rights in the
nature of any of the aforesaid items in any country, rights in the
nature of unfair competition rights and rights to sue for
passing-off in all such cases relating exclusively to the Business
but excluding any of the foregoing which relates to any Excluded
Asset;
"IPC Authorization" means the Integrated Pollution Control
Authorizations issued in respect of the Business under Section 6 of
the Environmental Protection Act 1990 being authorization number
IPC/063/1994, IPC/011/1994, IPC/012/1994; and IPC/058/93;
"Keeper" means the Keeper of the Registers of Scotland;
"Land Register" means the Land Register of Scotland;
"Last Actuarial Valuation" means the last actuarial valuation or
funding review of the Disclosed Scheme received (whether in draft or
final form) prior to the date of this agreement;
"Lease Contracts" means the lease and hire purchase agreements
entered into by or on behalf of GWO in
7
14
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
connection with the Business and subsisting at the Completion Date
details of which are set out in the list in agreed terms headed
"Lease Contracts";
"Management Accounts" means the unaudited balance sheet and profit
and loss account of the Annan manufacturing site of GWO for the
monthly periods ending respectively 31 July 1997, 31 August 1997,
and 30 September 1997;
"Obsolete" means cannot be used for the purpose intended in
connection with the Business;
"Parties" means the parties to this agreement;
"Pensions Warranties" means the warranties contained in Schedule 4
Part 3;
"Pipeline" means the pipeline for the supply of water from the River
Annan to within the Property and all pumps, valves, manholes,
inspection chambers and associated plant and equipment and
apparatus, the right to part of which is governed by the Servitudes
and the weir in the River Annan immediately downstream from the
Pumphouse, the line of the Pipeline being shown on the plan annexed
to this agreement headed "Plan A" (Annex 1) including without
prejudice to the generality the Pumphouse and the Pumping Station;
"Property" means the heritable property and servitude rights
described in Schedule 2 and any parts thereof;
"Pumphouse" means the pumphouse, pump and intake pipe and other
plant and equipment constructed on the subjects described (In the
Third Place) (FIRST) in Schedule 2;
"Pumping Station" means the pumping station and pumps and other
equipment constructed on the
8
15
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
subjects described (In the Third Place) (SECOND) in Schedule 2;
"Purchase Price" means the aggregate amount payable by the Purchaser
for the Business and the Assets as set out in Clause 3;
"Purchaser's Accountants" means Arthur Andersen of Pearl Assurance
House, 7 New Bridge Street, Newcastle Upon Tyne NE1 8BQ;
"Purchaser's Group" means the Purchaser, any parent company of the
Purchaser and any company which, in relation to the Purchaser and/or
any parent company of the Purchaser, is a subsidiary undertaking
from time to time;
"Purchaser's Property Solicitors" means Brodies of 15 Atholl
Crescent, Edinburgh EH3 8HA;
"Purchaser's Solicitors" means Dibb Lupton Alsop of 117 The Headrow,
Leeds LS1 5JX;
"Records" means a list of all suppliers, books and records, whether
stored on hard copy or on computer and computer programmes, designs,
drawings, plans and specifications and other technical matter in
relation to the Business together with any plates, blocks, negatives
and other like material relating thereto other than the Retained
Records and other than any of the foregoing which relate to Excluded
Assets;
"Regulations" means the Transfer of Undertakings (Protection of
Employment) Regulations 1981 as amended by the Collective
Redundancies and Transfer of Undertakings (Protection of Employment)
Amendment Regulations 1995;
"Relevant Claim" means any claim by the Purchaser relating to a
breach of the Warranties;
9
16
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
"Retained Records" means those records of or relating to the
Business details of which are set out in the list is agreed terms
headed "Retained Records";
"Secondment Letter" means the letter in agreed terms between GWO and
the Purchaser relating to the secondment of certain of the Employees
by the Purchaser to a Vendor Group Company;
"SEPA" means the Scottish Environmental Protection Agency;
"Secrecy Agreement" means the secrecy agreement between Glaxo
Wellcome plc and Chirex Limited dated 30 May 1997 entered into in
contemplation of the sale of the Business and Assets under this
agreement;
"Servitudes" shall have the meaning given in Schedule 2;
"SSAP" and "FRS"" means respectively a Statement of Standard
Accounting Practice or Financial Reporting Standard in force at this
date as made or adopted by the Accounting Standards Board Limited;
"Shelf-Life" means the period during which intermediates and raw
materials may properly be used;
"Stock" means the stock in trade of unfinished goods, intermediates,
raw materials, fuel, of the Vendor for the purposes of the Business
as at the Completion Date (including items which although supplied
to the Vendor under reservation of title by the suppliers are under
the control of the Vendor);
"Subjects" shall have the meaning given in Schedule 2;
10
17
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
"subscribed" means in relation to any document, that such document
is validly subscribed so that the document shall be presumed to have
been subscribed by the grantor of it for the purposes of Sections 3
and/or 7 of, and/or Schedule 2 to, the Requirements of Writing
(Scotland) Act 1995;
"Supply Agreement" means the agreement in agreed terms between GWO
and the Purchaser relating to the supply of products by the
Purchaser to GWO;
"Tax" means all forms of taxation, duty, levy, charges, and
withholdings, or social security contribution and any fine, penalty,
or interest in respect thereof;
"Taxes Act" means the Income and Corporation Taxes Act 1988;
"VAT" means Value Added Tax;
"Vendor's Accountants" means Coopers & Lybrand of Plumtree Court
London;
"Vendor's Group" means the Vendor, any parent company of the Vendor
and any company which, in relation to the Vendor and/or any parent
company of the Vendor is a subsidiary undertaking from time to time;
"Warranties" means the representations, warranties and undertakings
on the Vendor's part contained or referred to in Clause 14 and
Schedule 5 and including the Pensions Warranties;
"Water Abstraction Consents" means the consents to the abstraction
of water from the River Annan which are detailed in the assignation
thereof the form of which is annexed hereto (Annex 2);
11
18
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
"Water Supply" means the taking of water from the River Annan by the
Pipeline;
"Work in Progress" means work in process of the Vendor for the
purposes of the Business as at the Completion Date ;
"1979 Act" means the Land Registration (Scotland) Act 1979;
"1985 Act" means the Companies Act 1985; and
"1989 Act" means the Companies Act 1989.
1.2 Any reference in this agreement to any provision of any Act of
Parliament shall include reference to any subordinate legislation
(as defined in the Interpretation Act 1978) made pursuant thereto
and shall be deemed (unless otherwise expressly provided) to be a
reference to such Act of Parliament or subordinate legislation as
amended, modified or re-enacted (whether before or after the date
hereof) and any reference to any provision of any such Act of
Parliament or subordinate legislation shall also include where
appropriate any provision of which it is a re-enactment (whether
with or without modification).
1.3 In this agreement words incorporating the masculine gender only
include the feminine and neuter genders and words incorporating the
singular number only include the plural and vice versa.
1.4 Unless otherwise stated references to Clauses, sub-clauses and
Schedules are references to Clauses and sub-clauses of and Schedules
to this agreement. The Schedules form part of this agreement.
12
19
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
1.5 The Index and clause headings are for ease of reference only and do
not affect the construction or interpretation of this agreement.
1.6 References to persons shall include bodies corporate, unincorporated
associations and partnerships.
1.7 References to the parties hereto include their respective successors
in title, assigns and legal personal representatives.
1.8 A body corporate shall be deemed to be associated with another body
corporate if it is a holding company of, or a subsidiary of, or a
subsidiary of a holding company of, that other body corporate and a
person shall be deemed to be connected with another if that person
is so connected within the meaning of Section 839 of the Taxes Act.
1.9 Where a document is referred to in this agreement as being "in
agreed terms", it shall be in the form agreed by the parties to this
agreement and initialed by or on behalf of them for identification.
1.10 Where any statement is qualified by the expression "to the best of
the knowledge information and belief of the Vendor" or "so far as
the Vendor is aware" or any similar expression there shall be deemed
to be included after such statement the words "after careful
consideration and having made appropriate enquiry of relevant
persons currently in the employment of any company in the Vendor
Group and the following professional advisers; Sackers, the Vendor's
Accountants, Dundas & Wilson and the knowledge of the Vendor shall
be deemed to include the knowledge of each of the companies within
the Vendor's Group.
13
20
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
2. SALE AND PURCHASE OF BUSINESS AND ASSETS
2.1 The Vendor shall sell with full title guarantee (save for the
Property)and the Purchaser shall purchase the Business as a going
concern and all of the Assets free from all Encumbrances as at the
Completion Date.
2.2 The Property shall be transferred in accordance with the terms and
subject to the conditions set out in Schedule 3.
2.3 There shall be excluded from the sale and purchase hereby agreed
upon the Excluded Assets and nothing herein contained shall operate
so as to impose upon the Purchaser any obligations or liabilities in
respect of any other assets or liabilities of the Vendor except as
specifically provided in this agreement.
3. PURCHASE PRICE
3.1 The Purchase Price payable by the Purchaser for the Business and the
Assets shall be the aggregate of:
3.1.1 the sum of (pounds)40,000,000 (forty million pounds) which sum
shall be paid on the Completion Date; and
3.1.2 the sum agreed or determined in accordance with Clause 8
provided always that in no circumstances shall this sum exceed
(pounds)1,000,000 (one million pounds) and which sum shall be
paid on the Completion Date or, if such sum has not been
agreed or determined on the Completion Date, within 7 days of
such agreement or determination.
3.2 The Purchase Price shall be apportioned (subject to adjustment in
accordance with Clause 8) among the Assets as set out in Schedule 1.
4. CONDITIONS
14
21
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
4.1 The sale and purchase of the Business and the Assets under this
agreement is in all respects conditional upon:-
4.1.1 the Purchaser being satisfied that there is a secure and
adequate supply of water to the Property for the purposes of
the Business including satisfactory results of a triangulation
survey (to be verified by the Purchaser's environmental
consultants) at the Property to establish the suitability of
ground water resource and the availability of at least 500,000
gallons of water a day which is not contaminated by salt and
is of an appropriate quality to be used in the Business and an
independent estimate of the cost and timing of sinking the
production well and a letter of intent from SEPA confirming
their consent to the construction of a pumping well on the
Property and the extraction from that well of up to 500,000
gallons of water per day for use in the Business and a letter
from the local planning authority confirming either that the
sinking of a production well would not require planning
permission, or (if it does) that planning consent would be
granted and a letter from the appropriate authority confirming
the availability of a public supply of water to the Property
and indicating the capacity of such supply and an estimate of
the cost, feasibility and timing of constructing a pipeline to
the Property and agreement between the Parties of the works to
be undertaken to secure such supplies, it being acknowledged
that the Vendor's liability to pay one half of the cost of
such works (set out in Clause 16.1) should be limited to an
amount to be agreed by the Parties;
15
22
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
4.1.2 the board of directors of Chirex Inc voting in favor of making
the acquisition of the Business and the Assets;
4.1.3 the Purchaser and the Vendor agreeing proposals regarding the
arrangements with Hoddam relating to Hoddam's rights to
extract water from the Pipeline, including the possible
termination of the Hoddam Agreement, it being acknowledged by
the Vendor that it may be appropriate as part of such
proposals that the Vendor grant the Purchaser an indemnity in
respect of any liabilities, or loss of rights of the Property
to extract water which such proposals might give rise to;
4.1.4 the Purchaser being reasonably satisfied with the current
estimates of the Vendor in respect of any works, modification
or remedial action required in connection with the variation
of the existing IPC Authorizations or obtaining new IPC
Authorizations or expenditure otherwise required in respect of
the incinerator in excess of (pounds)650,000 it being
acknowledged that any increase in operating levels following
Completion would not be taken into account in assessing such
expenditure and that it may be appropriate for the Vendor to
give an indemnity in respect of such expenditure should the
existing estimates be insufficient;
4.1.5 the Purchaser receiving satisfactory confirmation from the
Vendor that a manufacturing licence pursuant to the Medicines
Act 1968 and the Medicines Act 1971 is not required for the
operation of the Business;
16
23
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
4.1.6 approval of third parties to transfer of contracts/licences;
4.1.7 the Purchaser being satisfied with the results of any
outstanding due diligence enquiries which have been raised in
writing by or on behalf of the Purchaser prior to the date of
this agreement.
4.2 The Vendor shall save in respect of clause 4.1.1 use all reasonable
endeavours with the Purchaser's full assistance to procure that each
of the conditions set out in Clause 4.1 are satisfied as soon as
possible, (it being the intention that all such conditions are
satisfied by 15 October 1997.)
4.3 In the event of any of the conditions in Clause 4.1 not being
satisfied or waived in writing by the Purchaser by 15 November 1997
then the provisions of this agreement, (save for Clauses 21 and 22
which shall continue in full force and effect) shall (unless the
Parties otherwise agree in writing) be null and void and of no
further effect and the Parties shall be released from their
respective obligations under this agreement. For the avoidance of
doubt the Secrecy Agreement shall continue to apply between the
parties thereto.
5. PERIOD BEFORE COMPLETION
5.1 The Vendor undertakes that during the period from the date of this
agreement until the Completion Date it will procure that the
Business is carried on in substantially the same manner as
heretofore, so as to maintain the same as a going concern and
without prejudice to the generality of the foregoing (unless the
Purchaser shall previously have agreed otherwise in writing) the
Vendor will procure that it or (as appropriate) GWO will in relation
to the Business:-
17
24
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
5.1.1 not enter into any contract or commitment of an unusual nature
or which is other than in the ordinary course of business;
5.1.2 not institute changes in management policy of a significant
nature;
5.1.3 not purchase stock, raw materials, or intermediates of a kind
or in quantities other than as may be reasonably necessary for
the operation of the Business in the ordinary course and so as
to maintain quantities of stock, raw materials and
intermediates consistent with the previous operation of the
Business;
5.1.4 not terminate the employment of any of the Employees or alter
any existing term of their employment or engage more
employees;
5.1.5 not do or suffer to be done any act or thing which may
immediately or in the future adversely affect the Goodwill;
5.1.6 not enter into any agency, distribution, advertising,
maintenance or other similar contract;
5.1.7 consult the Purchaser prior to taking action in relation to
any matters of importance in connection with the Business;
5.1.8 allow the Purchaser and its representatives reasonable access
to the Property and to the books, documents, files and records
of the Business on prior notice and subject to the observance
by the Purchaser of the site procedures in operation at the
Property and subject to making good any damage caused by the
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Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
Purchaser or its representatives to the Property;
5.1.9 use all reasonable endeavours to assist the Purchaser in
the assignment, transfer or grant to the Purchaser of all
statutory or regulatory licences necessary for the
Purchaser to carry on the Business;
5.1.10 maintain the supply of all utilities required in connection
with the Business on terms no less favorable than those
which exist at the date of this agreement; and
5.1.11 keep in force its existing insurance policies as disclosed
to the Purchaser in respect of the Business and the Assets.
6. COMPLETION
6.1 Completion of the sale and purchase of the Business and Assets
shall take place on 15 October 1997 or (if later) three Business
Days after the satisfaction or waiver of the last of the
conditions in Clause 4 to be satisfied or waived. Completion shall
take place at such location as is agreed by the Parties.
6.2 At Completion the Vendor shall:-
6.2.1 permit the Purchaser to assume the conduct of the Business
and possession of those of the Assets capable of passing by
delivery and the Purchaser will carry on the Business with
effect from the Completion Date;
6.2.2 complete the sale or procure the completion of the sale to
the Purchaser of the Property in accordance with the terms
contained in or referred to in Schedule 3;
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
6.2.3 deliver to the Purchaser:-
6.2.3.1 the Disposition and any other items required
to be delivered at Completion in terms of
Schedule 3;
6.2.3.2 the Deeds and Documents;
6.2.3.3 the Information Technology Services
Agreement;
6.2.3.4 the Supply Agreement;
6.2.3.5 the Secondment Letter;
6.2.3.6 duly executed assignments in agreed terms
together with such other documents as the
Purchaser may reasonably require to perfect
its title to the Goodwill, the Intellectual
Property, the Contracts and the Lease
Contracts;
6.2.3.7 the Records;
6.2.3.8 all national insurance contributions and
PAYE records duly completed and up to date
in respect of the Employees;
6.2.3.9 all contracts of employment, statements of
terms and conditions and all personnel
records, files and details relating to the
Employees;
6.2.3.10 the value added tax records referred to in
Clause 17;
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Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
6.2.3.11 a letter from the Vendor (or the appropriate
Vendor Group Company) transferring the IPC
Authorizations to the Purchaser;
6.2.3.12 the Disclosure Letter;
6.2.3.13 the Employment Letter; and
6.2.3.14 the Glaxo Wellcome plc Letter.
