1
CONFORMED COPY
DATED 29TH JANUARY, 2001
(as amended by an Amendment Agreement dated 4th May, 2001)
UNILEVER N.V.
UNILEVER PLC
AND
▇▇▇▇▇▇▇▇ SOUP COMPANY
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AMENDED AND RESTATED
BUSINESS AND SHARE SALE AND PURCHASE AGREEMENT
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▇▇▇▇▇▇▇▇▇ AND MAY
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(GNE/JCXP)
CE010300079
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CONTENTS
PAGE
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1. INTERPRETATION 7
2. CONDITIONs 7
3. SALE AND PURCHASE 13
4. ▇▇▇▇▇▇▇ BUSINESS 16
5. CONSIDERATION 17
6. THE COMPANY 18
7. STOCKS ADJUSTMENT 18
8. CONDUCT OF BUSINESS BEFORE COMPLETION 19
9. COMPLETION 24
10. ACTION AFTER COMPLETION 24
11. THIRD PARTY CONSENTS FOR THE SALE OF BUSINESS ASSETS 27
12. CONTRACTS 28
13. ASSUMED LIABILITIES, PAYABLES AND RETAINED LIABILITIES 29
14. RECEIVABLES AND APPORTIONMENT 34
15. GUARANTEES AND OTHER AGREEMENTS 35
16. VALUE ADDED TAX 37
17. EMPLOYEES 37
18. PENSIONS 45
19. INSURANCE 45
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20. CONTINUING ARRANGEMENTS BETWEEN SELLERS' GROUP AND THE EUROPEAN
CULINARY BRANDS BUSINESS 46
21. SELLERS' WARRANTIES AND PURCHASER'S REMEDIES 48
22. PURCHASER'S WARRANTIES 51
23. PURCHASER'S UNDERTAKINGS 52
24. RESTRICTIONS ON SELLERS 57
25. RESTRICTIONS ON PURCHASER 59
26. PROVISION RELATING TO RESTRICTIONS 60
27. BOOKS AND RECORDS 60
28. PAYMENTS 61
29. EFFECT OF COMPLETION 63
30. JOINT AND SEVERAL LIABILITY AND CAPACITY OF THE SELLERS AND THE
▇▇▇▇▇▇▇▇▇ ▇▇
▇▇. REMEDIES, WAIVERS AND INDEMNIFICATION 64
32. NO ASSIGNMENT 67
33. FURTHER ASSURANCE 67
34. ENTIRE AGREEMENT 68
35. NOTICES 70
36. ANNOUNCEMENTS 71
37. CONFIDENTIALITY 72
38. COSTS AND EXPENSES 74
39. COUNTERPARTS 74
40. INVALIDITY 74
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41. THIRD PARTY RIGHTS 75
42. GROUP COMPANY OBLIGATIONS 75
43. GOVERNING LAW 75
44. JURISDICTION 76
45. AGENTS FOR SERVICE OF PROCESS 76
46. LANGUAGE 77
SCHEDULE 1 (INTERPRETATION) 78
SCHEDULE 2 (COMPLETION ARRANGEMENTS) 113
SCHEDULE 3 (THE WARRANTIES) 119
SCHEDULE 4 (LIMITATIONS ON LIABILITY) 146
SCHEDULE 5 (COMPLETION STATEMENT IN RESPECT OF STOCKS) 154
SCHEDULE 6 (BUSINESS SELLERS AND SHARE SELLER) 159
SCHEDULE 7 (BASIC INFORMATION CONCERNING THE COMPANY) 162
SCHEDULE 8 (ALLOCATION OF FINAL CASH CONSIDERATION) 163
SCHEDULE 9 (PROPERTIES) 166
SCHEDULE 10 (PENSIONS) 187
SCHEDULE 11 (EMPLOYEES) 260
SCHEDULE 12 (VAT) 266
SCHEDULE 13 IT SEPARATION 269
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LIST OF ATTACHMENTS
1. Financial Information:
Part 1: The United Kingdom and the Republic of Ireland
Part 2: Denmark, Finland and Sweden
Part 3: Belgium, France, Germany, the Netherlands and Portugal
Part 4: Notes.
2. Unilever Accounting Policy Manual.
3. Data Room List.
4. Intellectual Property:
Part 1: Business IPR
Part 2: Licensed Rights
Part 3: Licensed Back Rights
Part 4: Excluded IPR
Part 5: Raguletto Marks
Part 6: World-wide Marks
5. Unilever Marks:
Part 1: Unilever logo
Part 2: Other Unilever Marks.
6. Employees:
Part 1: [Intentionally deleted]
Part 2: Excluded Employees
Part 3: Seconded Employees.
Part 4: Potential UK Employees
Part 5: Potential German Employees
7. Format of Completion Stocks Statement.
8. Press Announcements.
9. List of Unilever Manuals and Policy Documents.
10. Additional Excluded Assets.
LIST OF AGREED FORM DOCUMENTS
Tax Covenant
Co-packing Agreements
Transitional Services Agreement
Trade ▇▇▇▇ Assignment
Registered Design Assignment
Plant Variety Right Assignment
Trade ▇▇▇▇ Licence Agreement
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Patent Licence Agreement
Registered Design Licence Agreement
Co-existence Agreement
Trade ▇▇▇▇ Licence Back
Ashford Novation Agreement
Swedish Warehouse Services Agreement
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AMENDED AND RESTATED BUSINESS AND SHARE SALE AND PURCHASE AGREEMENT
DATED 29TH JANUARY, 2001
BETWEEN:
1. UNILEVER N.V., a company incorporated in the Netherlands whose corporate
seat is in Rotterdam and whose registered office is at ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and UNILEVER PLC, a company incorporated in
England and Wales (registered number 41424) whose registered office is at
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (together, the
"SELLERS" and each a "SELLER");
AND
2. ▇▇▇▇▇▇▇▇ SOUP COMPANY, a company headquartered at ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇ ▇▇▇ (the "PURCHASER").
WHEREAS:
The Sellers have agreed to sell or procure the sale of and the Purchaser has
agreed to purchase or procure the purchase of and pay or procure payment for the
Business Assets (as defined in this Agreement) and the Shares (as defined in
this Agreement) for the consideration and on the terms set out in this
Agreement.
WHEREBY IT IS AGREED as follows:
1. INTERPRETATION
(A) Certain words and expressions used in, and principles of interpretation
applicable to, this Agreement are defined, or as the case may be set out,
in Schedule 1.
(B) The Schedules and the Attachments form part of this Agreement and shall
have the same force and effect as if set out in the body of this
Agreement and any reference to this Agreement shall include the Schedules
and the Attachments.