6.3 Upon fulfilment by the Vendor of its obligations under Clause 6.2
the Purchaser shall:
6.3.1 procure the payment by electronic funds transfer of the
sums due and payable under Clause 3 to National Westminster
Bank Plc sort code 50/00/OT account number 00462616 account
name Glaxo Group Limited; and
6.3.2 deliver to the Vendor duly executed counterparts of the
documents referred to in Clause 6.2 as are required to be
executed by the Purchaser.
6.4 The Purchaser shall not be obliged to complete the purchase of any
of the Assets unless the purchase of all the Assets is completed
in accordance with this agreement.
7. REIMBURSEMENT OF COSTS
7.1 The Purchaser undertakes that it will within 28 days of receipt by
it of any relevant suppliers invoice, reimburse the Vendor the
External Costs. The Purchaser shall have no liability under this
clause unless it shall have given its written approval to any
External Costs before any such costs are incurred by the Vendor.
Such approval may be given by the Purchaser in respect of each
specific item of cost or by approval of such costs within a
specific project.
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
7.2 The Vendor shall reimburse the Purchaser for any VAT in respect of
such costs for which the Purchaser is liable and which is
irrecoverable by the Purchaser.
7.3 In the event that Completion has not taken place, for any reason
whatsoever, by 15 November 1997 the Vendor shall repay forthwith
to the Purchaser all sums paid by the Purchaser under Clause 7.1.
7.4 The Vendor shall reimburse any costs (not exceeding the GWO budget
and interest) incurred by the Purchaser in respect of the Business
in the period from the date of this agreement to 31 December 1997
insofar as such costs exceed the revenues of the Business to which
the Purchaser is entitled during that period. The Vendor shall be
entitled to require the Purchaser to provide such information as
it reasonably requires to monitor and challenge any costs
schedules produced by the Purchaser.
8. COMPLETION STATEMENT
8.1 On the Completion Date or as soon as practicable thereafter the
Vendor shall carry out a physical count and a valuation of the
Stock and Work in Progress as at the Completion Date. The
Purchaser and its representatives shall be entitled to attend such
count and valuation.
8.2 The Stock and Work in Progress will (subject to the further
provisions of this clause) be valued at the lower of cost and net
realizable value using the same methods and bases (as nearly as
may be practicable and insofar as they are consistent with good
accounting and valuation practice and with all applicable SSAP's
and FRS's) as those consistently adopted by the Vendor in the
valuations of similar items for the purposes of the Accounts. No
value will be attributed to any Stock or Work in Progress which is
Defective, Obsolete or outside of its Shelf-Life. Provided
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
Always that if the value of the Stock and Work in Progress (when
valued in accordance with the provisions of this Clause 8.2)
would, but for this proviso, exceed(pounds)1,000,000 it shall be
certified as being and for all purposes relating to this agreement
shall be (pounds)1,000,000.
8.3 The Vendor will procure that a written certificate of the value of
the Stock and Work in Progress calculated on the basis set out or
referred to in Clause 8.2 ("the Completion Statement") is
delivered to the Purchaser as soon as practicable following the
Completion Date and in any event not later than 3 Business Days
following such date. The Purchaser may within the period of 3
Business Days following delivery of the Completion Statement by
notice in writing to the Vendor dispute the value set out in the
Completion Statement. If no such notice is received or if within
the said period of 3 Business Days the value of the Stock and Work
in Progress as set out in the Completion Statement or any amended
amount is agreed between the Vendor and the Purchaser then the
value as set out in the Completion Statement or (as the case may
be) any amended amount shall be conclusive and binding upon the
parties for the purposes hereof.
8.4 If the Purchaser shall give notice of any dispute under Clause 8.3
which is not resolved within the said period of 3 Business Days,
such dispute shall be referred for determination in accordance
with Clause 20.
9. CONTRACTS
9.1 With effect from the Completion Date the Purchaser shall take
over, perform and complete the Contracts.
9.2 Insofar as the benefit of any of the Contracts or Lease Contracts
cannot effectively be transferred
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
to the Purchaser (whether by assignment, novation or otherwise)
without the consent of a third party and such consent has not been
obtained at or prior to Completion:-
9.2.1 the Vendor shall use all reasonable endeavours to obtain
such consent as soon as practicable;
9.2.2 unless and until any such contract has been transferred to
the reasonable satisfaction of the Purchaser, the Purchaser
shall for its own benefit and to the extent that the
contract in question permits without constituting a breach
thereof, perform on behalf of the Vendor (but at the
Purchaser's expense) all the Vendor's obligations and the
Vendor will co-operate with the Purchaser (at the Vendor's
expense) in any reasonable arrangements designed to provide
for the Purchaser the benefits under any such contracts
including the enforcement of any and all rights of the
Vendor thereunder;
9.2.3 in the event that any such contract cannot be fully and
effectually transferred to the Purchaser, the Parties shall
use their respective reasonable endeavours to procure that
the contract in question is terminated without liability to
the Parties. If termination without liability to the
Parties cannot be achieved the Purchaser shall have no
further obligation to the Vendor relating to the contract
in question and the Vendor shall indemnify the Purchaser
against any costs, claims, damages, liabilities, or
expenses arising from claims by any third party in relation
to the contract in question and the termination, assignment
or attempted
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
assignment of such contract without consent;
9.2.4 if the Purchaser shall require, the Vendor shall enter into
novation agreements with the other parties to any of such
contracts to the intent that thenceforth the Purchaser
shall be in a direct contractual relationship with such
other parties.
10. CREDITORS AND LIABILITIES
10.1 The Vendor shall remain responsible for and shall promptly pay,
discharge or satisfy all debts payable by the Vendor and other
obligations and liabilities arising from or attributable to the
carrying on of the Business prior to the Completion Date (save for
any which are expressly assumed by the Purchaser under this
agreement) including without limitation:-
10.1.1 all liabilities to trade and other creditors including
banks and all liabilities in respect of Tax of the Vendor
or any company within the Vendor's Group;
10.1.2 all liabilities and obligations accrued or falling to be
performed under the Contracts and the Lease Contracts up to
the Completion Date; and
10.1.3 all claims made by third parties on or after the Completion
Date in respect of any goods or services supplied by the
Vendor or any company within the Vendor's Group or any act
or omission of the Vendor or any company within the
Vendor's Group prior to the Completion Date.
The Vendor shall if so requested by the Purchaser promptly supply
to the Purchaser written details
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
of all trade and other creditors of the Business subsisting at the
Completion Date.
10.2 The Vendor shall fully and effectively indemnify and keep
indemnified the Purchaser against any liability, loss, damage,
penalty, cost or expense (including reasonable legal and other
professional fees) incurred in defending or resolving any actions
or claims (civil or criminal) or in appealing against any
judgment, notice or award and also including the cost of remedial
work under or pursuant to or carried out to avoid the application
of any Environmental Laws, which are suffered or incurred by the
Purchaser and which arise out of the past use of the Property
(including any activity, trade, business or operation carried out
on the Property at anytime) whether arising before or after
Completion and including, but without limitation, any liability,
loss, damage, penalty, cost or expense arising directly or
indirectly from the oil spillage which occurred on the Property in
1992. Provided that the Vendor shall not be liable under this
clause 10.2 if and to the extent that the matter giving rise to
the claim would not have arisen but for the passing of or a change
in, after the date of Completion a law, or regulation not actually
prospectively in force at the date of this agreement. For the
purposes of this clause Part IIA of the Environment Protection Act
1990 as inserted by the Environment Act 1995 as it is brought into
force and the first complete set of guidance and regulations
adopted thereunder, and the amendment to Sections 161A to D of the
Water Resource Act 1991 as inserted by the Environment Act 1995
shall be deemed to be in force at the date of this agreement.
10.3 The maximum liability of the Vendor under Clause 10.2 shall be
****.
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
10.4 The Vendor is not liable under Clause 10.2 unless the Purchaser
has given the Vendor written notice of the matter under Clause
10.2 on or before the date which is **** after the Completion
Date.
10.5 If the Vendor pays to the Purchaser an amount under Clause 10.2
and the Purchaser or any member of the Purchaser's Group
subsequently recovers from a third party an amount which is
directly referable to the matter giving rise to the claim under
Clause 10.2 then:
10.5.1 if the amount paid by the Vendor in respect of the claim
under Clause 10.2 is more than the sum recovered from the
third party, the Purchaser shall pay the Vendor the sum so
recovered; and
10.5.2 if the amount paid by the Vendor in respect of the claim
under Clause 10.2 is less than or equal to the sum
recovered from the third party, the Purchaser shall pay the
Vendor an amount equal to the amount paid by the Vendor;
For the purposes of this Clause 10.5 the "sum recovered" means an
amount equal to the amount recovered from the third party less all
reasonable costs and expenses incurred by the Purchaser or any
member of the Purchaser's Group in recovering the amount from the
third party.
10.6 The Purchaser shall as soon as reasonably practicable give written
notice to the Vendor of any matter which it becomes aware which is
likely to give rise to a claim under Clause 10.2 and shall consult
with the Vendor in respect to the matter and the Vendor shall be
entitled to make such reasonable investigation into the matter as
it thinks fit. If the Purchaser fails, for whatever reason, to
comply with the terms of this Clause any such failure shall not
affect the
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
Purchaser's ability to make a claim under Clause 10.2.
10.7 If and to the extent that the matter giving rise to the claim
under Clause 10.2 concerns the reduction in value of the Property
as a consequence of the Purchaser using and operating the Property
for purposes other than pharmaceutical and intermediate
manufacturing (including without limitation the use of the
Property for residential uses or public recreation).
10.8 Unless otherwise expressly provided, nothing in this agreement
shall make the Purchaser liable in respect of anything done or
omitted to be done by the Vendor or any company within the
Vendor's Group prior to the Completion Date and the Vendor shall
indemnify the Purchaser in full for and against any claims, costs,
expenses or liabilities whatsoever and howsoever arising incurred
or suffered by the Purchaser in connection with any of the debts,
obligations and liabilities referred to in Clause 10.1 including
costs incurred by the Purchaser in settling any claim in respect
of such debts, obligations or liabilities. This indemnity shall
extend without limitation to all legal expenses and other
professional fees reasonably and properly incurred by the
Purchaser.
10.9 With effect from the Completion Date the Purchaser shall:-
10.9.1 observe and perform or procure to be observed and performed
all the obligations of GWO under the Contracts and the
Lease Contracts except insofar as such obligations should
have been performed at or before the Completion Date and
except insofar as such obligations have not been fully and
effectively transferred to the Purchaser whether by
assignment, novation
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
or otherwise and it is not possible for the Purchaser to
perform or procure the performance thereof without
constituting a breach of the contract concerned;
10.9.2 assume responsibility for payment for all goods delivered
or services received under the Contracts after the
Completion Date and which do not form part of the Stock or
Work in Progress whether the invoices for such goods or
services are received before or after the Completion Date;
10.9.3 keep the Vendor and GWO fully and effectively indemnified
against any liability howsoever arising from the Contracts
or the Lease Contracts as a result of any act or omission
of the Purchaser after Completion.
11. EMPLOYEES
11.1 The Parties acknowledge that pursuant to the Regulations at the
Completion Date the Purchaser it will become the employer of the
Employees (but not the Excluded Employees).
11.2 The Vendor shall indemnify the Purchaser in full for and against
all claims, costs, expenses or liabilities whatsoever and
howsoever arising incurred or suffered by the Purchaser including
without limitation all legal expenses and other professional fees
(together with any VAT thereon) arising out of or in respect of
the employment or the termination of the employment of any of the
Employees up to and including the Completion Date or arising out
of the employment or the termination of the employment of the
Excluded Employees or any other person in respect of the Business
at any time.
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
11.3 The Purchaser shall indemnify the Vendor and/or GWO in full for
and against all claims, costs, expenses or liabilities whatsoever
and howsoever arising incurred or suffered by the Vendor and/or
GWO including without limitation any reasonable legal expenses and
other professional fees (together with any VAT thereon) arising
out of or in respect of the termination of the employment of the
Employees after the Completion Date.
11.4 The Vendor warrants that the Vendor and/or GWO (as applicable)
have complied with Regulation 10 of the Regulations and will
indemnify the Purchaser against any compensation for which the
Purchaser may become liable as a result of any breach thereof by
the Vendor. The Vendor shall have no liability to the Purchaser
under this clause to the extent that any failure on its or GWO's
part to comply with Regulation 10 is as a result of a failure on
the part of the Purchaser to provide the Vendor with such
information as the Vendor has requested regarding the Purchaser
and its plans for the Business following Completion.
11.5 All salaries and other emoluments including holiday pay, taxation
and national insurance contributions and contributions to
retirement benefit schemes relating to the Employees shall be
borne by the Vendor up to and including the Completion Date and by
the Purchaser with effect from the Completion Date and all
necessary apportionments shall be made.
12. PENSIONS
The provisions set out in Schedule 4 shall apply to the Employees and
govern their rights under the Disclosed Schemes.
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
13. APPORTIONMENT
13.1 All rents, rates, gas, water, electricity, telephone charges and
other outgoings relating to or payable in respect of the Business
up to and including the Completion Date shall be borne and paid by
the Vendor and as from the Completion Date shall be borne and paid
by the Purchaser and shall be apportioned accordingly.
13.2 All rents, royalties and other periodical payments receivable in
respect of the Business up to the Completion Date shall belong and
be payable to the Vendor and as from that time shall belong to and
be payable to the Purchaser and shall be apportioned accordingly.
13.3 The benefit of any prepayments, deposits or payments in advance
made to the Vendor on or before the Completion Date in respect of
goods and services to be supplied by the Purchaser after the
Completion Date shall belong to the Purchaser and the benefit of
any prepayments, deposits and payments in advance made by the
Vendor in respect of goods ordered but not delivered and services
contracted for but not rendered to the Vendor in connection with
the Business on or before the Completion Date shall be reimbursed
by the Purchaser to the Vendor.
13.4 Any amount due from the Vendor or the Purchaser pursuant to
Clauses 13.1, 13.2 or 13.3 shall be paid within 14 days of written
request from the Purchaser or the Vendor (as the case may be) for
the amount thereof together with supporting vouchers. If any
dispute shall arise as to the amount of any apportionment
hereunder such dispute shall be referred for final determination
in accordance with Clause 20.
14. WARRANTIES
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
14.1 The Vendor warrants and represents to the Purchaser as at the date
of this agreement in the terms of the Warranties.
14.2 The Vendor shall further warrant and represent as at the
Completion Date to the Purchaser in the terms of the Warranties as
if they had been entered into afresh at Completion by reference to
the facts and circumstances then existing.
14.3 Each of the Warranties shall be construed as a separate and
independent warranty and (save where expressly provided to the
contrary) shall not be limited or restricted by reference to or
inference from any other terms of this agreement or any other
Warranty.
14.4 The rights and remedies of the Purchaser in respect of any breach
of any of the Warranties shall continue to subsist notwithstanding
Completion.
14.5 The Vendor hereby undertakes with the Purchaser that it will
forthwith disclose in writing to the Purchaser any event or
circumstance which may arise or become known to it after the date
hereof and prior to Completion which is materially inconsistent
with any of the Warranties or which has or is likely to have an
adverse effect on the financial position or business prospects of
the Business or which is otherwise material to be known by a
purchaser for value of the Business.
14.6 The Purchaser shall be given all such facilities as it (or its
authorized representatives) may reasonably require to enable the
Purchaser to be satisfied with regard to the accuracy of the
Warranties provided that the Warranties shall not be deemed in any
way modified or discharged by reason of any investigation made or
to be made by or on behalf of the Purchaser or by reason of any
information relating to the Business of which
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
the Purchaser has knowledge (actual implied or constructive)
except such information as is fully and fairly disclosed in the
Disclosure Letter.
14.7 In the event of any breach or non-fulfilment of any of the
Warranties resulting in:-
14.7.1 the value of the Goodwill and/or any of the other Assets
being or becoming less than it would have been had the
relevant circumstances been as so warranted; or
14.7.2 the Purchaser having incurred or incurring any liability
which it would not have incurred had the relevant
circumstances been as so warranted;
then without prejudice to any other rights or remedies available
to the Purchaser and without restricting its ability to claim
damages on any other basis the Vendor agrees to pay to the
Purchaser on demand an amount sufficient to make good the
diminution in the value of the Goodwill and/or other Assets or an
amount equal to the liability thereby incurred.
14.8 The Vendor hereby agrees to indemnify the Purchaser in full for
and against all costs (including reasonable legal costs) and
expenses (together with any VAT thereon) incurred by the Purchaser
either before or after the commencement of any action in
connection with:-
14.8.1 the settlement of any claim that any of the Warranties has
been breached or is untrue inaccurate or misleading;
14.8.2 any legal proceedings arising out of or in connection with
any claim or breach of any of the Warranties in which
judgment is given in favour of the Purchaser; or
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
14.8.3 the enforcement of any such settlement or judgment.
14.9 The rights of the Purchaser under Clauses 14.7 and 14.8 shall be
in addition and without prejudice to any other right or remedy
available to it under this agreement or otherwise.
14.10 Any amount paid by the Vendor to the Purchaser in respect of a
breach of Warranty shall be treated primarily as a reduction in
the Purchase Price.
14.11 The Warranties shall be qualified by matters fully and fairly
disclosed in the Disclosure Letter but shall otherwise be subject
to no qualification whatsoever.
14.12 The Purchaser acknowledges that no representations, or warranties
express or implied are given by the Vendor in relation to the
Business other than the Warranties themselves.
14.13 The provisions of Schedule 6 shall have effect in respect of the
matters to which this Clause 14 applies to limit the liability of
the Vendor in respect of the Warranties.
15. RIGHT TO RESCIND
15.1 If the Vendor shall disclose any event or circumstance pursuant to
sub-clause 14.5 or if there is a breach of any of the Warranties
or a breach or non-fulfilment of any other term of this agreement
by the Vendor, the Purchaser shall be entitled in addition and
without prejudice to any other right or remedy available to it to
rescind this agreement without any liability to any other party
whereupon the Vendor shall indemnify the Purchaser in full for and
against all claims, costs, expenses and liabilities incurred or
suffered by the Purchaser (including but not limited to all legal
and other professional fees
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
and expenses) in connection with the negotiation, preparation and
rescission of this agreement as are incurred after the date of
this agreement.
15.2 The Purchaser shall not be entitled to exercise its right of
rescission under Clause 15.1 unless the matter in question in the
reasonable opinion of the Purchaser (having first discussed the
matter with the Vendor) has had or is likely to result in a
reduction in the value of the Assets of(pounds)1,000,000 or more.
In arriving at its opinion as to whether such matter will have or
has had such an effect the Purchaser shall act reasonably and in
good faith and shall take into account the availability of
insurance receipts in respect of such matter.
16. POST COMPLETION OBLIGATIONS
16.1 The Vendor undertakes to indemnify and keep indemnified the
Purchaser against all liabilities, losses, obligations, costs,
claims, damages, demands and expenses arising directly or
indirectly out of the provision of a secure and adequate supply of
at least 500,000 gallons a day of non saltwater water to the
Property which is suitable for the purposes of the Business
provided that the Vendor's liability under clause 16.1 shall be
limited to 50% of such costs and the Vendor's liability shall be
limited to such amount as is agreed pursuant to Clause ?.
16.2 The Vendor undertakes to provide to the Purchaser in respect of
the manufacturing site at Annan:
16.2.1 within 10 Business Days of Completion audited financial
statements for the years ended 31 December 1994, 31
December 1995 and 31 December 1996;
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
16.2.2 within 10 Business Days of Completion, copies of the
unaudited financial statements to Completion;
16.2.3 within 28 days of Completion, copies of the audited balance
sheet and profit and loss accounts for the period from 31
December 1996 to Completion;
16.2.4 by the later of 30 November 1997 and 28 days after
Completion unaudited quarterly accounts in respect of the
period from 1 January 1996 (being audited as at 31 December
1996) to Completion. In respect of any costs incurred by
the Vendor under this Clause 16.2.4 the Purchaser shall, if
required, pay the actual cost of any temporary assistance
up to a maximum of (pounds)5,000.
16.3 The Vendor undertakes to the Purchaser to maintain adequate
insurance in respect of Finished product at the Property both
before and after Completion.
16.4 The Vendor undertakes to obtain from the Vendor's Accountants
authority to use any financial information available or required
in respect of the Business (whether before or after Completion)
under the requirements of the Securities and Exchange Commission
and the Securities Act of 1933 and the Securities Exchange Act of
1934 of the United States and to procure the co-operation of the
Vendor's Accountants in respect of any public offering of Chirex
Inc., including providing any customer comfort letters required by
any underwriters of such offering and to procure access to any
underlying records of the Vendor's Accountants or the Vendor's
Group.
16.5 The Parties undertake to one another that all Records delivered to
the Purchaser at Completion shall be retained by the Purchaser and
all the
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
Retained Records shall be retained by the Vendor and each Party
shall make available for inspection and reasonable use by the
other Party all such books, records and other documents retained
by it (or transferred to it as the case may be) relating to the
Business as the other Party may request in finalizing its affairs
in relation to the transfer of the Business and the Assets
pursuant to this agreement and to give effect to this agreement.
The rights and obligations contained in this clause shall expire
on the sixth anniversary of Completion, save in respect of
particular records (including but not limited to Control of
Substances Hazardous to Health records) in respect of which there
is a legal obligation to retain such Records for a longer period.
The Purchaser undertakes to maintain and, on request, provide to
the Vendor samples of Products (as are available on Completion)
manufactured by the Vendor at the Property.
16.6 The Purchaser shall procure at the Vendor's cost that for a period
of 12 months after Completion those of the Employees whose
assistance is reasonably required by the Vendor in connection with
matters arising from its carrying out the Business prior to the
Completion Date will be available at reasonable times to assist
the Vendor provided that such assistance does not unduly interfere
with their day-to-day function within the Business.
17. VALUE ADDED TAX
17.1 The purchase price of the Assets and the Business stated in this
agreement is exclusive of VAT.
17.2 The parties intend that the provisions of section 49 of the Value
Added Tax Act 1994 and Article 5 of the Value Added Tax (Special
Provisions) Order 1995 shall apply to the sale of the Business and
the Assets and, accordingly, no VAT shall be
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
charged by the Vendor on them. The Vendor and the Purchaser shall
each promptly following Completion inform their respective VAT
offices of the sale and purchase under this agreement, complete
all relevant forms for VAT purposes relating to such sale and
purchase and take all reasonable steps to ensure that the sale of
the Business and Assets is treated neither as a supply of goods
nor a supply of services for the purposes of VAT but as the
transfer of a going concern. In the event that it is at any time
determined by HM Customs and Excise or, on appeal, by the tribunal
or the court that section 49 of the Value Added Tax Act 1994 and
Article 5 of the Value Added Tax (Special Provisions) Order 1995
do not apply to the sale of the Business and Assets or any part of
them, the Purchaser shall pay to the Vendor the amount of the VAT
in question on the later of the business day before such amount is
due to be paid by the Vendor to Customs & Excise and the day on
which the Vendor delivers to the Purchaser a valid VAT invoice or
invoices in respect thereof. Subject to the Vendor having complied
with its obligations under this Clause 17 the Purchaser shall in
addition pay any penalty and interest imposed by Customs and
Excise in respect of late payment of such VAT.
17.3 For the purposes of the said Article 5, the Vendor warrants that
it carries on, and that it will immediately prior to Completion
carry on, the Business.
17.4 The Vendor shall, at Completion, deliver to the Purchaser all the
records of the Business for VAT purposes which are required to be
preserved by the Purchaser by section 49(1)(b) of the Value Added
Tax Act 1994, and the Purchaser shall, for a period of not less
than six years from the Completion Date, preserve the records so
delivered and, upon reasonable notice, during normal
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
business hours make them available for inspection to the Vendor or
its agent.
17.5 The Purchaser confirms that it will be registered for VAT and will
carry on the Business as a going concern immediately after
Completion.
17.6 The Purchaser confirms that it shall not apply for a reallocation
of the Vendor's VAT registration number.
17.7 The Vendor agrees that it will not at any time before Completion
without the consent of the Purchaser exercise its right under VAT
1994 Schedule 10 paragraph 2 to elect to tax the Property.
18. CAPITAL GOODS SCHEME
The Vendor will provide the Purchaser with all records and other
information required by the Purchaser for the purposes of the Capital
Goods Scheme in Part XV Value Added Tax Regulations 1995 (SI1995/2518)
and any adjustments thereunder.
19. FURTHER ASSURANCE
19.1 Upon and at any time after Completion the Vendor shall at the
request of the Purchaser and at the Vendor's cost do and execute
or procure to be done and executed all such acts deeds documents
and things as may be reasonably necessary to vest the title to the
Business and Assets in the Purchaser and to give effect to this
agreement.
19.2 The Vendor will use all reasonable endeavours to ensure that all
relevant authorisations, permissions, consents, licences or
agreements are (where necessary) transferred to the Purchaser or,
as the case may be, renewed. In particular, but without
limitation, the Vendor shall assist the Purchaser in making
application to or providing information to any relevant authority
for the purpose of such transfer or renewal.
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
19.3 Without prejudice to the terms of clause 19.1 the Vendor shall at
the request of the Purchaser and at the Vendor's cost, execute or
procure to be done and executed all such acts, documents and
things as may be necessary or desirable in connection with:
19.3.1 the loss of the original title deeds to the Property; and
19.3.2 the application by the Purchaser to register the title to
the Property.
19.4 The Vendor will at any time after Completion, at the Purchasers
cost and at the request of the Purchaser execute such documents
and give such assistance as is reasonable in ensuring that a
secure and adequate supply of water is available to the Property
for the purpose of the Business.
20. DISPUTE RESOLUTION
If there is a dispute between the Vendor and the Purchaser, pursuant to
Clause 8.4 and/or 13.4, which the Vendor's Accountants and the
Purchaser's Accountants cannot resolve, then the matter in dispute shall
be referred to an independent firm of Chartered Accountants nominated
jointly by them or if no such nomination is made within 14 days after the
expiry of one party requiring nomination, nominated at the request of
either of them by the President for the time being of the Institute of
Chartered Accountants in England and Wales. The Accountants so nominated
shall be entitled to ask for and inspect the working papers, records and
documents of both Parties as they may reasonably consider necessary. In
making their determination, the said Accountants shall act as experts and
not as arbitrators, their decision shall (in the absence of manifest
error) be final and binding on the Parties and their fees shall be borne
and paid by the Vendor and the Purchaser in such proportions as the
Accountants determine in the light of the
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
respective contentions of the Parties, and the Accountants'
determination.
21. SECONDMENT
21.1 The Vendor undertakes to use its best endeavours to procure that
at least 40 Employees are seconded during the period from
Completion to 31 December 1998 to a Vendor Group Company on the
terms set out in the Secondment Letter. The Vendor shall:
21.1.1 make available, within the Vendor's Group, 40 suitable
positions for secondees of the Business;
21.1.2 identify (after consultation with the Purchaser) 40
Employees suitable for secondment, and not required for the
Business during the period from Completion to 31 December
1998;
21.1.3 make proposals, as soon as practicable, to such Employees
for their secondment; and
21.1.4 use its reasonable endeavours to persuade such Employees to
accept its offer of secondment which may include increasing
relocation/secondment benefits.
21.2 The Purchaser shall, following Completion use its reasonable
endeavours to persuade such Employees to accept the offer of
secondment made to them.
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
22. ANNOUNCEMENTS
No announcement, communication or circular in connection with the subject
matter of this agreement shall be made (prior to or after the Completion
Date) by or on behalf of the Vendor or the Purchaser without the prior
approval of the other (such approval not to be unreasonably withheld or
delayed) save for:-
22.1 announcements to Employees, customers, suppliers and agents of the
Purchaser and the Business in such form as may be agreed between
the Parties; and
22.2 such announcements, documents, and other information as may be
required by any recognized stock exchange or the Securities
Exchange Commission and/or as required under the Securities Act of
1933 and the Securities Exchange Act of 1934 or which would be
customary for the Purchaser to make to investors, stockholders,
analysts and within the Purchaser's Group.
23. COSTS
Subject to the provisions of Clause 15 each of the Parties shall bear and
pay its own legal, accountancy and other fees and expenses incidental to
the preparation and implementation of this agreement and all other
documents in the agreed form referred to herein.
24. SUCCESSORS AND ASSIGNMENT
No Party may assign or transfer, or purport to assign or transfer, any of
its rights or obligations under this agreement, save that the Purchaser
shall be entitled to assign the benefit of the Warranties to any company
in the Purchaser's Group.
25. ENTIRE AGREEMENT
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
25.1 This agreement (together with the documents referred to in it) and
the Secrecy Agreement constitute the entire agreement between the
parties in connection with its subject matter.
25.2 Neither Party has relied on any representation or warranty except
as expressly set out in this agreement.
26. TIME OF THE ESSENCE
As regards any time date or period mentioned in this agreement time shall
be of the essence.
27. NOTICES
Any notice to be given pursuant to the terms of this agreement must be
given in writing to the Party due to receive such notice at its
registered office from time to time or at its address set out in this
agreement or such other address as may have been notified for the purpose
to the other Parties in accordance with this clause. Notice shall be
delivered personally or sent by first class pre-paid recorded delivery or
registered post (air mail if overseas) or by facsimile transmission and
shall be deemed to be given in the case of personal delivery on delivery
and in the case of posting (in the absence of evidence of earlier
receipt) within 48 hours after posting (6 days if sent by air mail) and
in the case of facsimile transmission on completion of the transmission.
28. AGREEMENT CONTINUES IN FORCE
This agreement shall remain in full force and effect so far as concerns
any matter remaining to be performed at Completion and notwithstanding
that Completion shall have taken place and in respect of any indemnities
and undertakings on the part of the Vendor (including without prejudice
to the generality those contained in Clauses 16 and 19, the Vendor shall
at the Purchaser's request but at the Vendor's cost grant to the
Purchaser, at intervals of not less than four years,
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
written confirmation (in such form as the Purchaser may require) that
this Clause remains fully binding on the Vendor notwithstanding the
passage of time.
29. SEVERABILITY
The invalidity, illegality or unenforceability of any provision of this
agreement shall not affect the continuation in force of the remainder of
this agreement.
30. WAIVER
No waiver by the Purchaser of any breach or non-fulfilment by the Vendor
of any provision of this agreement shall be deemed to be a waiver of any
subsequent or other breach of that or any other provision hereof and no
failure to exercise or delay in exercising any right or remedy under this
agreement shall constitute a waiver thereof. No single or partial
exercise of any right or remedy under this agreement shall preclude or
restrict the further exercise of any such right or remedy. The rights and
remedies of the Purchaser provided in this agreement are cumulative and
not exclusive of any rights and remedies provided by law.
31. VARIATIONS
No variation of this agreement or any of the documents in the agreed
terms shall be valid unless it is in writing and signed by or on behalf
of each of the Parties.
32. COUNTERPARTS
This agreement may be executed in any number of counterparts each of
which when executed by one or more of the Parties shall constitute an
original but all of which shall constitute one and the same instrument.
33. FUNDING
The Vendor shall give due consideration prior to Completion to any
comments made by funders of the
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
Purchaser's Group in relation to the terms of this agreement.
34. GOVERNING LAW
34.1 Subject to the provisions of Clause 34.2 below, this agreement
shall be governed by and construed in accordance with English Law
and, subject to Clause 20, the Parties hereby submit for all
purposes in connection with this agreement to the exclusive
jurisdiction of the English Courts.
34.2 The provisions of Schedule 3 and the Property Warranties are to be
interpreted in accordance with Scots Law.
AS WITNESS the hands of the Parties or their duly authorized representatives the
day and year first above written
SIGNED by )
for and on behalf of GLAXO ) /s/ Dr. G. Joseph Blaker
GROUP LIMITED in the presence of:- )
Dr. G. Joseph Blaker
Witness
Name
Address
SIGNED by )
for and on behalf of ) /s/ Michael A. Griffith
CHIREX (ANNAN) LIMITED )
in the presence of:- ) Michael A. Griffith
Witness
Name
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
Address
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
SCHEDULE 1
Part 1
Apportionment of Purchase Price
================================================
Asset Purchase Price
- ------------------------------------------------
Contracts (pounds)1
- ------------------------------------------------
Equipment (pounds)24,000,000
- ------------------------------------------------
Fixed Plant (Non (pounds)1,000,000
Qualifying)
- ------------------------------------------------
Fixed Plant (pounds)5,000,000
(Qualifying)
- ------------------------------------------------
Goodwill (pounds)7,000,000
- ------------------------------------------------
Intellectual (pounds)1
Property
- ------------------------------------------------
Property (pounds)2,999,998
- ------------------------------------------------
Stock/Work in as determined under
Progress Clause 8
================================================
Part 2
Excluded Assets
1. Cash;
2. All Finished Products;
3. The rights to use the name Glaxo, Wellcome, Glaxo Wellcome or their
respective logos;
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
4. Any amounts recoverable by members of the Vendor's Group in respect of
Tax and VAT allowances and repayments attributable to matters or events
occurring on or before Completion;
5. The benefit of any insurance claims arising prior to Completion in
relation to the Business save where such claims relate to Assets to be
acquired by the Purchaser under this agreement; and
6. All Book Debts.
7. All intellectual property in respect of the products manufactured at any
time at the Property by any member of the Vendor's Group.