2. CONDITIONS
(A) The obligations of the Sellers and the Purchaser under this Agreement
(other than those contained in this Clause, Clause 8 and Clauses 21, 31,
32 and 34 to 46, which are unconditional) are conditional in all respects
upon:
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(i) the European Commission having communicated in writing to the
Sellers or either of them, or having been deemed to have given,
its approval of the Purchaser as the purchaser of the Business
Assets and Shares pursuant to paragraph 1.5 of the Undertaking;
(ii) to the extent that the Merger Regulation applies to the
acquisition of the Business Assets and the Shares contemplated by
this Agreement, the European Commission having issued a decision
under Article 6(1)(b) or Article 8(2) of the Merger Regulation
(or being deemed to have done so under Article 10(6) of the
Merger Regulation) declaring the acquisition of the Business
Assets and the Shares contemplated by this Agreement compatible
with the common market;
(iii) the fulfilment of any obligation to provide information to, or
consult with or request advice from any, works council, trade
union or other body representing employees under the laws of the
Netherlands, Sweden or any other jurisdiction in which a failure
to fulfil such obligations may render this Agreement in its
current form void or inoperable;
(iv) no order or judgment of any court or governmental, statutory or
regulatory body having been issued or made prior to Completion
which has the effect of making unlawful or otherwise prohibiting
the transfer of the Business Assets and Shares as are required
for the Sellers to be able to comply with the requirements of
Schedule 2 other than an order or judgment which requires the
Purchaser to take actions contemplated by sub-clause (E);
(v) the City of Utrecht having communicated in writing to the Sellers
or either of them its unconditional waiver of any right of
pre-emption, option or right of first refusal which it has in
respect of the Company Properties (and the parties acknowledge
that no such waiver has been received at the date of this
Agreement); and
(vi) the Purchaser not having given notice in accordance with Clause
21(D) to the Sellers terminating this Agreement.
(B) Each of the Purchaser and the Sellers shall use all reasonable endeavours
to procure the satisfaction of the conditions set out in sub-clauses
(A)(i) to (v) inclusive.
(C) Without prejudice to sub-clause (B) above, the Purchaser shall, as
promptly as practicable, take all steps reasonably necessary (including
making filings and notifications within the periods
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required or otherwise legally allowed) to obtain all consents, approvals
or actions of any national or local governmental or regulatory body or
any other person which are required in order to complete the sale and
purchase of the Business Assets and the Shares, including, without
limitation:
(i) co-operating with and assisting the Sellers, the Company, the
Business Sellers and the Share Seller to obtain any consents,
approvals or actions of any governmental or regulatory body or
other person reasonably required by any of the Sellers, the
Company, the Business Sellers or the Share Seller;
(ii) notifying the Sellers, and providing copies, of any
communications from any such governmental or regulatory body in
relation to obtaining any such consent, approval or action; and
(iii) where reasonably requested by the Sellers, providing the Sellers
(or advisers nominated by the Sellers) with final draft copies of
all submissions and material communications to governmental or
regulatory bodies at such time as will allow the Sellers a
reasonable opportunity to provide comments on such submissions
and communications before they are submitted or sent and
providing the Sellers (or such nominated advisers) with copies of
all such submissions and communications in the form submitted or
sent.
The Purchaser acknowledges that it is not its current intention nor the
current intention of any other member of the Purchaser's Group to sell or
otherwise dispose of any of the Company Properties and/or the buildings
on them after acquiring the Company Properties or any of them pursuant to
this Agreement.
(D) Without prejudice to sub-clause (B) above, the Sellers shall, as promptly
as practicable, take all steps reasonably necessary (including making
filings and notifications within the periods required or otherwise
legally allowed) to obtain all consents, approvals or actions of any
national or local governmental or regulatory body or any other person
which are required in order to complete the sale and purchase of the
Business Assets and the Shares, including, without limitation:
(i) co-operating with and assisting the Purchaser and the Designated
Purchasers to obtain any consents, approvals or actions of any
governmental or regulatory body or other person reasonably
required by any of the Purchaser or the Designated Purchasers;
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(ii) notifying the Purchaser, and providing copies, of any
communications from any such governmental or regulatory body in
relation to obtaining any such consent, approval or action
(including, without limitation, the waiver referred to in
sub-clause A(v)); and
(iii) where reasonably requested by the Purchaser, providing the
Purchaser (or advisers nominated by the Purchaser) with final
draft copies of all submissions and material communications to
governmental or regulatory bodies at such time as will allow the
Purchaser a reasonable opportunity to provide comments on such
submissions and communications before they are submitted or sent
and providing the Purchaser (or such nominated advisers) with
copies of all such submissions and communications in the form
submitted or sent.
(E) Without prejudice to the generality of the Purchaser's obligations under
sub-clauses (B) and (C), the Purchaser shall where required to do so in
order to procure the satisfaction of conditions in sub-clause (A)(i) to
(iv) comply with all requirements of any governmental, regulatory or
other body from which any consent, approval or action is strictly
required in order to complete the sale and purchase of the Business
Assets and the Shares including:
(i) agreeing to hold separate or dispose of any part of the European
Culinary Brands Business (including the Company or any of the
Business Assets) or any part of the businesses of the Purchaser's
Group; and/or
(ii) entering into agreements which restrict the manner in which, or
whether, the European Culinary Brands Business or any part of the
businesses of the Purchaser's Group may carry on business in any
part of the world.
(F) To the extent that, in relation to any jurisdiction to which it applies,
the condition set out in sub-clause A(iii) has not been fulfilled or is
incapable of being satisfied on or before the Termination Date, the
Purchaser shall be entitled, in its absolute discretion, to waive the
condition set out in sub-clause A(iii) in relation to any jurisdiction in
which such condition has not been fulfilled or is incapable of being
satisfied, and to elect to proceed to Completion in relation to each
jurisdiction to which sub-clause A(iii) does not apply or in relation to
which sub-clause A(iii) has been satisfied PROVIDED THAT the Sellers
shall not be in breach of any provision of this Agreement as a result of
any such waiver.
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(G) To the extent that the condition set out in sub-clause (A)(v) has not
been fulfilled on or before the Termination Date, the Purchaser shall be
entitled, in its absolute discretion, to waive the condition set out in
sub-clause (A)(v) and to elect to proceed to Completion PROVIDED THAT the
Sellers shall not be in breach of any provision of this Agreement as a
result of any such waiver.
(H) Subject to Clause 21(D), if any fact which makes any of the conditions
set out in sub-clause (A)(i) to (v) incapable of being satisfied on or
before the Termination Date (taking account of the parties' obligations
under sub-clauses (B) to (E)) comes to the knowledge of any party at any
time prior to Completion then that party shall notify the other parties
of that fact and any party shall be entitled to terminate this Agreement
by written notice to the other parties PROVIDED THAT no party shall be
entitled to terminate this Agreement where that party is in breach of its
obligations under this Clause where such breach has contributed
materially to the non-satisfaction of the condition.