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
SCHEDULE 2
The Property
(In the First Place) (Primo) ALL and WHOLE the Farm of Waterfoot, Annan, part of
the Estate of Newbie in the County of Dumfries extending to one hundred and
sixty two acres and one hundred and forty three decimal or one thousandth parts
of an acre or thereby being the subjects described in and disponed by and
delineated and shown within red lines on the plan annexed and executed as
relative to the Disposition by Newbie Estates (in voluntary liquidation) and
David Simpson Carson, the Liquidator thereof, in favor of Newbie Salmon
Fisheries Limited dated Seventh and recorded in the Division of the General
Register of Sasines for the County of Dumfries on Nineteenth both days of
January Nineteen hundred and Fifty five: Together with the foreshore of the
Solway Firth and of the River Annan ex adverso the said subjects: BUT EXCEPTING
ALWAYS from the said subjects the whole of the salmon and other fishing rights
ex adverso the same; (Secundo) ALL and WHOLE that lot or piece of ground
extending to one thousand one hundred and twenty five square yards or thereby
being the south-west corner of the field marked number 847 on the Ordnance
Survey map of the Parish of Annan in the County of Dumfries being the subjects
described in and disposed by and delineated and coloured red on the Plan annexed
and subscribed as relative to the Feu Charter by William Dalziel MacKenzie in
favor of himself and Patrick Alexander Pasley Dirom and another, as Trustees for
behoof of the District Board of the River Annan, dated Third and recorded in the
said Division of the General Register of Sasines on Seventeenth both days of
October Nineteen hundred and Ninety three; (Tertio) ALL and WHOLE that area of
ground in the County of Dumfries on which was erected the subjects known as
Newbie Villa being the subjects described in and disponed by and shown outlined
in red on the excerpt of the Ordnance Survey map annexed and executed as
relative to the Disposition by Newbie Salmon Fisheries (Property) Limited in
favor of Glaxo Properties Limited dated Twenty seventh September and recorded in
the said Division of the General Register of Sasines on Sixteenth December both
months in
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
Nineteen hundred and Seventy six; and (Quarto) ALL and WHOLE that area of ground
in the County of Dumfries being the subjects described in and (in the Second
Place) disponed by and shown coloured blue between the points "E" and "F" on the
plan annexed and executed as relative to the Deed of Servitude (containing
Disposition and Assignation) by the Rt. Hon. John Frederick, Baron Gretton,
David Stewart Bowser and John Gerard Freeman, as Trustees therein mentioned, in
favor of Glaxo Properties Limited dated Third, Fourteenth and Nineteenth July
Nineteen hundred and Seventy eight and recorded in the said Division of the
General Register of Sasines on Eighth April Nineteen hundred and Eighty; (In the
Second Place) ALL and WHOLE that irregular shaped area or plot of ground in the
County of Dumfries extending to two hundred and twenty square metres or thereby
lying to the south-east of Three Trees Road, Newbie, Annan being the area or
plot of ground more particularly described in, disponed (In the First Place) by
and shown delineated in red on Plan A annexed and executed as relative to
Disposition by Northern Engineering Industries Limited in favor of Glaxo
Operations UK Limited dated Eighteenth April and recorded in the said Division
of the General Register of Sasines on Eleventh June both months in Nineteen
hundred and Eighty TOGETHER WITH (One) the whole buildings and other erections
thereon; (Two) the whole parts, privileges, rights and pertinents thereof or
otherwise offering thereto including without prejudice to the foregoing
generality the servitude and other rights granted in favor of the said subjects
or any part thereof in (a) Deed of Servitude granted by Joseph Robinson in favor
of Glaxo Properties Limited dated Seventh and recorded in the said Division of
the General Register of Sasines on Twenty eighth both days of March Nineteen
hundred and Seventy eight; (b) Deed of Servitude granted by Neil Graham in favor
of Glaxo Properties Limited dated Thirty first March and recorded in the said
Division of the General Register of Sasines on Seventh April both months in
Nineteen hundred and Seventy eight; (c) the said Deed of Servitude (containing
Disposition and Assignation) granted by the Rt. Hon. John Frederick, Baron
Gretton, David Stewart Bowser and John Gerard Freeman, as Trustees therein
mentioned, in favor of Glaxo Properties Limited; (d) Grant of Servitude granted
by the Secretary of State for Defence in favor of Glaxochem
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
Limited dated Eighteenth September Nineteen hundred and Eighty four and recorded
in the said Division of the General Register of Sasines on Thirtieth January
Nineteen hundred and Eighty five; and (e) Minute of Agreement and Deed of
Excambion between Royal Ordnance plc, the Trustees of Edward William Brook and
Glaxochem Limited dated Twenty fifth and Thirtieth August and Twenty eighth
October both months in Nineteen hundred and Ninety three and Twenty first March
Nineteen hundred and Ninety four and recorded in the said Division of the
General Register of Sasines for publication and also as in the Books of the
Lords of Council and Session for preservation on Third June Nineteen hundred and
Ninety four; (In the Third Place) ALL and WHOLE (FIRST) that rectangular piece
of ground lying on the right bank of the River Annan and on the north-east side
of Milnby Quarry together with the access road leading thereto comprising part
of area number 0900 in the County of Dumfries on the 1:2500 inch Ordnance Survey
map NY1867 and being the subjects shown delineated black and coloured pink on
the plan annexed and executed as relative to the said Minute of Agreement and
Deed of Excambion among Royal Ordnance plc, the Trustees of Edward William Brook
and Glaxochem Limited dated Twenty fifth and Thirtieth August and Twenty eighth
October both months in Nineteen hundred and Twenty three and Twenty first March
nineteen hundred and ninety four and recorded in the said Division of the
General Register of Sasines on Third June Nineteen hundred and Ninety four and
(SECOND) that oblong area of ground comprising compartment 4404 in the said
County situated on the north-eastern corner of area number 0002 on the 1:2500
inch Ordnance Survey map NY1867 and being the subjects shown delineated black
and coloured pink on the said plan annexed and signed as relative to the said
Minute of Agreement and Deed of Excambion dated and recorded as aforesaid
TOGETHER WITH (One) the whole buildings and erections on the said subjects
including, without prejudice to the foregoing generality, the pump house erected
on the subjects (FIRST) described and the pumping station erected on the
subjects (SECOND) described; (Two) the whole parts, privileges, rights and
pertinents offering to the subjects including, without prejudice to the
foregoing generality, the heritable and irredeemable servitude and other rights
specified in the
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
Disposition by Newbie Estates in favor of the Minister of Supply in trust as
therein mentioned dated Fifth May Nineteen hundred and Forty three and recorded
in the said Division of the General Register of Sasines on Twenty sixth December
Nineteen hundred and Forty four; (Three) entry to the subjects by existing roads
and ways used for that purpose.
Declaring that the various servitude rights constituted in favor of the subjects
above described (In the First Place) by the said five deeds, and any other
servitudes in favor of such subjects which may be constituted by possession,
shall in this agreement and the Schedules thereto be referred to as "the
Servitudes", and the whole heritable subjects above described, under exception
of the Servitudes, shall in the this agreement and the Schedules thereto be
referred to as "the Subjects", declaring that the Subjects shall be deemed to
comprise the whole of the Property under exception only of the Servitudes.
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
SCHEDULE 3
Terms and Conditions of Sale of the Property
1. EXHIBITION OF TITLE/DELIVERY OF DEEDS
1.1 The Vendor warrants that no application has been made for
registration of title to any part of the Property in the Land
Register.
1.2 On the Completion Date the Vendor shall deliver to the Purchaser a
subscribed Disposition in favor of the Purchaser or its nominees,
which shall if the Purchaser requires have attached to it a
taxative plan of the Property acceptable to the Purchaser and
complying with the specific plan requirements of the Keeper as
published from time to time and a subscribed Deed of Servitude in
favor of the Purchaser or its nominees in respect of the Water
Supply in terms of the draft annexed hereto (Annex 3) and shall
exhibit or deliver a valid and marketable title to the Property
(including without prejudice to the generality both the Subjects
and the Servitudes) together with:
1.2.1 clear Searches in the Register of Sasines for 40 years (or
if longer from the date of the prescriptive writ) and in
the Register of Inhibitions and Adjudications for the
prescriptive period; and
1.2.2 a Form P16 Report confirming that the Keeper can identify
the Property on the relevant Ordnance Survey Sheet, a Form
10 Report brought down to a date as near as practicable to
the Completion Date disclosing no entries adverse to the
Vendor's interest, and such documents or evidence,
including a plan or plans, as the Keeper may require to
enable the Keeper to issue a Land Certificate or Land
Certificates in name of the
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
Purchaser or its nominees (as the case may be) as the
registered proprietor of the Property (including without
prejudice to the generality the Servitudes) and containing
no exclusion of indemnity in terms of Section 12(2) of the
1979 Act.
1.3 There will also be delivered by the Vendor to the Purchaser on the
Completion Date:
1.3.1 Searches/Reports in the Register of Charges/Mortgage
Register and Company File against any company (including
the Vendor) having an interest in the Property within the
period of 10 years prior to the Completion Date; such
Searches/Reports, continued to a date 22 days after the
date such company divested itself of its interest in the
Property, shall be clear of entries prejudicial to the
ability of the Vendor to grant a valid unencumbered title
to the Property in name of the Purchaser or its nominees;
1.3.2 in relation to the document in terms of which any company
referred to in paragraph 1.3.1 divested itself of its
interest in the Property, evidence that at the time of
signature any person bearing to sign that document as a
Director or Secretary of such company was such a Director
or Secretary, and that any person signing that document on
behalf of such company bearing to have been authorized to
do so was authorized to do so;
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
1.3.3 in the case of any body corporate (including the granter of
said Disposition) having an interest in the Property within
the period of 10 years prior to the Completion Date,
evidence that, at the time of signature of any document in
terms of which such body corporate divested itself of its
interest in the Property, all persons signing that document
on behalf of such body corporate were authorized to do so
whether in their capacity as office holders of such body
corporate or otherwise, except where authority so to sign
is presumed under the Requirements of Writing (Scotland)
Act 1995;
1.3.4 a subscribed Assignation of the Water Extraction Consents
in the form annexed hereto (Annex 2) completed as
appropriate;
1.3.5 Dundas & Wilson's Letter of Obligation in the form annexed
hereto (Annex 4) completed as appropriate and duly
subscribed;
1.3.6 any other items required to be delivered on the Completion
Date in terms of any other provision of this Schedule 3.
2. VENDOR'S POST-SETTLEMENT OBLIGATIONS REGARDING TITLE
2.1 The Vendor shall procure that the Land Certificate(s) to be issued
to the Purchaser or its nominees (as the case may be) in respect
of the whole of the Property will disclose no entry, deed or
diligence prejudicial to the Purchaser's or its nominees' interest
other than such as are created by or against the Purchaser or its
nominees or have been disclosed to and accepted by the Purchaser
in terms of this agreement.
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
2.2 The Vendor shall exhibit or deliver to the Purchaser within twenty
days of written demand such documentation, evidence and others
(including plans) as may be requisitioned by the Keeper in
connection with the registration of the interest of the Purchaser
or its nominees (as the case may be) in respect of the whole or
any part of the Property in the Land Register.
3. THE GRAZING LEASE
It shall be an essential condition of this agreement that within 21 days
of the execution thereof the Vendor shall deliver to the Purchaser a
subscribed statement and undertaking issued by Messrs J.M. & J. Goldie,
Newbie Mains, Annan as tenant under the Grazing Lease, and each of the
individual Partners thereof, confirming that their sole entitlement to
occupy the subjects of the Grazing Lease is in terms of the Grazing
Lease, and without prejudice to the generality no agricultural tenancy
has been created in respect of the subjects of the Grazing Lease, either
by the Grazing Lease or otherwise, and undertaking to remove from the
subjects of the Grazing Lease on or before 30 November 1997.
4. APPORTIONMENTS ETC
The sums due to the Vendor under the Grazing Lease and the Hoddam
Agreement shall be apportioned between the Vendor and the Purchaser as at
the Completion Date, and the apportionment in respect of the Hoddam
Agreement shall be calculated on the basis of a meter reading taken at
close of business on the day preceding the Completion Date. The Vendor
shall indemnify the Purchaser fully against any and all liability which
the Purchaser may incur in relation to any breach of the terms of the
Grazing Lease or the Hoddam Agreement by the Vendor prior to the
Completion Date.
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
5. ASSIGNATION OF RIGHTS
On or prior to the Completion Date the Vendor shall deliver to the
Purchaser a subscribed assignation in favor of the Purchaser or its
nominees assigning to the Purchaser all rights which the Vendor shall
have in respect of the design, construction, manufacture, assembly or
installation of any buildings, structures, civil engineering or other
similar works, plant and equipment, machinery and fixtures and fittings
on or in the Property, along with certified true copies of all
documentation (or alternatively a warranted statement confirming the
whole terms and conditions of the contract) on the basis of which any
such buildings or others were constructed or otherwise as aforesaid,
together with evidence that any requisite consent to such assignation has
been granted, and that in the form annexed hereto (Annex 5) (completed as
appropriate).
6. THE ACCESS AGREEMENT
Following Completion the Vendor shall notify the relevant authority of
the disposal of its interest in the Property as required by Clause FIRST
of the Access Agreement.
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
SCHEDULE 4
Pensions
Part 1: Disclosed Schemes
The Glaxo Wellcome Pension Scheme
The Glaxo Wellcome Contracted Out Money Purchase Scheme
Part 2: Transfer Provisions
1 Definitions
1.1 In this Part of this Schedule the following expressions shall have
the following meanings:
"Actuary" a Fellow of the Institute of
Actuaries or a Fellow of the
Faculty of Actuaries in
Scotland or a firm employing
such persons;
"Actuary's Letter" the letter from the Vendor's
Actuary to the Purchaser's
Actuary dated 10 September 1997
a copy of which is annexed to
this Schedule;
"Adjusted Transfer (a) in relation to transfers
Requirement" Requirement" from the Vendor's
Scheme in respect of FS
Benefits, the Pension
Liabilities multiplied by the
Timing Adjustment in respect of
the period from and including
the Completion Date to but
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
excluding the Due Date; and
(b) in relation to transfers from
the Vendor's Scheme in respect
of MP Benefits an amount
representing at the Due Date
the aggregate of the member's
accounts to which the
Consenting Members acquire a
right on ceasing to be in
pensionable service under the
Vendor's Scheme at the
Completion Date;
"Consenting Members" means those Transferring
Members who have submitted
Transfer Forms to the Vendor's
Scheme not later than 13 weeks
after the later of
(a) being advised by the trustees
of the Purchasers Scheme of the
benefits to be provided for
them in respect of any transfer
made in respect of them
pursuant to this Schedule; and
(b) the Completion Date
and who do not withdraw such
consent prior to payment of the
Transfer Amount;
"Approval" approval by the Board of Inland
Revenue as an
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
exempt approved scheme for the
purposes of Chapter I of Part
XIV of the Taxes Act;
"Due Date" the first working day one week
after the satisfaction of the
last to be satisfied of the
Transfer Conditions;
"FS Benefits" means the benefits to which a
Consenting Member is entitled
or prospectively and
contingently entitled and which
are determined on a final
salary basis under the Vendor's
Scheme;
"Independent Actuary" an Actuary who is nominated by
the Vendor and the Purchaser
jointly or, if they cannot
agree, by the President of the
Institute of Actuaries on
application by either the
Vendor or the Purchaser;
"MP Benefits" means the Benefits
(disregarding any additional
voluntary contributions and
benefits derived from them) to
which a Consenting Member is
entitled or prospectively and
contingently entitled and which
are determined on a money
purchase basis under the
Vendor's Scheme;
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
"Pensionable Salary" such remuneration of the
Relevant Employees as in each
case is pensionable in
accordance with the governing
documentation of the Vendor's
Scheme;
"Pension Liabilities" as defined in the Actuary's
Letter;
"Pensionable Service" such service of the Relevant
Employees as in each case is
used for the purpose of
calculating pension benefits
under the Vendor's Scheme;
"Purchaser's Actuary" the Actuary appointed by the
Purchaser from time to time for
the purposes of this Schedule;
"Purchaser's Scheme" the ChiRex Pension Scheme
established by an interim trust
deed dated 5 February 1996 (or
where the context so requires,
the trustees for the time being
of that scheme);
"Relevant Employees" those Employees who at
Completion are active members
of the Vendor's Scheme;
"Timing Adjustment" as defined in the Actuary's
Letter;
"Transfer Amount" the amount (if any) which the
Vendor's Scheme pays to the
Purchaser's Scheme
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separately with the Commission.
in respect of the Consenting
Members;
"Transfer Conditions" all of the following:
(1) the Board of Inland Revenue has
given its written approval to
the transfer of assets from the
Vendor's Scheme to the
Purchaser's Scheme in respect
of the Transferring Members and
that approval still subsists;
(2) the Vendor's Scheme has
received the Transfer Forms
from Consenting Members; and
(3) the amount of the Pension
Liabilities has become final
and binding whether by
agreement under paragraph 4 or
following determination of any
dispute under paragraph 7;
"Transfer Form" means the document (prepared in
such form as the Vendor and the
Purchaser shall agree: such
agreement not to be
unreasonably withheld or
delayed) which shall include a
discharge in favor of the
Vendor's Scheme which each
Consenting Member signs
confirming his request
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separately with the Commission.
for or consent to a payment or
transfer being made from the
Vendor's Scheme to the
Purchaser's Scheme for and in
respect of him and under which
he exercises his right in
relation to his cash equivalent
in accordance with the
provisions of Part IV of
Chapter IV of the 1993 Act so
as to acquire transfer credits
or other rights under the
Purchaser's Scheme;
"Transferring Members" those Relevant Employees who
become members of the
Purchaser's Scheme with effect
from Completion Date pursuant
to the offer of membership
referred to in paragraph 2
below and whose names shall be
provided to the Vendor by the
Purchaser within 28 days of the
Completion Date;
"Vendor's Actuary" the Actuary appointed by the
Vendor from time to time for
the purposes of this Schedule;
"Vendor's Scheme" the Glaxo Wellcome Pension
Scheme (or, where the context
so requires, the trustees of
that scheme);
"1993 Act" the Pension Schemes Act 1993;
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
"1995 Act" the Pensions Act 1995
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
2 The Purchaser's Scheme
The Purchaser undertakes to the Vendor that:-
2.1 the Purchaser shall procure that not later than 14 days after
Completion Date all Relevant Employees who have not reached their
retirement date or otherwise ceased to be active members under the
Vendor's Scheme shall be invited in writing to become members of
the Purchaser's Scheme with effect from the Completion Date. The
invitations must be consistent with this Schedule and in this
respect they shall be subject to the prior approval of the Vendor
(which shall not be unreasonably withheld or delayed). For the
avoidance of doubt any Relevant Employee who dies between the
Completion Date and the date on which the Relevant Employee either
becomes a member of the Purchaser's Scheme or is deemed under the
terms of the invitation to have rejected the invitation shall be
provided with lump sum death in service benefits and survivor's
benefits as if he or she had been a member of the Purchaser's
Scheme with effect from the Completion Date;
2.2 the Purchaser's Scheme shall at the Completion Date either have
received Approval or be capable of receiving Approval and be a
scheme to which the Vendor's Scheme can make a transfer payment
without prejudicing the Approval of the Vendor's Scheme;
2.3 the Purchaser undertakes that in respect of the Transferring
Members and their service with the Purchaser from the Completion
Date benefits will be provided (subject to the terms of the
Purchaser's Scheme relating to amendment and discontinuance) on
the same basis as they are provided for other employees of the
Purchaser under that scheme.
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
3 Calculation of the Transfer Requirement
3.1 Within a period of 2 months following the Completion Date the
Vendor shall procure that the Vendor's Actuary receives all
material information under the Vendor's control which is necessary
to calculate the Pension Liabilities and the Purchaser shall
procure that the Vendor's Actuary receives all material
information under the Purchaser's control required to calculate
the Pension Liabilities;
3.2 Within a period of 2 months following the receipt by the Vendor's
Actuary of the complete, true and accurate information required to
calculate the Pension Liabilities, the Vendor shall procure that
the Vendor's Actuary calculates the Pension Liabilities and
submits his results in writing to the Purchaser's Actuary for
verification by the Purchaser's Actuary together with such
information as the Purchaser's Actuary may reasonably require for
the purpose of verifying the Vendor's Actuary's calculations;
3.3 At the date which is 2 months after the date of receipt by the
Purchaser's Actuary of details of the calculations described in
3.2 above the Purchaser's Actuary shall be deemed to have agreed
to those calculations and to the amount of the Pension Liabilities
so calculated unless he shall within that time have notified the
Vendor's Actuary in writing to the contrary;
3.4 If the Vendor's Actuary and the Purchaser's Actuary cannot agree
the amount of the Pensions Liabilities within a period of 3 months
after the date of receipt by the Purchaser's Actuary of details of
the calculations described in 3.3 above (or such earlier or later
date as the Vendor and the Purchaser may agree), then either the
Vendor or the Purchaser may require by notice in writing to the
other the amount of the Pension Liabilities
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
to be determined by an Independent Actuary in accordance with
paragraph 7 below.
4 Payment of the Transfer Requirement and Provision of Benefits
4.1 The Vendor shall use its reasonable endeavours to procure that the
Vendor's Scheme shall pay the Adjusted Transfer Requirement to the
Purchaser's Scheme on or before the Due Date.
4.2 The Adjusted Transfer Requirement shall be satisfied by the
transfer of such assets (which may include cash in whole or part)
as shall be agreed by the Vendor's Scheme and the Purchaser's
Scheme and in default of agreement shall be in cash.
4.3 Subject to receipt of the Adjusted Transfer Requirement on the Due
Date by the Purchaser's Scheme and/or of any payment which falls
due under paragraph 5 below, the Purchaser will procure that
benefits are provided for and in respect of the Consenting Members
under the Purchaser's Scheme in respect of their service prior to
the Completion Date:
4.3.1 in relation to the FS Benefits of each Consenting Member,
which are of equivalent value overall, in the reasonable
opinion of Purchaser's Actuary and on an actuarial basis
consistent with that set out in the Actuary's Letter, to
those which would have been provided for and in respect of
them under the Vendor's Scheme (as in force at the
Completion Date) on retirement, death or withdrawal if the
Consenting Member had continued in Pensionable Service
under the Vendor's Scheme calculated by reference to
Pensionable Salary at retirement, death
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
or withdrawal but related only to service prior to the
Completion Date; and
4.3.2 in relation to the MP Benefits of each Consenting Member,
which are of equivalent value, in the reasonable opinion of
Purchaser's Actuary, and on an actuarial basis consistent
with that set out in the Actuary's Letter, to the amount
transferred in respect of each of them (which Vendor's
Actuary shall identify to Purchaser's Actuary) pursuant to
para (b) of the definition of Adjusted Transfer
Requirement.
4.4 The Purchaser's Actuary shall certify to the Vendor's Actuary that
the benefits to be provided by the Purchaser's Scheme comply with
paragraph 4.3 above.
5 Adjustments to the Transfer Requirement
5.1 If at the Due Date the Transfer Amount is less than the Adjusted
Transfer Requirement the Vendor shall (subject to paragraph 5.2
below) pay, as an adjustment to the consideration, to the
Purchaser the amount equal to the difference between the Transfer
Amount and the Adjusted Transfer Requirement less the percentage
rate of Corporation Tax applying generally on the Due Date
multiplied by the Timing Adjustment in respect of the period from
the Due Date to the actual date of payment (such amount being
known as "the Shortfall") within a period of 5 working days after
the Due Date.
5.2 No payment shall be due from the Vendor pursuant to paragraph 5.1:
5.2.1 if the reason for the Transfer Amount (or part of it) not
having been
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
transferred to the Purchaser's Scheme at the Due Date is
the failure of the Purchaser's Scheme, for whatever reason,
to accept the whole, or any part of the Transfer Amount, or
if the reason is any other reason outside the control of
the Vendor's Scheme but, if no payment is due from the
Vendor because of any such other reason outside the control
of the Vendor's Scheme, payment will become due (in
accordance with paragraph 5.1) if, and when, such reason
ceases to exist;
5.2.2 unless the Purchaser undertakes in writing to the Vendor to
pay any amount received pursuant to 5.1 above forthwith to
the Purchaser's Scheme.
6 Additional Voluntary Contributions
6.1 Any additional voluntary contributions paid by Consenting Members
to Vendor's Scheme and all benefits derived therefrom on a money
purchase basis shall be disregarded for the purposes of this part
of this Schedule other than this paragraph 6. The Vendor shall use
its reasonable endeavours to procure that on the Due Date the
Vendor's Scheme transfers or procures the transfer to the
Purchaser's Scheme of the amount of any such additional voluntary
contributions paid by the Consenting Members to the Vendor's
Scheme together with accumulated interest or bonuses thereon in
such form (which may include cash in whole or part) as shall be
agreed by the Vendor's Scheme and the Purchaser's Scheme and in
default of agreement shall be in cash;
6.2 The Purchaser shall procure that the Purchaser's Scheme applies
the amount of such transfer as is described in 6.1 above in the
provision of additional benefits on a money purchase basis under
the Purchaser's Scheme for and in respect of
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
each relevant individual Consenting Member who has paid such
additional voluntary contributions.
7 Independent Actuary
Any dispute between Vendor and Purchaser or between Vendor's Actuary and
Purchaser's Actuary about any matters referred to in this Schedule shall,
in the absence of agreement, be referred to an Independent Actuary. The
Independent Actuary will act as an expert and not as an arbitrator. His
decision will (except in the case of manifest error) be final and
binding. His expenses will be borne equally by Vendor and Purchaser or as
he may otherwise direct.
8 Indemnity
The Purchaser shall indemnify and keep indemnified the Vendor on an
after-tax basis against all actions, proceedings, reasonable costs,
claims, damages and reasonable expenses arising from, or in connection
with, any claim brought against the Vendor by, or on behalf of, a
Transferring Member on grounds that the benefits provided under the
Purchaser's Scheme in respect of service after the Completion Date are
inferior to those provided under the Vendor's Scheme immediately prior to
the Completion Date.
Part 3: Warranties
1 Except under the Disclosed Schemes no agreement, arrangement, custom or
practice (whether ex-gratia or otherwise) exists whereby the Vendor is
under any obligation to provide or pay towards the provision of any
relevant benefits (as defined in Section 612(1) Taxes Act with the
omission of the exception to that definition) for any Employee or for any
dependent of any Employee.
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
2 In relation to each Disclosed Scheme full details of the Disclosed Scheme
have been given to the Purchaser including:-
2.1 true and complete copies of the trust deeds rules and other
documents containing the provisions currently governing the
Disclosed Scheme;
2.2 copies of the booklet issued to employees who are or may become
members of the Disclosed Scheme and of all announcements or other
employee literature issued to such employees which detail changes
to the provisions of the Disclosed Scheme which are not
incorporated in the Disclosed Scheme's formal governing documents;
2.3 in relation to a Disclosed Scheme under which some or all of the
benefits are payable on a final salary basis a copy of the last
actuarial valuation;
2.4 a copy of the audited accounts of the Disclosed Scheme for the
last scheme year;
2.5 a list of the Disclosed Scheme's active members setting out all
information required to determine their respective entitlement to
benefits under the Disclosed Scheme;
2.6 full details of any exercise of any power or discretion under the
Disclosed Scheme in relation to the Relevant Employees (as defined
in Part 2 above) to augment benefits or to provide new or
additional benefits which would not otherwise be provided or to
admit to membership any person who would not otherwise be eligible
for membership;
3 In relation to each Disclosed Scheme under which the amount of the
benefits payable to or in respect of a member (other than any insured
lump sum death in service benefits) is based solely on the amount of the
accumulated contributions made to the Disclosed Scheme
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separately with the Commission.
by or in respect of the member together with investment return thereon:-
3.1 as far as the Vendor is aware no written undertaking or assurance
has been made or given to any member of the Disclosed Scheme that
any particular level or amount of benefit (other than insured lump
sum death in service benefit) will be provided for or in respect
of them under the Disclosed Scheme; and
3.2 no contributions due to the Disclosed Scheme have fallen due but
are unpaid.
4 Neither the Vendor nor any other employer participating in a Disclosed
Scheme has any liability to make any payment to the Disclosed Scheme
pursuant to section 75 Pensions Act 1995 (or otherwise) or any
undischarged liability pursuant to Regulation 3 the Occupational Pension
Schemes (Deficiency on Winding Up etc) Regulations 1996.
5 Every employee who has been admitted to membership or offered membership
of a Disclosed Scheme after 31st May 1989 has been admitted to or offered
admission on terms which comply with the requirements of Part 2 of
Schedule 6 to the Finance Act 1989 and the substance of such terms have
been communicated to each such employee in writing.
6 In respect of the Employees the records of each Disclosed Scheme have
been properly and accurately maintained, there has been no such breach of
the trusts of any Disclosed Scheme and there are not in respect of any
Disclosed Scheme any actions suits or claims (other than routine claims
for benefits) outstanding pending or threatened against the trustees or
administrator of the Disclosed Scheme or against the Vendor or any other
employer participating in the Disclosed Scheme and after making
reasonable enquiries the Vendor is not aware of any circumstances which
might give rise to any such claims.
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
7 Each Disclosed Scheme is approved or capable of approval as an exempt
approved scheme (within the meaning of Chapter I of Part XIV Taxes Act)
and there is in force in respect of the employments to which the Glaxo
Wellcome Contracted Out Money Purchase Scheme relates an appropriate
contracting-out certificate under the Pension Schemes Act 1993.
8 In respect of the Employees each Disclosed Scheme has been administered
in accordance with all applicable laws being all relevant statutes and
subordinated legislation of the Parliament of the United Kingdom and all
relevant provisions of the law of the European Communities.
9 Other than as revealed in the documents disclosed to the Purchaser
pursuant to paragraph 2 no undertaking or assurance has been given to any
of the Employees as to the continuance or introduction of or increase or
improvement to any benefits under any Disclosed Scheme which the
Purchaser will be legally required to implement.
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
SCHEDULE 5
Warranties
1 INFORMATION SUPPLIED
All information contained in this agreement (other than in relation to
the Purchaser), all matters contained in the Disclosure Letter, all other
information relating to the Business given by the Vendor or its
accountants or solicitors to the Purchaser or its accountants or the
Purchaser's Solicitors or the Purchaser's Property Solicitors and the
replies to the Purchaser's due diligence enquiries are true, accurate and
complete in every respect and there is no fact or matter relating to the
Business which is known to the Vendor which has not been disclosed in the
Disclosure Letter which renders any such matters or information untrue,
incomplete or misleading or the disclosure of which is material to be
known by a purchaser of the Business and the Assets.
2 CAPACITY
The Vendor has full power and authority to enter into and perform this
agreement which constitutes a binding and enforceable obligation on the
Vendor in accordance with its terms.
3 ACCOUNTS
3.1 The Accounts have been carved out from the historical books and
records of GWO as if the site was a stand alone entity and were
prepared in accordance with the historical cost convention and
present fairly in all material respects the assets and liabilities
of the Business as at the Accounts Date and its profits for the
accounting reference period ended on the Accounts Date and agree
with the Records of the Business. The Financial Statements do not
represent UK statutory financial statements as the site is part of
Glaxo Operations UK Limited.
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
3.2 Without limiting the generality of paragraph ? above the Accounts
disclose all the Assets and either make full provision or reserve
for or, as appropriate, disclose all liabilities whether actual,
contingent, unquantified or disputed and all capital commitments
whether actual or contingent of the Vendor and/or GWO in relation
to the Business as at the Accounts Date.
3.3 Any Slow-Moving Stock included in the Accounts has been written
down appropriately and any Defective, redundant or Obsolete, Stock
or Stock outside of its Shelf-Life has been wholly written off and
the value attributed to the remaining Stock and Work in Progress
does not exceed the lower of cost or net realisable value at the
Accounts Date.