(I) Subject to Clause 21(D), if the conditions set out in sub-clause (A)(i)
to (v) are not satisfied on or before the Termination Date, or, in the
case of the condition set out in sub-clause (A)(v), waived by the
Purchaser, or if the notice referred to in sub-clause (A)(vi) is given at
any time prior to Completion, this Agreement shall automatically
terminate.
(J) If this Agreement is terminated or terminates in accordance with
sub-clauses (H) or (I) then the obligations of each party under this
Agreement (except for the provisions of this sub-clause (J), Clauses 31,
32, 34 to 46 shall automatically terminate PROVIDED THAT the rights and
liabilities of the parties which have accrued prior to termination shall
subsist and PROVIDED FURTHER THAT no rights and liabilities in respect of
the Warranties or in respect of any breach of Clause 8 shall subsist
following such termination (whether or not such rights and liabilities
have accrued prior to termination) and no action shall be commenced in
respect of the Warranties prior to Completion. If the parties proceed to
effect Completion notwithstanding that one or more of the conditions in
sub-clause (A) has not been satisfied, the parties shall be deemed to
have waived any such condition or conditions.
3. SALE AND PURCHASE
(A) On the terms set out in this Agreement, the Sellers shall sell or procure
the sale of, and the Purchaser shall purchase or procure the purchase by,
the relevant Designated Purchasers or by one or more other Purchaser's
Group companies of the Business Assets listed below
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as at and with effect from Completion (subject as set out in this
Agreement):
(i) the Business Goodwill;
(ii) the Business Plant and Machinery;
(iii) the Business Stocks;
(iv) the benefit (subject to the burden) of the Contracts;
(v) the Business Cash Float;
(vi) the Business IPR;
(vii) the Business Properties (in accordance with Schedule 9);
(viii) the Business IT Systems; and
(ix) subject to Clause 27, such of the Books and Records as relate
exclusively to the Business
(together, the "BUSINESS ASSETS") on the terms that, in relation to the
UK Business Assets (other than any Business Properties or Business IPR
comprised therein) the same covenants shall be deemed to be given by the
Sellers on Completion in relation to such UK Business Assets as are
implied under Part I of the LP(MP)A where a disposition is expressed to
be made with full title guarantee and, in relation to Business Assets
other than UK Business Assets (other than any Business Properties or
Business IPR comprised therein), that such Business Assets shall be free
from all security interests, options, equities, claims, liens, charges
and encumbrances and all other rights exercisable or claims by third
parties (save as disclosed in the Disclosure Letter (other than in
respect of the Business Properties located in Sweden) and save for any
Permitted Encumbrances), in each case excluding the following assets
(the "EXCLUDED ASSETS"):
(a) the Receivables;
(b) cash at bank and any current financial investments
used in or held on account of that part of the
Business carried on by each Business Seller;
(c) amounts recoverable in respect of Taxation arising
in respect of any period of account for Taxation
purposes ending on or before Completion or, in the
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case of a Straddle Period, the portion of that
period ending on Completion, or in respect of any
acts, events or occurrences occurring (or being
deemed to have occurred), on or before Completion
other than such amounts taken into account in the
Completion Stocks Statement;
(d) save as provided in Clause 19, the benefit of any
insurance policy of any Business Seller or any
other member of the Sellers' Group relating to the
European Culinary Brands Business or any of the
Business Assets or Business Employees;
(e) any information which relates to the sale or
proposed sale of the whole or part of the Business
including such information which relates to the
negotiation of the transactions contemplated by
this Agreement;
(f) the Excluded IPR;
(g) the assets listed in Attachment 10; and
(h) the Raguletto Marks.
(B) On the terms set out in this Agreement, the Sellers shall (without any
obligation on the Purchaser to pay any consideration in addition to that
payable pursuant to Clause 5) sell or procure the sale of, and the
Purchaser shall purchase or procure the purchase by the relevant
Designated Purchasers or by one or more other Purchaser's Group companies
of each of the Raguletto Marks as at and with effect from the earlier of:
(i) 4th October, 2002; and
(ii) the date on which all use by the Sellers' Group of that Raguletto
▇▇▇▇ in the territory to which that registration applies ceases
as notified by the Sellers to the Purchaser,
which (in relation to each Raguletto ▇▇▇▇) is referred to in this
Agreement as the "RAGULETTO SALE DATE" for that Raguletto ▇▇▇▇.
(C) On the terms set out in this Agreement, the Sellers shall sell, or
procure the sale of, and the Purchaser shall purchase or procure the
purchase by the relevant Designated Purchaser of, the full legal and
beneficial interest in the Shares as at and with effect from Completion
together with all rights attached or accruing to them at
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Completion. The Shares shall be sold free from all security interests,
options, equities, claims, liens, charges and encumbrances and all other
rights exercisable by or claims by third parties (including rights of
pre-emption). The relevant Designated Purchaser shall be entitled from
Completion to exercise all rights attached or accruing to the Shares
including, without limitation, the right to receive all dividends,
distributions or any return of capital declared, paid or made by the
Company on or after the Completion Date.
(D) The Sellers (for themselves and on behalf of the other members of the
Sellers' Group) waive all rights of pre-emption over any of the Shares
conferred upon them in any way and shall procure that no later than
Completion all rights of pre-emption and other similar or comparable
rights over and in respect of all or any of the Shares conferred upon or
held by any other person are waived so as to permit the sale and purchase
of such Shares hereunder.
(E) Save to the extent set out in sub-clause (A), for the avoidance of doubt,
Part I of the LP(MP)A shall not apply for the purpose of this Clause 3.
(F) In consideration for the sale to it (or the relevant Designated
Purchaser) of the Business Assets and the Shares and the grant to it or
another member of the Purchaser's Group of the licences referred to in
clauses 3(G)(iii), 10(K) and 20(D), the Purchaser shall or shall procure
that the relevant Designated Purchasers or member of the Purchaser's
Group shall:
(i) discharge and indemnify each member of the Sellers' Group in
respect of the Assumed Liabilities in accordance with Clause 13;
and
(ii) pay the Debt Free Price in accordance with the provisions of this
Agreement and any additional sums, if any, pursuant to the
adjustments set out in Clause 7 and paragraphs 3 of Part 1 or Part
2 of Schedule 10.
(G) With effect from Completion:
(i) the Sellers shall transfer to the Purchaser or to a member of the
Purchaser's Group designated by the Purchaser, or procure the
transfer to the Purchaser or to such member of the Purchaser's
Group of, each of the Business Domain Names;
(ii) the Purchaser shall transfer to the Sellers, or procure the
transfer to the Sellers of, any Excluded Domain Name which is
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found to be registered in the name of (or on behalf of) any member
of the Purchaser's Group;
(iii) the Sellers shall grant, or shall procure the grant to the
Purchaser or to a member of the Purchaser's Group designated by
the Purchaser of a non-exclusive, irrevocable, perpetual,
royalty-free licence to use the Shared Internet Content in
internet web sites operated by any member of the Purchaser's Group
PROVIDED THAT to the extent that such Shared Internet Content
comprises or contains any of the Licensed Rights, such licence
shall terminate at the expiry or earlier termination of the
licence relating to those Licensed Rights entered into pursuant to
this Agreement; and
(iv) each of the parties shall, from time to time, at the request of
the other party, execute or procure the execution of all documents
as may be reasonably necessary to give effect to the provisions of
this sub-clause (G).