3.4 The audited balance sheets and profit and loss accounts of GWO in
relation to the Business for each of the accounting reference
periods ended on the Accounts Date complied with the requirements
of all relevant laws then in force and with all SSAP's and FRS's
and generally accepted accounting principles of the United Kingdom
then in force.
3.5 The rate of depreciation adopted in the audited balance sheets of
GWO in relation to the Business for each accounting reference
periods ended on the Accounts Date was sufficient for each of the
Fixed Assets of the Vendor in relation to the Business to be
written down to nil by the end of its useful life.
3.6 Except as stated in the audited balance sheets and profit and loss
accounts of GWO in relation to the Business for each of the
accounting reference periods ended on the Accounts Date no changes
in the policies of accounting have been made therein for any of
those periods and the method of valuing Stock and Work in Progress
and the basis of depreciation and amortization adopted has been
consistent during each of those periods.
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
3.7 The profits shown by the audited profit and loss accounts of GWO
in relation to the Business for each of the accounting reference
periods ended on the Accounts Date have not (except as therein
disclosed) been affected by any extraordinary or exceptional item
or by any other factor rendering such profits for all or any of
such periods unusually high or low.
3.8 The Management Accounts have been prepared in accordance with
generally accepted accounting policies and accurately state the
assets and liabilities and turnover and profit before taxation of
the Business for the period from 31 December 1996 to the last date
to which management accounts are available prior to Completion.
4 POSITION SINCE 31 DECEMBER 1996
4.1 Since 31 December 1996:-
4.1.1 the Business has been carried on in the ordinary and usual
course as regards the nature, extent and manner of carrying
it on; and
4.1.2 there has been no deterioration either in the financial or
trading position or in the prospects of the Business; and
4.1.3 there has been no deterioration by reference to the
International Active suppliers Production Plan Model in the
expected demand for Product to be produced by the Business
over the period of 5 years after the Completion Date.
4.2 Without prejudice to the generality of paragraph 4.1 since 31
December 1996:-
4.2.1 neither the Vendor nor GWO has in relation to the Business
acquired or disposed of or agreed to acquire or
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
dispose of any business or any material asset or assumed or
acquired any material liability (including a contingent
liability) otherwise than in the ordinary course of
business;
4.2.2 GWO has paid the creditors of the Business in accordance
with their respective credit terms and there are no amounts
owing by the Vendor/GWO which have been due for more than 6
weeks beyond their normal credit terms;
4.2.3 no debtor relating to the Business has been released by the
Vendor on terms that he pays less than the book value of
his debt and no debt owing to the Vendor/GWO in relation to
the Business has been deferred, subordinated or written off
or has proved to any extent irrecoverable and all book
debts at the date hereof are good and will be recoverable
in full on their respective due dates in the ordinary
course;
4.2.4 neither the turnover nor the expenses (direct or indirect)
nor the trading position nor the margin of profitability of
the Business shows any material deterioration by comparison
with the turnover, expenses, trading position and margin of
profitability of the Business for the corresponding period
from 31 December 1995 to 31 December 1996;
4.2.5 no contract or commitment (whether in respect of capital
expenditure or otherwise) has been entered into by the
Vendor or GWO in relation to the Business which is of an
unusual or long term nature or which was entered into
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
otherwise than in the ordinary course of the Business;
4.2.6 save in relation to the design and development work which
the Purchaser has agreed is necessary at the Property to
facilitate the production of ****, neither the Vendor nor
GWO has incurred nor agreed to incur any capital
expenditure in relation to the Business;
4.2.7 neither the Vendor nor GWO has reduced or increased the
levels of stocks or raw materials and spares and
replacement parts in relation to the Business to a material
extent and such stocks are adequate for the current needs
of the Business.
5 TAXATION
5.1 Neither the Vendor nor GWO is involved in any dispute with the
Inland Revenue HM Customs & Excise or other fiscal authority
concerning any matter which could affect the Business or any of
the Assets in any way.
5.2 There is no unsatisfied liability to capital transfer tax or
inheritance tax attached or attributable to any of the Assets and
the Assets are not subject to an Inland Revenue charge as
mentioned in Section 237 Inheritance Tax Act 1984.
5.3 No person has a power of sale or mortgage or the right to charge
on any of the Assets in the circumstances mentioned in Section 212
Inheritance Tax Act 1984.
5.4 No security has been given over any of the Assets in favour of the
Commissioners for Customs and Excise under the provisions of
paragraph 4 of Schedule 11 Value Added Tax Act 1994.
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
5.5 No election has been made and no election will be made on or
before Completion under paragraph 2 of Schedule 10 Value Added Tax
Act 1994 in relation to any of the Property.
5.6 Neither the Vendor nor GWO has received notice of an election
under paragraph 2 Schedule 10 Value Added Tax Act 1994 from the
holder of any interest immediately superior to that held by the
Vendor in respect of any of the Property.
5.7 None of the Assets is a capital item the input tax on which may be
subject to adjustment under Part VA Value Added Tax (General)
Regulations 1985.
5.8 All documents in the possession or under the control of the
Vendor/GWO or to the production of which the Vendor/GWO is
entitled which are necessary to establish the title of the Vendor
to any Asset and which attract stamp duty in the United Kingdom or
elsewhere have been properly stamped and no documents are outside
the United Kingdom which would attract duty if they were brought
into the United Kingdom.
6 BUSINESS NAME
The Vendor/GWO does not use any name for any purpose in connection with
the Business other than its full corporate name.
7 LICENCES AND CONSENTS
The Vendor and/or GWO has obtained all licences, permissions,
authorisations and consents required for the proper carrying on of the
Business (details of which are set out in the Disclosure Letter). All
such licences, permissions, authorisations and consents are in full force
and effect and neither the Vendor nor GWO is in breach of any of the
terms and conditions attached thereto and there are no circumstances
known to the Vendor which indicate that any of such licences,
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Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
permissions authorisations or consents may be revoked or not renewed in
whole or in part in the ordinary course of events nor are there any
circumstances known to the Vendor and/or GWO which indicate that
equivalent licences, permissions, authorisations, or consents on no less
favourable terms would not be granted to the Purchaser following its
acquisition of the Business.
8 THE PROPERTY AND ENVIRONMENTAL MATTERS
Title
8.1 The Property comprises all the land and premises and heritable
property and rights owned, occupied or otherwise used by the
Vendor/GWO in connection with the Business.
8.2 GWO is the heritable proprietor of the Property and (save to the
extent (if any) fully disclosed in the Disclosure Letter) no other
party has any right, title or interest in or to the Property, and
all plant and equipment and fixtures and fittings on, at, or in
the Property are the absolute property of GWO, free from any lien
or encumbrance.
8.3 GWO has a good and marketable title to the Property free from all
questions or doubts and (in particular) where GWO or its
predecessors in title has prior to the date hereof sold off land
adjoining or near to the Property there were excepted and reserved
to the Vendor all necessary and appropriate servitudes and other
rights for the benefit of the Property.
8.4 Any information contained in the Disclosure Letter as to the terms
of any leases or licences which have been granted over any part of
the Property is true and accurate in all material respects.
8.5 GWO's title has been recorded in the General Register of Sasines,
but no application has been
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Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
made in respect of the Property in the Land Register.
8.6 The Deeds and Documents comprise all deeds or documents or written
agreements which constitute, vary or otherwise affect GWO's title
to the Property.
Encumbrances
8.7 The Property is free from any standard security, floating charge
or other lien or charge or incumbrance securing the repayment of
monies or other obligation or liability, whether of the Vendor/GWO
or any other party.
8.8 The Property is not subject to any liability for the payment of
any outgoings other than non-domestic rates, water and sewerage
rates, and insurance premiums.
8.9 Save as may be disclosed in the Deeds and Documents the Property
is not subject to any leases, burdens, restrictions, stipulations,
servitudes, licences, grants, exceptions or reservations,
overriding interests or other such rights the benefit of which is
vested in third parties nor any agreement to create the same.
8.10 Where any such matters as are referred to in Paragraphs 8.7, 8.8
and 8.9 have been disclosed in the Disclosure Letter the
obligations and liabilities imposed and arising under them have
been fully observed and performed in all material respects and all
payments in respect of them due and payable have been duly paid.
8.11 The Property is not subject to any agreement or right to acquire
the same nor any option right of pre-emption or right of first
refusal and there are no outstanding actions, claims, disputes or
demands between the Vendor and/or GWO and any
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Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
other party affecting or in respect of the Property.
8.12 Save as disclosed in the Disclosure Letter there is no person who
is in occupation or who has or claims any rights or servitudes of
any kind in respect of the Property adverse to the interest, right
or title of the Vendor or GWO therein.
Planning Matters
8.13 For the purposes of sub-paragraphs 8.13 to 8.24 (inclusive) of
this paragraph 8:-
"the Planning Acts" means
The Town and Country Planning (Scotland) Act 1997
The Planning (Listed Buildings and Conservation Areas) (Scotland)
Act 1997
The Planning (Hazardous Substances) (Scotland) Act 1997
The Planning (Consequences Provisions) (Scotland) Act 1997
The Planning and Compensation Act 1991
as the same are from time to time varied or amended and any other
statute or subordinate legislation relating to planning matters.
8.14 Each and every use of the Property is the permitted or lawful use
for the purposes of the Planning Acts and no such use is subject
to planning conditions of an onerous or unusual nature (including
any of a personal or temporary nature).
8.15 Planning permission has been granted or is deemed to have been
granted for the purposes of the Planning Acts in respect of the
development of the Property and any subsequent alteration,
extension or other improvement of the same and no planning
permission is of a personal or temporary nature or
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Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
has been revoked, modified or suspended or is the subject of a
Court of Session challenge and no application for planning
permission is either awaiting decision or the subject of any
appeal.
8.16 Building warrants and certificates of completion and approvals
have been obtained in respect of the development of the Property
and any subsequent alteration extension or other improvement of
the same.
8.17 Compliance is being made and has at all times been made in all
respects with all planning permissions and building warrants for
the time being in force in relation to the Property and with all
orders directions and regulations made under the Planning Acts and
the Building (Scotland) Acts.
8.18 Save as referred to in the Disclosure Letter no agreements or
undertakings relating to the Property have been entered into under
the provisions of:-
8.18.1 Sections 3A, 8, 16 or 37 of the Sewerage (Scotland) Act
1968;
8.18.2 Sections 14 and 48 of the Roads (Scotland) Act 1968;
8.18.3 Section 50 of the Town and Country Planning (Scotland) Act
1972 or Section 75 of the Town and Country Planning
(Scotland) Act 1997;
or any similar legislation or earlier legislation of the same
nature ("Statutory Agreements").
8.19 Compliance is being and has at all times been made with all
Statutory Agreements relating to the Property.
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Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
8.20 No part of the Property is listed as being of special historic or
architectural importance or located in a conservation area nor is
the Property affected by any tree preservation orders.
8.21 All development charges, monetary claims and liabilities under the
Planning Acts or any other such legislation have been discharged
and no such liability contingent or otherwise is outstanding in
respect of the Property.
8.22 No part of the Property is affected or likely to be adversely
affected by any proposals contained in any structure plan, local
plan or unitary development plan prepared or in the course of
preparation in respect of the areas in which the Property is
situated.
8.23 All statements made and all information supplied by or on behalf
of the Vendor or GWO in support of applications lodged for the
grant of certificates of lawful existing use or development and
certificates of lawful proposed use or development under the
Planning Acts in respect of the Property were and remain true and
accurate in all material respects.
8.24 No planning contravention notices, breach of condition notices,
enforcement notices or stop notices have been issued by any local
planning authority in respect of the Property nor has any other
enforcement action (including the exercise of any right of entry)
been taken by any such authority and the Vendor is not aware of
any circumstances which may lead to the same.
Statutory Obligations
8.25 Compliance is being made and has at all times been made with all
applicable statutory and byelaw requirements with respect to the
Property and in particular (but without limitation) with
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Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
requirements as to fire precautions and means of escape in case of
fire and with requirements under the Public Health Acts, the
Housing Acts, the Highways and Roads (Scotland) Acts, the Offices
Shops and Railway Premises Act 1963, the Health and Safety at Work
etc Act 1974 and the Factory Acts.
8.26 There is no outstanding and unobserved or unperformed obligation
with respect to the Property necessary to comply with the
requirements (whether formal or informal) of any competent
authority exercising statutory or delegated powers and neither the
Vendor nor GWO anticipates that the owner of the Property will be
obliged to incur the expenditure of any substantial sum of money
within the next two years for such purpose.
8.27 There are not in force or required to be in force any licences
whether under the Licensing (Scotland) Act 1976 or otherwise which
apply to the Property or relate to or regulate any activities
carried on therein.
Adverse Orders
8.28 There are no compulsory purchase notices orders or resolutions
affecting the Property nor is the Vendor nor GWO aware of any
circumstances likely to lead to any being made.
8.29 There are no closing demolition or clearance orders affecting the
Property nor is the Vendor nor GWO aware of any circumstances
likely to lead to any being made.
Condition of the Property
8.30 The buildings and other structures on the Property are in good and
substantial repair and fit for the purposes for which they are
presently used.
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Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
8.31 The principal means of access to the Property are over roads which
have been taken over by the local or other highway or roads
authority and which are maintainable at the public expense and no
means of access to the Property is shared with any other party nor
subject to rights of determination by any other party and the
Vendor and/or GWO has obtained written confirmation from the roads
authority that all bridges on the normal route for lorry traffic
between the Property and the A75 Trunk Road (including without
prejudice to the generality the bridge over the railway line
leading to the B724 public road) are fit to carry vehicles of at
least 40 tonnes weight.
8.32 The Property enjoys the main services of water drainage
electricity and gas through media located entirely on in or under
the Property and the passage and provision of such services is
uninterrupted.
8.33 No part of the Property is located in an area or subject to
circumstances particularly susceptible to flooding.
8.34 No building or structure on the Property has at any time been
affected by structural damage or electrical defects or by timber
infestation rising damp or disease.
8.35 The Property is not affected by past or present mining activity.
8.36 None of the buildings or other structures on the Property contains
so far as the Vendor is aware in its fabric any:-
8.36.1 high alumina cement or concrete;
8.36.2 calcium chloride cement;
8.36.3 calcium silicate bricks or tiles;
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Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
8.36.4 blue asbestos or other asbestos products;
8.36.5 wood wool slabs in permanent shuttering form;
8.36.6 crocidolite;
8.36.7 untreated sea-dredged aggregates;
8.36.8 alkali re-active aggregates;
8.36.9 urea formaldehyde;
8.36.10 vermiculite plaster;
8.36.11 artificial slates;
8.36.12 lead based paints;
8.36.13 concrete curing accelerator;
or any deleterious substances or any substances not approved by
the British Standards and Codes of Practice for the time being.
Insurance
8.37 The Property is insured in its full reinstatement value and
against third party and public liability claims to an adequate
extent.
8.38 All premiums payable in respect of insurance policies relating to
the Property which have become due have been duly paid and no
circumstances have arisen which would vitiate or permit the
insurers to avoid such policies.
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Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
The Grazing Lease
8.39 The Grazing Lease has been validly executed in self-proving form,
and the subjects thereof are as shown on the plan annexed to the
Disclosure Letter. The Grazing Lease has not been varied in any
respect. Neither the Tenant under the Grazing Lease nor any of the
partners thereof nor any connected person has had any title to
occupy any part of the Property prior to commencement of the
Grazing Lease on 15 March 1997. No party is entitled to claim an
agricultural tenancy in respect of the property or part thereof,
and the heritable proprietor for the time being of the Property is
entitled to vacant possession of the subjects of the Grazing Lease
on 30 November 1997 without requiring to give any notice.
8.40 Neither the Vendor nor GWO nor the tenant under the Grazing Lease
either is or has been in breach of the Grazing Lease in any
respect.
The Hoddam Agreement
8.41 The Hoddam Agreement has not been varied in any respect.
8.42 Neither Hoddam nor GWO are or have been in breach of the Hoddam
Agreement in any respect.
The Water Supply
8.43 At no time has there ever been complaint about or challenge as to
the entitlement to the Water Supply by any party at any time since
the Business commenced to make use of the Water Supply.
8.44 The Vendor has a valid and marketable title to make use of the
Water Supply without any restriction as to the quantity of water
(other than implied by common law) and to leave in place
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
and maintain repair, renew and replace as necessary the Pipeline.
8.45 At no time has the quantity of water actually available from the
Water Supply been inadequate for the requirements of the Business
or to meet the Vendor's obligations under the Hoddam Agreement.