(v) each of the parties shall co-operate in good faith with the other
on an ongoing basis so as to minimise the risk of confusion on the
part of the public as to the origin of goods which are marketed,
offered for sale, promoted or supplied on the Internet by or on
behalf of that party under or by reference to a trade ▇▇▇▇ in
which a member of the Sellers' Group (in respect of the Purchaser)
or a member of the Purchaser's Group (in respect of the Sellers)
also owns rights any where in the world, including where such
trade ▇▇▇▇ is included in a domain name of the relevant Internet
web-site.
(H) The Purchaser acknowledges that neither it nor any other member of the
Purchaser's Group shall obtain or (in the case of a Company) retain any
rights in respect of any of the Excluded Domain Names, notwithstanding
the sale by or on behalf of the Sellers (or any other member of the
Sellers' Group) to the relevant Designated Purchasers of any Business IPR
which may form part of such Excluded Domain Name.
(I) The Sellers acknowledge that neither they nor any other member of the
Sellers' Group shall obtain any rights in respect of any of the Business
Domain Names, notwithstanding the retention by or on behalf of the
Sellers (or any other member of the Sellers' Group) of any Excluded IPR
or the granting of any licence to the Sellers (or any other member of the
Sellers' Group) by any member of the Purchaser's Group of any Licensed
Back Rights which, in either case, may form part of such Business Domain
Name.
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4. ▇▇▇▇▇▇▇ BUSINESS
(A) Without prejudice to Clause 2, the sale and purchase of the Business
Assets of the ▇▇▇▇▇▇▇ Business shall be subject to the further conditions
that:
(i) ▇▇▇▇▇▇▇ Alimentaire S.A. has communicated in writing to the
Sellers or either of them its consent to the assignment of the
▇▇▇▇▇▇▇ Licence to the Purchaser or to another member of the
Purchaser's Group; and
(ii) the Chambre de Commerce et d'Industrie de Dunkerque has
communicated in writing to the Sellers or either of them its
unconditional waiver of any pre-emption right, option or right of
first refusal which it has in respect of the Business Properties
located at Grande Synthe, France,
and, subject to sub-clause (C), the Sellers shall not be required to
procure the sale of, and the Purchaser shall not be obliged to procure
the purchase of, the ▇▇▇▇▇▇▇ Business until both such conditions have
been satisfied or, subject to sub-clause (F), waived.
(B) Subject to sub-clause (C), pending transfer of the Business Assets
referred to in sub-clause (A), the Sellers and the Purchaser shall use
all reasonable endeavours to procure that the conditions referred to in
sub-clause (A) are satisfied.
(C) If the conditions in sub-clause (A) have not been satisfied by 30th
April, 2001 then, with effect from that time, the obligations of the
Sellers and the Purchaser set out in sub-clause (B) shall immediately
cease, neither of the Sellers nor any Business Seller shall be obliged to
sell or procure the sale of, and the Purchaser shall not be obliged to
purchase or procure the purchase of, any of the Business Assets of the
▇▇▇▇▇▇▇ Business and, in those circumstances:
(i) the Sellers (on behalf of Bestfoods France S.A. and Generale
Condimentaire S.A.S.) shall pay to the Purchaser on behalf of the
relevant Designated Purchaser an amount equal to E22,000,000
together with interest thereon at the Agreed Rate from the
Completion Date to 30th April, 2001;
(ii) Bestfoods France S.A. and Generale Condimentaire S.A.S. shall
cease to be "Business Sellers" for the purposes of this Agreement
and Schedule 6 shall be amended accordingly;
(iii) each of the employees of Bestfoods France S.A. and Generale
Condimentaire S.A.S. shall cease to be a Business Employee;
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(iv) the "DEBT FREE PRICE" in Clause 5(A) shall be amended to be
E978,000,000; and that part of the Debt Free Price allocated to
the ▇▇▇▇▇▇▇ Business shall be reduced to nil; and
(v) the Target Stocks Amount shall be amended to be E19,700,000.
(D) If the conditions in sub-clause (A) are satisfied before 30th April, 2001
then the Sellers shall promptly serve a notice on the Purchaser
indicating that such is the case and shall provide copies of the written
communications referred to in sub-clause (A)(i) and (ii) to the Purchaser
together with such notice.
(E) If the conditions in sub-clause (A) have not been satisfied by the
Completion Date, until they are satisfied or, if earlier, 30th April,
2001, the Sellers shall procure that the ▇▇▇▇▇▇▇ Business will be carried
on in the ordinary and usual course and that, subject to Clause 8(B), in
particular (but without limitation to the generality of the foregoing)
the Sellers shall procure that the acts or matters specified in
sub-clause 8(C) do not occur in relation to the ▇▇▇▇▇▇▇ Business without
the prior written consent of the Purchaser (such consent not to be
unreasonably withheld or delayed). The provisions of Clause 8(A)(ii)(c)
shall apply with respect to the ▇▇▇▇▇▇▇ Business during this period.
(F) To the extent that the conditions in sub-clause (A) have not been
satisfied on or before 30th April, 2001, the Purchaser shall be entitled,
in its absolute discretion, to waive those conditions and elect to
purchase the ▇▇▇▇▇▇▇ Business PROVIDED THAT the Sellers shall not be in
breach of any provision of this Agreement as a result of any such waiver.
5. CONSIDERATION
(A) The initial aggregate cash consideration payable at Completion for the
sale of the Business Assets and the Shares and for the grant of the
licences referred to in Clauses 3(G)(iii), 10(K) and 20(D) shall be the
payment by the Purchaser (on behalf of the relevant Designated
Purchasers) to the Sellers (on behalf of themselves and the Business
Sellers and Share Sellers) of an amount equal to E1,000,000,000 (the
"DEBT FREE PRICE") (such payment to be made in accordance with Clause
9(C) and Schedule 2).
(B) Following determination of the Completion Stocks Amount in accordance
with the provisions of Clause 7, the Debt Free Price shall be adjusted
from time to time to take account of payments made pursuant to that
Clause, Clause 4 and paragraphs 3 of Part 1 or Part 2 of Schedule 10 in
order to determine the final aggregate cash
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consideration for the sale of the Business Assets and the Shares and for
the grant of the licences referred to in Clauses 3(G)(iii), 10(K) and
20(D) (the "FINAL CASH CONSIDERATION").
(C) The Debt Free Price and the Final Cash Consideration, any payments made
pursuant to Clause 7 or paragraphs 3 of Part 1 or Part 2 of Schedule 10
and any other consideration for the sale of the Business Assets and the
Shares and for the grant of the licences referred to in Clauses
3(G)(iii), 10(K) and 20(D) shall be exclusive of any amounts in respect
of VAT.
(D) The Final Cash Consideration shall be apportioned between countries and
between the Business Assets and Shares and the licences referred to in
sub-clause (A) on the basis set out in Schedule 8 and such apportionment
shall be adopted by the Sellers and the Purchaser and each relevant
member of the Sellers' Group and the Purchaser's Group for all purposes
(including Tax).
6. THE COMPANY
(A) The Sellers undertake to procure that, to the extent permissible under
applicable law, at Completion the Company is free of indebtedness and, in
the event and to the extent that the Company is not free of indebtedness
at Completion, the Sellers shall at Completion pay a cash sum to the
Company of an amount equal to the indebtedness of the Company at that
time.
(B) The Sellers undertake to procure that the Company does not dispose of or
otherwise grant or create any third party rights over any Company
Property prior to Completion.
7. STOCKS ADJUSTMENT
(A) Each of the parties shall comply with the requirements relating to that
party set out in Schedule 5 in relation to the Completion Stocks
Statement.
(B) If the Completion Stocks Amount is less than the Target Stocks Amount
then the Sellers (on behalf of the relevant member(s) of the Sellers'
Group) shall pay the amount of the difference between the Completion
Stocks Amount and the Target Stocks Amount, together with interest
thereon at the Agreed Rate (accrued daily and compounded monthly) for the
period from (and including) the Completion Date to (but excluding) the
date of payment, to the Purchaser (on behalf of the relevant Designated
Purchaser(s)) within five Business Days of finalisation of the Completion
Stocks Statement in accordance with Part A of Schedule 5. If the
Completion Stocks Amount is greater
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than the Target Stocks Amount then the Purchaser (on behalf of the
relevant Designated Purchaser(s)) shall pay the amount of the difference
between the Completion Stocks Amount and the Target Stocks Amount,
together with interest thereon at the Agreed Rate (accrued daily and
compounded monthly) for the period from (and including) the Completion
Date to (but excluding) the date of payment, to the Sellers (on behalf of
the relevant member(s) of the Sellers' Group) within five Business Days
of finalisation of the Completion Stocks Statement in accordance with
Part A of Schedule 5.
(C) All payments referred to in this Clause shall be made in immediately
available funds in Euros to the Purchaser's Bank Account or (as the case
may be) the Sellers' Bank Account. Any payment made pursuant to this
Clause (other than interest) shall constitute an adjustment to the Debt
Free Price.
8. CONDUCT OF BUSINESS BEFORE COMPLETION
(A) (i) Subject to sub-clause (B), between the date of this Agreement and
Completion the Sellers shall procure that the European Culinary
Brands Business will be carried on in the ordinary and usual
course and shall not make (or agree to make) any payment other
than routine payments in the ordinary and usual course of trading
and consistent with past practice. Subject to sub-clause (B), in
particular (but without prejudice to the generality of the
foregoing) the Sellers shall procure that the acts or matters
specified in sub-clause (C) do not occur in relation to the
European Culinary Brands Business without the prior written
consent of the Purchaser (such consent not to be unreasonably
withheld or delayed).
(ii) Pending Completion, the Sellers shall and shall procure that the
Business Sellers and the Share Seller shall:
(a) use their reasonable endeavours to ensure that any
changes which occur to the information in
Attachment 4 are reflected in amendments made to
that Attachment, provided always that the Sellers
shall procure that no Intellectual Property listed
in one Part of Attachment 4 will be moved to be
listed in another part of Attachment 4 without the
prior agreement of the Purchaser;
(b) ensure that the assignor or licensor under the
Intellectual Property Assignments and the
Intellectual Property Licences is the beneficial
owner of the rights to be assigned or granted by
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the Sellers and/or the Business Sellers to the
Purchaser pursuant to the Intellectual Property
Assignments and the Intellectual Property Licences;
(c) subject to Clause 37, on reasonable written notice
allow representatives of the Purchaser access to
the Books and Records of the Company and the
Business on appointment during normal Working Hours
and make available appropriate management of the
Company and the Business to hold meetings on
reasonable notice at such locations as the Sellers
may reasonably determine and for such periods as
may reasonably be necessary, in each case for the
sole purposes of facilitating preparations for
Completion and the continuing arrangements between
the Seller's Company and the Purchaser's Company
commencing at Completion, save that it shall be
reasonable for the Sellers not to participate in
any such arrangements where the Trustee considers
it necessary for the Sellers not to participate;
and
(d) promptly disclose to the Purchaser information
which may constitute a breach of any of the
Warranties if they were to be repeated at any time
before Completion by reference to the facts and
circumstances then subsisting, where such
information comes to the notice of those persons
whose names are listed in paragraph (i)(a) of the
definition of "SO FAR AS THE SELLERS ARE AWARE" in
Schedule 1.
(iii) Pending Completion, the Sellers shall and shall procure that the
Business Sellers and the Share Seller shall notify the Purchaser
prior to, and consult with the Purchaser in connection with,
commencing any enforcement proceedings or resolving any legal
proceedings or disputes in respect of:
(a) the Business IPR or know-how proprietary to a
member of the Sellers' Group which is used
exclusively in the European Culinary Brands
Business;
(b) any Intellectual Property or know-how which is the
subject of any of the Licences In;
(c) any of the Raguletto Marks;
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(d) any Intellectual Property proprietary to the
Company; or
(e) any Licensed Rights, to the extent that such
commencement or resolution of such proceedings or
disputes would, or is likely to, have a material
adverse effect on any part of the European Culinary
Brands Business in any territory.
(iv) Prior to Completion, each party shall give to the other parties
such information as they may reasonably require (including,
without limitation, forecasts) in order to procure that the
arrangements contemplated by the Co-packing Agreements may
proceed after Completion.
(B) Sub-clause (A) shall not operate so as to restrict or prevent:
(i) any matter reasonably undertaken in response to events beyond the
control of any member of the Sellers' Group and the Company, with
the intention of minimising any adverse effect of such events
where it is not reasonably practicable in the circumstances for
the Sellers to have obtained the consent of the Purchaser before
undertaking such matter PROVIDED THAT the Sellers shall inform the
Purchaser of the relevant matter and circumstances promptly after
doing so;
(ii) the completion or performance of any obligations undertaken
pursuant to any contract or arrangement entered into prior to the
date of this Agreement to the extent that such Completion or
performance is due prior to Completion;
(iii) any matter undertaken at the request of the Purchaser;
(iv) any matter contemplated by this Agreement or any action taken by
any member of the Sellers' Group or the Company pursuant to this
Agreement;
(v) any action or omission which any member of the Sellers' Group or
the Company is required to take or omit to take by any applicable
law or regulation or any Tax Authority;
(vi) any disposal of Stocks, obsolete assets or redundant assets, or
any payment of cash, in each case consistent with past practice in
the running of the European Culinary Brands Business;
(vii) the repayment of borrowings or indebtedness in the nature of
borrowings to persons other than members of the Sellers' Group
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where such borrowings are replaced by borrowings or indebtedness
in the nature of borrowings from members of the Sellers' Group; or
(viii) the payment of one or more cash dividends by the Company.