8.46 Other than Hoddam in terms of Hoddam Agreement, no other party
makes use of the Water Supply or the Pipeline.
8.47 The Pipeline has been properly maintained by appropriate
specialist contractors and the Vendor is aware of no defects in
the Pipeline or repairs which might be required to the Pipeline.
8.48 So far as the Vendor or GWO is aware the Pipeline has not been
damaged by the action of any third party.
8.49 The Vendor or GWO has in its possession full records showing the
quantity of water consumed at the Property through the Water
Supply, and will deliver same to the Purchaser at Completion.
8.50 Neither the Vendor nor GWO has at anytime been unable to supply to
Hoddam 1,500,000 gallons of water per day as required by the
Hoddam Agreement.
8.51 Neither the Vendor nor GWO has had cause to complain about the
abstraction of water from the River Annan by any other party.
Damage to the Property
8.52 The Property has at no time suffered any damage or encroachment by
sea or tidal action or flooding by either salt or fresh water.
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Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
8.53 Neither the Vendor nor GWO has on any occasion suffered any damage
to the Property or inconvenience to or interruption of the
Business pursuant to the exercise of any right of access over the
Property either pursuant to the Access Agreement or otherwise.
Miscellaneous
8.54 The Proprietor of the Boilerworks to the north east of the
Property has not exercised the right conferred in Disposition by
Northern Engineering Industries Limited in favor of Glaxo
Properties Limited recorded in said Division of the General
Register of Sasines on 11 June 1980 to make use of the access road
forming part of the Property for heavy vehicular traffic.
8.55 All the burdens and conditions contained in the Deeds and
Documents or other title deeds of the Property have been complied
with and, insofar as of a continuing nature, will be complied with
by the Vendor or GWO at its own expense until the Completion Date.
8.56 Other than in terms of the Grazing Lease, no part of the Property
is or has during the period of ownership of occupation by any
company in the Vendor's Group been leased to or occupied by any
party (whether lawfully or otherwise) other than the Vendor
itself.
8.57 No company in the Vendor's Group, nor so far as the Vendor is
aware any third party is or has been in dispute with any neighbour
or other person or authority whomsoever as to the extent or
boundaries of the Property or any neighbouring property or any
common liabilities or title conditions affecting, or servitude
exercisable by or against (including without prejudice to the
generality of the Servitudes), the Property or its proprietor, or
otherwise in respect of the
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Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
Property except with regard to previous grazing leases which have
expired and whose tenants have removed and who have no further
rights in respect of the Property.
8.58 There are no notices, orders or proposals under the Planning Acts
or any other public or local statutes or regulations or orders
made thereunder or proposals or applications for statutory
consents in relation to development affecting the Property or
adjacent or nearby land or buildings, and no part of the Property
or adjacent land is a SSSI or the subject of any other
conservation, environmental or amenity designation.
8.59 All buildings, structures, civil engineering or similar works,
plant and equipment, machinery and fixtures and fittings on or
comprised in the Property have been designed, constructed,
manufactured and assembled or installed by suitably qualified and
experienced persons in implement of written contracts which are in
the possession of the Vendor (and which will be delivered by the
Vendor to the Purchaser on the Completion Date), and in accordance
with all appropriate statutory and other consents, British
Standards and Codes of Practice, the Purchaser has not had
occasion to make any claim against any such person, and the Vendor
and/or GWO (as appropriate) is entitled to assign to the Purchaser
all rights which the Vendor and/or GWO (as appropriate) shall have
against any such person, without requiring the consent of any such
person or other party, and the Vendor and/or GWO (as appropriate)
holds all appropriate consents, warranties and guarantees in
respect of any such buildings or others.
8.60 There are no matters known to the Vendor adverse to the Property
the disclosure of which is material to be known by a purchaser of
the Property.
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Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
Environmental Matters
8.61 Consents:
8.61.1 The Vendor and/or GWO (as appropriate) holds (in its name)
all authorizations, permissions, consents, licences and
agreements necessary to enable it to carry on the Business
lawfully and effectively as at the date of this agreement
in the places and in the manner in which the Business is
now carried on and in particular (but without limitation):
to make all relevant abstractions of water; to keep, store
or hold all relevant substances whether as raw materials,
products or wastes; to carry on all relevant processes; to
construct and maintain all relevant buildings, plant and
equipment; and to hold, treat, manage, consign and dispose
of all waste materials, substances, gases and effluents in
the relevant manner and knows of no circumstances which
would require additional authorizations, permissions,
consents, licences and agreements to be obtained following
Completion if the Business was carried on after Completion
in the same way and to the same extent as before
Completion.
8.61.2 All such authorizations, permissions, consents, licences
and agreements have been lawfully obtained and are in full
force and effect.
8.61.3 No further authorizations, permissions, consents, licences
and agreements are necessary to enable the Purchaser to
carry on the Business as now or since 31 December 1996
conducted.
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Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
8.61.4 Without prejudice to paragraphs 8.61.1, 8.61.2 and 8.61.3
details of all authorizations, permissions, consents,
licences and agreements of the types referred to in
paragraph 8.61.1 are set out in the Disclosure Letter
(including details of the renewal dates).
8.61.5 The Vendor and each member of the Vendor's Group has in
relation to the Business complied at all times in all
respects with all conditions attaching to the
authorizations, permissions, consents, licences and
agreements referred to in paragraph 8.61.1 (whether such
conditions are imposed expressly or are implied by law) and
there are no circumstances known to the Vendor which would
render it impracticable for the Purchaser to comply with
those conditions in the future.
8.61.6 Neither the Vendor nor any member of the Vendor's Group has
in relation to the Business received written notice,
correspondence or communication in any other form in
respect of any of the authorizations, permissions,
consents, licences or agreements referred to above
revoking, suspending, modifying or varying any of them and
there are no circumstances known to the Vendor which might
give rise to such notice being received or of any intention
on the part of any relevant authority to give any such
notice.
Compliance with environmental protection laws
8.62 Neither the Vendor nor any member of the Vendor's Group nor any of
their officers, agents or employees have committed, in relation to
the
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
Business or the Property and whether by act or omission, any
breach of Environmental Laws, and they have conformed at all times
with all relevant codes of practice, guidance notes, standards and
other advisory material issued by any competent authority.
8.63 Neither the Vendor nor any member of the Vendor's Group has in
relation to the Business or the Property received any notice,
order or other communication from any relevant authority in
respect of a failure to comply with any Environmental Laws and
there are no circumstances which might give rise to such notice,
order or other communication being received nor is the Vendor
aware of any intention on the part of any such authority to give
such notice.
8.64 Civil liability
8.64.1 There is no actual or potential liability on the part of
the Vendor or any member of the Vendor's Group arising from
any activities or operations of the Business or the state
or condition of any properties now or formerly owned or
occupied by the Vendor or any member of the Vendor's Group
in relation to the Business or facilities now or formerly
used by the Vendor or any member of the Vendor's Group in
relation to the Business and in particular (but without
limitation) any such liability in respect of: injury to
persons (including impairment of health or interference
with amenity); damage to land or personal property;
interference with riparian or other proprietary or
possessory rights; public or private nuisance; liability
for waste or other substances; and damage to or impairment
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
of the environment including living organisms.
8.64.2 Neither the Vendor nor any member of the Vendor's Group is
in relation to the Business engaged in any litigation,
arbitration or dispute resolution proceedings relating to
any actual or potential liability in respect of any matter
covered by paragraph 8.64.1 and the Vendor is not aware of
any such litigation or proceedings pending or being
threatened nor is the Vendor aware of any circumstances or
facts likely to give rise to such litigation, arbitration
or proceedings.
8.64.3 Neither the Vendor nor any member of the Vendor's Group is
subject to any injunction, interdict or similar remedy or
order by a court of competent jurisdiction, or to any
undertaking given to such court, in respect of matters
referred to in this paragraph 8.64.
8.64.4 No notification has been (or in accordance with the terms
of the relevant policies of insurance should have been)
made to the Vendor's or GWO's insurers of any matters
specified in this paragraph 8.64.
8.65 Condition of the Property
8.65.1 No notice or other communication has been received from any
relevant authority relating to the physical condition of
the Property nor so far as the Vendor is aware is there any
circumstance likely to give rise to the
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
service of any such notice or communication.
8.65.2 The Property has not been used for the deposit of waste
controlled by any legislation during the ownership or
occupation of the Vendor or any member of the Vendor's
Group and neither the Vendor nor any member of the Vendor's
Group is aware of any such use before its ownership or
occupation.
8.66 Internal policy assessments and plans
8.66.1 Details of all the Vendor's and GWO's statements of
corporate environmental policy and operating procedures are
set out in the Disclosure Letter.
8.66.2 The Vendor and any other relevant company in the Vendor's
Group have complied with all its statements of corporate
environmental policy and operating procedures.
8.66.3 The Vendor and each other relevant company in the Vendor's
has properly carried out and made all such assessments or
plans as are required by law in relation to the substances,
processes, operations and wastes (including without
limitations those relating to hazardous substances,
accident hazards, releases to the environment and noise) of
the Business; proper records have been kept of such
assessments and plans and the Vendor knows of no
circumstances which would render such appraisals or plans
incorrect or subject to revision.
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Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
8.67 Any replies given by or on behalf of the Vendor and/or GWO
to enquiries before contract raised by or on behalf of the
Purchaser relating in any way to the Property are true,
complete and accurate in all respects and contain all
information known or available to the Vendor's Group in
response to the enquiries.
9 ASSETS
9.1 The Vendor is the legal and beneficial owner having possession of
and with good and marketable title to all the Assets and all the
assets required to carry on the Business are included in the sale
hereunder and are in the possession or under the control of the
Vendor.
9.2 None of the Assets is the subject of any Encumbrance.
9.3 The Vendor has not created any Encumbrance on over or affecting
any part of the Assets and there is no agreement or commitment to
give or create any Encumbrance and no claim has been made by any
person to be entitled to any Encumbrance.
9.4 All the plant, machinery, equipment and vehicles of the Vendor
relating to the Business are in good repair and working order and
have been regularly and properly maintained and no substantial
repairs are in hand or are necessary and none of the plant,
machinery, equipment or vehicles is out of date, dangerous (by
reason of its state of repair), not fit for its purpose,
unsuitable or in need of renewal or replacement or fails to comply
with the applicable safety standards.
9.5 The List of Fixed Plant and the List of Equipment comprise a
complete and accurate record of all the plant and equipment (with
a value of(pounds)50,000 or more), machinery, equipment and
vehicles owned or possessed by the Vendor in relation to the
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
Business and necessary for the continuation of the Business.
9.6 There are no Assets used in the Business which are not situate at
the Property.
10 STOCK
10.1 All the Stock can be used in the Business.
10.2 The Stock is sufficient for the normal requirements of the
Business.
10.3 The Stock is at its normal level having regard to current orders.
11 INSURANCE
11.1 Full details of all insurance policies effected in relation to the
Business have been disclosed to the Purchaser and all such details
are true and correct in all respects and all such insurance
policies are currently in full force and effect.
11.2 Neither the Vendor nor GWO has done or omitted to do or suffered
anything to be done or not to be done which has or might render
any policies of insurance taken out by it void or voidable or
which would or might result in an increase in the rate of premiums
on the said policies and there are no circumstances of which the
Vendor is aware which would or might give rise to any claim under
any of such policies of insurance.
11.3 There is now and has at all times been adequate insurance in
respect of the Business against fire, accident, damage, injury,
third party loss (including product liability) loss of profits and
other risks normally covered by insurance (including such risks as
companies carrying on the same type of business as the Business
commonly cover by insurance).
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
12 RECORDS
The records and books of account of the Vendor and GWO relating to the
Business are duly entered up and contain true, full and accurate records
of all matters to be dealt with therein and do not contain any material
inaccuracies or discrepancies. All books and all records and documents of
the Vendor and GWO relating thereto which are its property are in the
possession or under the control of a company within the Vendor's Group.
13 CONFIDENTIAL INFORMATION
13.1 Neither the Vendor nor GWO uses in the Business any processes and
is not engaged in the Business in any activities which involve the
misuse of any Confidential Information belonging to any third
party.
13.2 The Vendor is not aware of any actual or alleged misuse by any
person of any of its Confidential Information.
13.3 Neither the Vendor nor GWO has disclosed to any person any of its
Confidential Information except where such disclosure was properly
made in the normal course of the Business and was made subject to
an agreement under which the recipient was obliged to maintain the
confidentiality of such Confidential Information and was
restrained from further disclosing or using it other than for the
purposes for which it was disclosed by the Vendor or GWO.
13.4 Confidential Information used by the Vendor or GWO is kept
strictly confidential and the Vendor and GWO operate and fully
complies with procedures which maintain such confidentiality which
confidentiality has not been breached.
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
14 INTELLECTUAL PROPERTY
14.1 The Vendor is the sole unencumbered legal and beneficial owner and
where registered the sole registered proprietor of all the
Intellectual Property.
14.2 The material particulars as to ownership registration (and
applications therefor) of the Intellectual Property (if any) are
set out in the Disclosure Letter and such details are complete and
correct. Such Intellectual Property comprises all Intellectual
Property which the Purchaser will require in order fully to carry
on and exploit the Business and deal with the Assets sold and
purchased hereunder.
14.3 None of the Intellectual Property is currently being infringed by
any third party or has been so infringed in the 6 year period
preceding the Completion Date and no third party has threatened
any such infringement.
14.4 Save for those agreements listed in the Disclosure Letter the
carrying on of the Business as presently constituted does not
require any licences or consents from or the making of royalty or
similar payments to any third party and the Vendor is not engaged
in any activities which and none of the Vendor's processes or
products infringe any Intellectual Property belonging to any third
party. All such listed agreements (and each provision thereof) are
valid and subsisting and not restricted in any way and the Vendor
is not in breach of any of the provisions thereof.
14.5 There are no outstanding claims against the Vendor for
infringement of any Intellectual Property used (or which has been
used) by it in the Business and no such claims have been settled
by the giving of any undertakings which remain in force.
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
14.6 There is no Intellectual Property required for the carrying on of
the Business which is not exclusively used in respect of the
Business or which is being licensed to the Purchaser.
15 COMPUTER SYSTEMS
15.1 The Computer Systems have been satisfactorily maintained and have
the benefit of the maintenance agreements listed in the Disclosure
Letter or in the Information Technology Services Agreement.
15.2 Disaster recovery plans are in effect and in the opinion of the
Vendor's directors are adequate for its present needs to ensure
that the Computer Systems can be replaced or substituted without
material disruption to the Business.
15.3 In the event that any person providing maintenance or support
services for the Computer Systems ceases or is unable to do so,
the Vendor has all necessary rights to obtain the source code and
all related technical and other information to procure the
carrying out of such services by its own employees or by a third
party.
15.4 The Vendor has adequate procedures for its present needs to ensure
internal and external security of the Computer Systems, including
procedures for taking and storing, on-site and off-site, back-up
copies of computer programs and data.
15.5 None of the records, systems, controls, data or information
relating to the Business are recorded, stored, maintained,
operated or otherwise wholly or partly dependent upon or held by
any means (including any electronic, mechanical or photographic
processes whether computerized or not) which (including all means
of access thereto and therefrom) are not under the exclusive
ownership and direct control of the Vendor.
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
16 DATA PROTECTION
The Vendor and GWO (as applicable) has complied with all relevant
requirements of the Data Protection Act 1984, in relation to the Business
including:
16.1 the data protection principles established in that Act;
16.2 request from data subject for access to data held by it; and
16.3 the requirements relating to the registration of data users.
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
17 REPAYMENT LIABILITIES
Neither the Vendor nor GWO has received any notice to repay any monies or
liabilities which are repayable on demand and no default or event
entitling any person with or without giving any formal notice and whether
immediately or after expiry of any notice to demand or accelerate
repayment appoint a receiver or take any other action to protect his
security has occurred in relation to any agreement relating to any
borrowing or indebtedness or security given by the Vendor or GWO in
relation to the Business.
18 EMPLOYEES
18.1 None of the Employees has given or received notice terminating his
employment or will be entitled to give notice as a result of the
provisions of this agreement.
18.2 Full particulars of the terms and conditions of employment of all
the Employees (including without limitation all remuneration
incentives bonuses expenses and other payments and benefits
whatsoever payable) are set out in the Disclosure Letter.
18.3 There is not in existence any contract of employment with
directors or employees of the Vendor (or any contract for services
with any individual) relating to the Business which cannot be
terminated by 3 months' notice or less without giving rise to a
claim for damages or compensation (other than a statutory
redundancy payment or statutory compensation for unfair
dismissal).