(C) The acts and matters referred to in sub-clause (A) are as follows:
(i) a disposal of any of the tangible fixed assets comprised in the
Business Assets or of the tangible fixed assets of the Company
where in any such case such disposal is of tangible fixed assets
of an individual value in excess of E100,000 or an aggregate value
in excess of E250,000;
(ii) (in relation to the Company) any declaration, authorisation,
making or payment of a dividend in specie or dividend in kind or
other distribution;
(iii) (in relation to the Company) any creation, allotment or issue or
any grant of any option over or other right to subscribe or
purchase, or any redemption or purchase of, any share or loan
capital or securities of the Company or securities convertible
into any of the foregoing;
(iv) any creation or grant of any option, right to acquire, mortgage,
charge, pledge, lien, debenture or other encumbrance (other than a
Permitted Encumbrance) on, over or affecting any of the Business
Assets or any of the assets of the Company;
(v) the making of any loan by the Company (other than the granting of
trade credit in the ordinary and usual course of business or other
loans in the ordinary and usual course of business) to any person
(other than to a member of the Sellers' Group or any of the
Employees under the terms of their employment);
(vi) any change to the accounting practices or policies of the Company
except where required by applicable accounting practices or
principles;
(vii) the acquisition, whether by merger, consolidation, formation or
otherwise, of any body corporate or business or the entering into
of any partnership or joint venture arrangement which involves
investment and/or the incurring of expenditure by the Business or
the Company in excess of E100,000 in aggregate;
(viii) the entry into of any capital commitment (or making of any bid or
offer which may lead to a commitment) having a value or
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involving expenditure in excess of E100,000 or which is a long
term or unusual nature;
(ix) in relation to the Company, borrowing any money (except borrowings
from banks and other financial institutions which do not, in
aggregate, exceed E5 million);
(x) making any material change to the terms and conditions of
employment of any Employee (including in relation to Benefits) in
a manner which is inconsistent with past practices and current
guidelines applicable within the Sellers' Group (other than salary
reviews in the ordinary course of business) or terminating (except
for good cause) or transferring (other than to a Business Seller
in relation to the European Culinary Brands Business or to the
Company) the employment of any Senior Employee;
(xi) the grant of a licence or assignment:
(a) in respect of know-how proprietary to a member of
the Sellers' Group which is used exclusively in the
European Culinary Brands Business or in respect of
the Business IPR; or
(b) in respect of any Intellectual Property proprietary
to the Company;
(xii) permitting any insurances to lapse or doing anything which makes
any policy of insurance void or voidable;
(xiii) permitting any Intellectual Property owned by the Company and/or
any Business IPR and/or any of the Licensed Rights to lapse as a
result of the non-payment of any renewal fees, prolongation fees
or any other official fees when due but (only in respect of the
Licensed Rights) only to the extent that such lapse would, or is
likely to have, a material adverse effect on any part of the
European Culinary Brands Business in any territory;
(xiv) other than to the extent beyond the reasonable control of the
Sellers' Group and other than in the ordinary course of business,
any cancellation of or delay to the introduction of any new
product of the European Culinary Brands Business (or any part
thereof) or any advertising or media programmes or product
promotions;
(xv) the modification or termination of any material Contract; and
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(xvi) the entry into of any agreement to do any of the acts and matters
specified in this sub-clause.
9. COMPLETION
(A) Completion of the sale and purchase of the Business Assets and the Shares
(subject as provided in sub-clause (E)) shall take place at 10.00 a.m. on
the Completion Date at the offices of ▇▇▇▇▇▇▇▇▇ and May, ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ and at such other places as are specified in, or
agreed in accordance with, Schedule 2.
(B) Each of the Sellers and the Purchaser shall (subject as provided in
sub-clause (E)) do, or procure the doing of, all those things
respectively listed in relation to them in Schedule 2 at Completion or at
such other time as is specified in Schedule 2.
(C) The Debt Free Price shall be payable by or on behalf of the Purchaser in
immediately available funds at Completion as referred to in Schedule 2.
(D) Receipt of funds in accordance with sub-clause (C) shall constitute a
good discharge of the Purchaser in respect of the payment of the Debt
Free Price but not, for the avoidance of doubt, in respect of the
Purchaser's obligations under Clause 4 and Clause 7. The Purchaser shall
not be concerned to see that the moneys transferred are applied in paying
the Share Seller or the Business Sellers in accordance with their
respective entitlements.
(E) At Completion, the Purchaser shall, subject to Clause 4, be obliged to
complete (or procure the completion of) the sale and purchase of the
Business Assets and the Shares and to pay the Debt Free Price and the
Sellers shall, subject to Clause 4, be obliged to comply with the
requirements of Schedule 2.
10. ACTION AFTER COMPLETION
(A) At the request of the Purchaser, the Sellers shall procure that the
Business Sellers shall, for a period of six months following Completion,
join with the Purchaser (or the relevant Designated Purchaser) in sending
out notices and letters in such form as the Purchaser may reasonably
require to all of those suppliers and customers in relation to the
European Culinary Brands Business and other business contacts relating to
the European Culinary Brands Business informing them of the transfer of
the European Culinary Brands Business.
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(B) The Sellers shall procure that originals of all notices, correspondence,
information, orders or enquiries relating solely to the European Culinary
Brands Business and copies of all notices, correspondence, information,
orders or enquiries relating partly to the European Culinary Brands
Business and partly to one or more of the remaining businesses of the
Sellers' Group which are received by any member of the Sellers' Group on
or after Completion shall be passed as soon as practicable and in any
event, within 10 Business Days of such receipt to the relevant members of
the Purchaser's Group or as the Purchaser may from time to time
designate.
(C) The Purchaser shall procure that originals of all notices,
correspondence, information, orders or enquiries relating solely to one
or more of the remaining businesses of the Sellers' Group and copies of
all notices, correspondence, information, orders or enquiries relating
partly to one or more of the remaining businesses of the Sellers' Group
and partly to the European Culinary Brands Business which are received by
the Purchaser's Group on or after Completion shall be passed as soon as
practicable and in any event, within 10 Business Days of such receipt to
the relevant member of the Sellers' Group as the Sellers may from time to
time designate.
(D) The Sellers shall procure that each Business Seller shall, as soon as
reasonably practicable after receipt thereof and in any event, within 10
Business Days of such receipt, pay to the Purchaser (on behalf of the
relevant Designated Purchaser) an amount equal to any monies which it
receives after Completion to the extent that such monies are attributable
to the Purchaser (or the Designated Purchaser) and have been paid in
connection with the Business Assets.
(E) The Purchaser shall, as soon as reasonably practicable after receipt
thereof and in any event, within 10 Business Days of such receipt, pay to
the relevant member of the Sellers' Group an amount equal to any monies
which any member of the Purchaser's Group receives after Completion to
the extent that such monies are attributable to that member of the
Sellers' Group and were not part of the Business Assets.
(F) For so long after Completion as any Seller (or any other member of the
Sellers' Group) remains the registered holder of any of the Shares, the
Sellers shall (and shall procure that other members of the Sellers'
Group) hold them and any distributions, property and rights deriving from
them in trust for the relevant Designated Purchaser and deal with the
Shares and any distributions, property and rights deriving from them as
the Purchaser (on behalf of the relevant Designated Purchaser) directs.
In particular, the Sellers shall exercise all voting rights carried by
such Shares as the
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Purchaser (on behalf of the relevant Designated Purchaser) directs and
shall execute an instrument of proxy or other document which enables the
Purchaser (on behalf of the relevant Designated Purchaser) or its
representative to attend and vote at any meeting of the Company.
(G) As soon as possible after Completion and with respect to any UK Business
Assets which are plant and machinery for the purposes of Part II of the
Capital Allowances Act 1990 and which are also fixtures (as that term is
defined in section 51(2) of that Act) and which the Sellers or any member
of the Sellers' Group have been claiming allowances as fixtures, the
Sellers shall procure that the relevant member of the Sellers' Group
shall, and the Purchaser shall procure that the relevant Designated
Purchaser shall, jointly elect by notice pursuant to section 59B(2) of
that Act to determine in accordance with section 59B and 59C of that Act
how much of the consideration payable under this Agreement should
reasonably fall to be treated as expenditure on the provision of such
fixtures.
(H) In respect of all the registered Intellectual Property which is owned by
the Company or which has been transferred to the Purchaser's Group under
the Intellectual Property Assignments, the Sellers shall as soon as
reasonably practicable, and shall in any event use their reasonable
endeavours to do so within 3 months of Completion, deliver to the
Purchaser:
(i) subject to paragraph (ii) below, the originals of all registration
certificates and renewal certificates and (where no registration
has yet been obtained) the applicable receipts; or
(ii) where no originals exists for the documents described in (i) above
then the best available copy (if any).
(I) In respect of all the registered Intellectual Property and applications
for registration of Intellectual Property which are owned by the Company
or which have been transferred to the Purchaser's Group under the
Intellectual Property Assignments, the Sellers shall procure (i) for the
period of 12 months from Completion, that all renewal fees which a member
of the Sellers' Group becomes aware are payable, are paid within the
timeframes for payment, and (ii) that a copy of all correspondence
received by a member of the Sellers' Group regarding the maintenance of
such registrations and the prosecution of such applications is, in each
case, provided to the Purchaser promptly. The Purchaser shall reimburse
the Sellers, on behalf of the relevant member of the
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Sellers' Group, in a timely manner for all external costs incurred by
that member of the Sellers' Group in connection with this Clause.
(J) If the Sellers or Business Sellers have not assigned to the Purchaser or
to another member of the Purchaser's Group by operation of this Agreement
or under any of the Intellectual Property Assignments any Business IPR,
the Sellers undertake to procure that the relevant Business Seller
assigns such Business IPR to the Purchaser or to another member of the
Purchaser's Group nominated by the Purchaser.
(K) The Seller shall procure that at Completion relevant members of the
Sellers' Group grant to the Purchaser (or, at the Purchaser's election,
another member of the Purchaser's Group) a perpetual, non-exclusive
royalty-free, irrevocable, assignable licence (with the right to
sub-license) to use any Intellectual Property (other than the Excluded
IPR, the Raguletto Marks, any trade ▇▇▇▇ (registered or unregistered) and
patent or any registered design (or application for a registered design))
which was used (but not exclusively used) in the Business in the twelve
months prior to Completion.
11. THIRD PARTY CONSENTS FOR THE SALE OF BUSINESS ASSETS
(A) Subject to sub-clause (C), where any consent, approval or agreement of
any third party is required to the transfer of any of the Business Assets
or where any governmental or regulatory procedure, application or other
requirement must be complied with to enable such transfer lawfully to
take place (other than, in either case, in relation to the transfer of
any Contract or the performance of any Contract by any Designated
Purchaser) and such consent, approval or agreement has not been obtained
or that procedure, application or other requirement has not been complied
with (as the case may be) at or before Completion, then the following
provisions shall apply:
(i) the sale of the relevant Business Assets shall not take effect,
notwithstanding Completion, until that consent, approval or
agreement has been obtained or that procedure, application or
other requirement has been complied with (as the case may be);
and
(ii) the Sellers and the Purchaser shall use their respective
reasonable endeavours after Completion to obtain the consent,
approval or agreement or to ensure that the relevant procedure,
application or other requirement is complied with (as the case
may be) as soon as possible.
(B) After Completion, and until such time as any consent, approval or
agreement referred to in sub-clause (A) is obtained, the Business
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Sellers shall be deemed to hold the benefit of the relevant Business
Asset referred to in sub-clause (A) on trust for the relevant Designated
Purchaser and shall pay to the Purchaser or the relevant Designated
Purchaser promptly upon receipt any sums received by it in relation to
such Business Asset.
(C) This Clause shall not apply to the Business Properties.
12. CONTRACTS
(A) Subject to sub-clause (C), where any consent, approval or agreement of
any third party is required to enable a Designated Purchaser to perform
any Contract after Completion or to enable any Business Seller to
transfer the benefit or burden of any Contract to a Designated Purchaser,
then the following provisions shall apply:
(i) this Agreement shall not constitute an assignment or an attempted
assignment of the relevant Contract if or to the extent that such
an assignment or attempted assignment would constitute a breach
of such Contract;
(ii) after Completion each Business Seller and the relevant Designated
Purchaser shall use their respective reasonable endeavours to
obtain the consent, approval or agreement of the other party to
whatever assignment, transfer or novation is necessary to enable
the relevant Designated Purchaser to perform any such Contract
after Completion or, as the case may be, to transfer the benefit
and burden of any such Contract to the relevant Designated
Purchaser; and
(iii) after Completion, until the consent, approval or agreement
referred to in sub-clause (A) is obtained, the relevant Designated
Purchaser shall, unless the relevant Contract prohibits it,
perform all the obligations of such Business Seller under such
Contract as agent for or sub-contractor to such Business Seller
and indemnify each member of the Sellers' Group in respect of such
performance or, if the relevant Contract prohibits the relevant
Designated Purchaser from so acting as agent and sub-contractor or
the relevant Designated Purchaser cannot be permitted to act as
agent and sub-contractor because of confidentiality obligations,
such Business Seller shall, at the cost of the relevant Designated
Purchaser and to the extent that such Business Seller is able, do
all such acts and things as the relevant Designated Purchaser may
reasonably require to enable due performance of the Contract and
to provide for the relevant Designated Purchaser the benefits,
subject to the burdens, of the
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Contract, and the relevant Designated Purchaser shall indemnify
each member of the Sellers' Group in respect of all such acts and
things. For this purpose, it shall not be reasonable to require
any Business Seller to make any payment unless the relevant
Designated Purchaser has first paid such Business Seller
sufficient cleared funds to make such payment.