18.4 In relation to each of the Employees (and so far as relevant to
each of its Excluded Employees and/or former employees) the Vendor
has:-
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
18.4.1 complied with all obligations imposed on it by Articles of
the Treaty of Rome European Commission Regulations and
Directives and all statutes regulations and codes of
conduct relevant to the relations between it and the
Employees or it and any recognized trade union;
18.4.2 maintained adequate and suitable records regarding the
service of each of the Employees;
18.4.3 complied with all collective agreements and customs and
practices for the time being dealing with such relations or
the conditions of service of the Employees; and
18.4.4 complied with all relevant orders and awards made under any
statute affecting the conditions of service of its
Employees.
18.5 The Vendor nor any other company in the Vendor's Group is involved
in any industrial or trade disputes and to the best of the
Vendor's knowledge information and belief there are no
circumstances which may result in any industrial dispute involving
any of the Employees and to the best of the Vendor's knowledge
information and belief none of the provisions of this agreement
including the identity of the Purchaser is likely to lead to any
industrial dispute.
18.6 There is not outstanding any agreement or arrangement to which the
Vendor nor any other company in the Vendor's Group is party in
relation to the Business for profit sharing or for payment to any
of its employees of bonuses or for incentive payments or other
similar matters.
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
18.7 Since 31 December 1996 no change has been made in the terms of
employment by the Vendor of any of the Employees.
18.8 Save as disclosed in the Disclosure Letter the Vendor nor any
other company in the Vendor's Group has not entered into any
recognition agreement with a trade union in respect of the
Employees nor has it done any act which may be construed as
recognition.
18.9 The Vendor and GWO have complied with all recommendations made by
the Advisory Conciliation and Arbitration Service and with all
awards and declarations made by the Central Arbitration Committee.
18.10 There is no agreement, arrangement, scheme or obligation (whether
legal or moral) for the payment of any pensions, allowances, lump
sums or other like benefits on retirement or on death or during
periods of sickness or disablement for the benefit of any of the
Employees or for the benefit of dependents of such persons save as
disclosed in the Disclosure Letter.
18.11 No amounts due to or in respect of any of the Employees (including
PAYE and national insurance and pension contributions) are in
arrear or unpaid.
18.12 No monies or benefits other than in respect of contractual
emoluments are payable to any of the Employees and there is not at
present a claim occurrence or state of affairs which may hereafter
give rise to a claim against the Vendor or GWO arising out of the
employment or termination of employment of any employee for
compensation for loss of office or employment or otherwise and
whether under the Employment Rights Act 1996 Equal
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
Pay Act 1970, Sex Discrimination Act 1975, Sex Discrimination Act
1986, Disability Discrimination Act 1995 or any other act or
otherwise.
19 CONTRACTS
19.1 There is not outstanding in connection with the Business:-
19.1.1 any agreement or arrangement between the Vendor or GWO and
any third party which the signature or performance of this
agreement will contravene or under which the third party
will acquire a right of termination or any option as a
result of the signature or performance of this agreement;
19.1.2 any agency, distributorship, marketing, purchasing,
manufacturing or licensing agreement or arrangement or any
restrictive trading or other agreement or arrangement
pursuant to which any part of the Business has been carried
on;
19.1.3 any agreement or arrangement in relation to the Business
between the Vendor or GWO and any other company which is a
member of the Group;
19.1.4 any agreement or arrangement entered into by the Vendor or
GWO otherwise than by way of bargain at arm's length and in
the normal and ordinary course of the Business; or
19.1.5 any sale or purchase option or similar agreement or
arrangement affecting any of the Assets or by which the
Vendor or
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
GWO is bound in relation to the Business.
19.2 None of the Contracts contain are unprofitable (that is to say
known to have been likely to result in a loss to the Vendor on
completion of performance if the Vendor had not sold the Business)
or of a long term nature (that is to say incapable of performance
in accordance with its terms within 6 months after the date on
which it was entered into or undertaken).
19.3 No party with whom the Vendor or GWO has entered into any
agreement or arrangement in connection with the Business is in
default thereunder being a default which would have a material and
adverse effect on the financial or trading position or prospects
of the Business and so far as the Vendor is aware there are no
circumstances likely to give rise to such a default.
19.4 Neither the Vendor nor GWO has any knowledge of the invalidity of
or grounds for rescission, avoidance or repudiation of any of the
Contracts and has not received notice of intention to terminate
any of the Contracts.
19.5 Neither the Vendor nor GWO has any reason to believe that any
supplier of the Vendor or GWO or other person dealing with the
Vendor or GWO in connection with the Business will refuse to deal
with the Purchaser in connection with the Business or will deal
with it on a smaller scale than with the Vendor or GWO as a result
of the signature or performance of this agreement.
19.6 Details of all tenders which have been made by the Vendor or GWO
in connection with the Business and which have not yet been
accepted but are capable of acceptance are contained in the
Disclosure Letter.
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
20 BORROWINGS
Except as disclosed in the Accounts neither the Vendor nor GWO has
outstanding in connection with the Business:-
20.1 any borrowing or indebtedness in the nature of borrowing including
any bank overdrafts liabilities under acceptances (otherwise than
in respect of normal trade bills) and acceptance credits other
than borrowing or indebtedness arising in the ordinary course of
business;
20.2 any guarantee indemnity or undertaking (whether or not legally
binding) to procure the solvency of any person or any similar
obligation; or
20.3 any mortgage charge lien pledge or any obligation (including a
conditional obligation) to create a mortgage charge lien or
pledge.
21 LITIGATION OFFENCES AND COMPLIANCE WITH STATUTES
21.1 Neither the Vendor nor any other company in the Vendor's Group is
plaintiff, defendant (save where it has no knowledge any
proceedings to be served on it) pursuer or defender or otherwise a
party to any litigation, arbitration or administrative proceedings
in connection with the Business which are in progress or are
threatened or pending by or against or concerning the Vendor or
any of the Assets the Vendor is not being prosecuted for any
criminal offence in connection with the Business, no governmental
or official investigation or inquiry concerning the Business or
any of the Assets is in progress or pending and so far as the
Vendor is aware there are no circumstances which are likely to
give rise to any such proceedings, investigation or inquiry.
21.2 Neither the Vendor nor any other company in the Vendor's Group nor
any of its officers, employees
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separately with the Commission.
or, so far as the Vendor is aware, its agents (during the course
of their duties in relation to the Business) has committed or
omitted to do any act or thing the commission or omission of which
is or could be in contravention of any statutory obligation or any
other law of the United Kingdom or any part thereof or any other
country giving rise to any fine, penalty, default, proceedings or
other liability in relation to the Business or any of the Assets
or any judgment or decision which would materially affect the
financial or trading position or prospects of the Business.
21.3 Neither the Vendor nor any other company in the Vendor's Group has
done or agreed to do anything as a result of which either any
investment or other grant paid to the Vendor in relation to the
Business is or may be liable to be refunded in whole or in part or
any such grant for which application has been made by it will or
may not be paid or may be reduced.
21.4 There is not outstanding in relation to the Business any liability
for industrial training levy or for any other statutory or
governmental levy or charge.
22 RESTRICTIVE AGREEMENTS
22.1 There are no agreements in force to which the Vendor nor any other
company in the Vendor's Group is a party directly or indirectly
affecting the Business which would restrict the freedom of the
Purchaser to provide and take goods and services by such means and
from and to such persons as it may from time to time think fit.
22.2 Neither the Vendor nor any other company in the Vendor's Group is
nor has it been party to any agreement, arrangement, concerted
practice or course of conduct directly or indirectly affecting the
Business which:-
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
22.2.1 is or ought to be or ought to have been or requires to be
registered under the Restrictive Trade Practices Acts 1976
and 1977 or contravenes the provisions of the Resale Prices
Act 1976 or is or has been the subject of any inquiry,
investigation or proceeding under any of these Acts;
22.2.2 is or has been the subject of an inquiry, investigation,
reference or report under the Fair Trading Act 1973 (or any
previous legislation relating to monopolies or mergers) or
the Competition Act 1980; or
22.2.3 contravenes Article 85(1) or 86 of the Treaty of Rome or
which has been notified to the Commission of the European
Community for an exemption or in respect of which an
application has been made to the said Commission for a
negative clearance or infringes any regulation or other
enactment made under Article 87 of the said Treaty or is or
has been the subject of any inquiry, investigation or
proceeding in respect thereof;
22.2.4 has or is intended to have or is likely to have the effect
of restricting, distorting or preventing competition in
connection with the production, supply or acquisition of
goods in the United Kingdom or any part of it or the supply
or securing of services in the United Kingdom or any part
of it.
22.2.5 is by virtue of its terms or by virtue of any practice for
the time being carried on in connection therewith a
"Consumer Trade Practice" within the
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separately with the Commission.
meaning of section 13 of the Fair Trading Act 1973 and
susceptible to or under reference to the Consumer
Protection Advisory Committee or the subject matter of a
report to the Secretary of State or the subject matter of
an Order by the Secretary of State under the provisions of
Part II of that Act; or
22.2.6 infringes any other competition, anti- restrictive trade
practice, anti-trust or consumer protection law or
legislation applicable in the United Kingdom or elsewhere
and not specifically mentioned in this paragraph.
22.3 Neither the Vendor nor any other company in the Vendor's Group has
in connection with any matter directly or indirectly affecting the
Business given any assurance or undertaking to the Restrictive
Practices Court or the Director General of Fair Trading or the
Secretary of State for Trade and Industry or the Commission or the
Court of Justice of the European Communities or any other court,
person or body and is not subject to any act, decision, regulation
or other instrument made by any of them relating to any matter
referred to in this sub-paragraph 24.3.
22.4 Neither the Vendor nor any other company in the Vendor's Group is
in default or in contravention of any article, act, decision,
regulation or other instrument or of any undertaking relating to
any matter referred to in sub-paragraph 23.2 ("the Anti-Trust
Rules") and has received no complaint or threat to complain under
or referring to the Anti-Trust Rules from any person and has not
received any request for information, investigation or objection
relating to the Anti-Trust Rules or been party to any proceedings
to
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separately with the Commission.
which the Anti-Trust Rules (or any of them) were pleaded or relied
upon.
22.5 Neither the Vendor nor any other company in the Vendor's Group is
in relation to the Business in a dominant position in any market
in any substantial part of the EEC for the purposes of Article 86
of the Treaty of Rome.
23 EFFECTS OF THIS AGREEMENT
Neither this agreement nor completion thereof:-
23.1 conflicts with or will or may result in the breach of or
constitute a default under or give rise to any right of
termination or acceleration of payment or additional liability
under any agreement, instrument, order, judgment, award,
injunction, decree or regulation or any restriction of any kind to
which a member of the Vendor's Group is a party; nor
23.2 will or may relieve any other party to any of the Contracts of its
obligations thereunder or enable it to determine such obligations
or any of them to the Purchaser's detriment or to the detriment of
the Business.
24 DEFECTIVE PRODUCTS
Neither the Vendor nor any member of the Vendor's Group has in relation
to the Business sold or supplied prior to Completion any products which
are or were in any respect faulty or defective or which do not comply
with any warranties or representations expressly or implied made.
25 REORGANIZATION
Details of the transfer in 1995 of the Business and associated assets
from Glaxochem Limited to GWO and in
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confidential treatment. The omitted portions are marked **** and have been filed
separately with the Commission.
1997 from GWO to the Vendor are contained in the Disclosure Letter.
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separately with the Commission.
SCHEDULE 6
Limitations to Vendor's Liability
1 The provisions of this Schedule shall operate to limit the liability of
the Vendor under the warranties contained in Schedule 5 and references
to "liability" or "liabilities" shall be construed accordingly.
2 The Vendor shall not be liable for any claim in respect
of any Relevant Claim:
2.1 unless the aggregate amount of all Relevant Claims
for which the Vendor would otherwise be liable
exceeds (pounds)100,000;
2.2 to the extent that the total liability of the
Vendor in respect of all Relevant Claims would
exceed ****;
2.3 unless the Purchaser has given the Vendor written
notice of the Relevant Claim (stating in
reasonable detail the nature of the Relevant Claim
and, if practicable, the amount claimed) on or
before the date which is 30 days after the date of
receipt of the audited accounts of the Purchaser
for the financial period ended 31 December 1999.
If the aggregate amount of the Relevant Claims exceeds (pounds)100,000
the Vendor shall be liable for the full amount and not just the excess
above (pounds)100,000.
3 A Relevant Claim notified in accordance with paragraph 2.3 and not
satisfied, settled or withdrawn is unenforceable against the Vendor, on
the expiry of twelve (12) months starting on the day of notification of
the Relevant Claim unless proceedings in respect of the Relevant Claim
have been issued and served on the Vendor.
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4 The Vendor shall not be liable in respect of a Relevant Claim:
4.1 if and to the extent that the matter giving rise to the Relevant
Claim would not have arisen but for the passing of, or a change
in, after the date of Completion a law, regulation or
administrative practice of a government, government department,
agency or regulatory body, in each case not actually or
prospectively in force at the date of this agreement;
4.2 if and to the extent that the matter giving rise to the Relevant
Claim is an amount for which the Purchaser's Group has recovered
from any person (other than the Vendor), whether under a provision
of applicable law, insurance policy or otherwise;
4.3 if and to the extent that the matter giving rise to the Relevant
Claim would not have arisen but for an act omission or transaction
of the Purchaser or an officer of the Purchaser which was outside
the ordinary course of the Business which it or he should
reasonably have known would give rise to such liability.
5 The Purchaser shall not be entitled to recover more than once in respect
of the same loss.
6 The Purchaser shall as soon as reasonably practicable give written notice
to the Vendor of any matter which it becomes aware which is likely to
give rise to a Relevant Claim and whether the Purchaser considers it may
have any remedy against any third party and shall consult with the Vendor
in respect to the matter. If the Purchaser fails, for whatever reason, to
comply with the terms of this clause any such failure shall not affect
the Purchaser's ability to make a Relevant Claim.
7 If the Purchaser becomes aware of a matter which might give rise to a
Relevant Claim and if such claim is as a
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result of or in connection with a claim by or a liability to a third
party:
7.1 the Purchaser shall (subject to any obligations as to
confidentiality to third parties) provide to the Vendor and its
advisors reasonable access, by prior arrangement, to premises and
personnel and to relevant assets, documents and records within the
power or control of the Purchaser's Group for the purposes of
investigating the matter and enabling the Vendor to take the
action referred to in paragraph 7.4;
7.2 the Vendor (at its cost) may by prior arrangement take copies of
the documents and records and photograph the premises or assets
referred to in paragraph 7.2;
7.3 the Purchaser shall (save where any such action would be
prejudicial to the Business) take any action and institute any
proceedings and give any information and assistance, as the Vendor
may reasonably request to dispute, resist, appeal, compromise,
defend, remedy, settle or mitigate the matter or enforce against a
person, (other than a member of the Vendor's Group) the rights of
the Purchaser in relation to the matter in connection with
proceedings related to the matter (other than against a member of
the Vendor's Group) and the Vendor shall indemnify the Purchaser
for all reasonable costs incurred as a result of any such request
by the Vendor;
7.4 the Purchaser shall not, and shall ensure that no member of the
Purchaser's Group will, admit liability in respect of, compromise
or settle the matter without the prior written consent of the
Vendor (not to be unreasonably withheld or delayed).
8 If the Vendor pays to the Purchaser an amount in respect of a Relevant
Claim and the Purchaser or any
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member of the Purchaser's Group subsequently recovers from a third party
an amount which is referable to the matter giving rise to the Relevant
Claim then:
8.1 if the amount paid by the Vendor in respect of the Relevant Claim
is more than the sum recovered from the third party, the Purchaser
shall as soon as practicable pay the Vendor the sum so recovered;
and
8.2 if the amount paid by the Vendor in respect of the Relevant Claim
is less than or equal to the sum recovered from the third party,
the Purchaser shall as soon as practicable pay the Vendor an
amount equal to the amount paid by the Vendor;
9 For the purposes of this paragraph the "sum recovered" means an amount
equal to the amount recovered from the third party less all reasonable
costs and expenses incurred by the Purchaser or any member of the
Purchaser's Group in recovering the amount from the third party.
10 Nothing in this part of this Schedule restricts or limits the Purchaser's
general obligations to mitigate any loss or damage which it may incur in
consequence of a matter giving rise to a Relevant Claim.
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