(B) Subject to sub-clause (C), after Completion, and until such time as the
consent, approval or agreement referred to in sub-clause (A) is obtained,
the relevant Business Seller shall be deemed to hold the benefit of the
relevant Contract referred to in sub-clause (A) (except for any Contract
relating to Intellectual Property or know-how where any third party
consent is necessary) on trust for the relevant Designated Purchaser.
(C) No effect shall, however, be given to sub-clauses (A) and (B) if there is
a material risk that the relevant Contract would be treated as repudiated
by the third party or if the Sellers or the relevant Business Seller
would be in breach of its obligations to any third party under any such
Contract if effect were given thereto.
(D) If any consent, approval or agreement referred to in sub-clause (A) is
not received within 12 months of Completion (or such longer period as the
Purchaser may specify) the relevant Contract shall, if the Purchaser
elects by written notice to the Sellers, be treated as having been
excluded from the sale and purchase under this Agreement so that the
parties' obligations in respect of that Contract shall end immediately
after such election is made. Upon such election by the Purchaser, the
parties shall discuss in good faith the amount, if any, which it is fair
and reasonable that the Sellers should repay to the Purchaser as a
consequence of such exclusion of the relevant Contract.
(E) Subject to the other provisions of this Clause and to Clause 13, from the
Completion Date the relevant Designated Purchaser shall carry out,
perform and complete all the obligations and liabilities to be performed
under the Contracts, save that the Business Sellers shall be responsible
for carrying out, performing and completing all the obligations and
liabilities which fell due to be performed before Completion.
13. ASSUMED LIABILITIES, PAYABLES AND RETAINED LIABILITIES
(A) Subject to sub-clause (G), the Purchaser (on behalf of the relevant
Designated Purchasers) hereby agrees with the Sellers (for themselves and
as trustees for each other member of the Sellers' Group) that it will (or
will procure that a member of the Purchaser's Group will)
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duly and properly perform, assume and pay and discharge when due, and
indemnify each member of the Sellers' Group against, all Assumed
Liabilities.
(B) In this Agreement "ASSUMED LIABILITIES" means:
(i) all liabilities expressly assumed by the Purchaser pursuant to the
other provisions of this Agreement (including, without limitation,
pursuant to sub-clause 12(E));
(ii) all liabilities incurred from immediately after Completion and
thereafter in respect of the Business; and
(iii) all liabilities arising in connection with the condition of, or
any defect in, any Business Stocks (other than finished Stocks
which are handled and stored in accordance with practices
generally used by members of the Sellers' Group in relation to the
Business at Completion),
PROVIDED THAT Assumed Liabilities shall not include (i) liabilities of
or in relation to Tax, which are governed by sub-clauses (D), (E) and
(F); (ii) liabilities in respect of the Business Properties or any
Immovable Property owned, occupied or used in or for the Business at
Completion; (iii) liabilities in relation to Environmental Matters
(whether arising before or after Completion); and (iv) liabilities in
relation to employment matters and pensions (which are dealt with in
Clause 17 and Schedule 10).
(C) The Sellers (on behalf of the relevant Business Sellers) hereby agree
with each member of the Purchaser's Group that they will duly and
properly perform, assume and pay and discharge when due, and indemnify
each member of the Purchaser's Group against all Payables and all
liabilities incurred on or prior to Completion in respect of the Business
other than (i) the Assumed Liabilities; (ii) liabilities of or in
relation to Tax (which are governed by sub-clauses (D), (E) and (F);
(iii) liabilities in respect of the Business Properties or any Immovable
Property owned, occupied or used in or for the Business at Completion;
(iv) liabilities in relation to employment matters and pensions (which
are dealt with in Clause 17 and Schedule 10); and (v) liabilities in
relation to Environmental Matters (whether arising before or after
Completion).
(D) (i) The Sellers shall file (or procure to be filed) with each
relevant Tax Authority all Tax returns in respect of or relating
to the Business, any of the Business Assets or the use of any of
the Business Assets which are required to be filed in
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respect of any period of account for Taxation purposes ending on
or before Completion;
(ii) the Purchaser shall file (or procure to be filed) with each
relevant Tax Authority all Tax returns in respect of or relating
to the Business, any of the Business Assets or the use of any of
the Business Assets which are required to be filed in respect of
any period of account for Taxation purposes ending after
Completion;
(iii) in relation to any Tax return in respect of or relating to the
Business, any of the Business Assets or the use of any of the
Business Assets which is required to be filed in respect of any
Joint Period, such Tax return shall be submitted to the Sellers in
draft form at least 40 Business Days prior to the first to occur
of (a) the date such Tax return is filed and (b) the due date for
the submission of such Tax return to the appropriate Tax
Authority. If the Sellers object to any item in such return, the
Sellers shall, within 10 Business Days after receipt of such
return, notify the Purchaser in writing of their objection and the
Sellers and the Purchaser shall negotiate in good faith to resolve
such objection. If the Purchaser and the Sellers are unable to
reach such agreement within five Business Days after receipt by
the Purchaser of notice of the Sellers' objections, the dispute
shall be referred for determination to an Expert who shall act as
an expert and not an arbitrator and whose findings shall, in the
absence of manifest error, be final and binding and deemed to have
been accepted and approved by the Sellers and the Purchaser. The
fees and costs of the Expert incurred under this Clause shall be
paid as to one-half by the Sellers and as to one-half by the
Purchaser (unless otherwise directed by the Expert (who shall have
the authority to make such direction if he deems it equitable);
(iv) to the extent that any Taxes are paid by the Purchaser (or if it
procures that the Business Assets are acquired by another person,
that person) in respect of or relating to any of the Business
Assets or the use of any of the Business Assets in any Joint
Period, the Sellers (on behalf of the relevant Business Sellers)
shall pay to the Purchaser (if it procures that the Business
Assets are acquired by another person, on behalf of that person)
an amount equal to such proportion of the Taxes as relates to the
portion of the Joint Period ending on Completion or any acts,
events or occurrences occurring (or deemed to occur) in the Joint
Period on or before Completion;
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(v) to the extent that any Taxes are paid by any Business Seller in
respect of or relating to any of the Business Assets or the use of
any of the Business Assets in any Joint Period (including, for the
avoidance of doubt, the business tax imposed by Section 1447 et
seq. of the French Tax Code and the property tax imposed by
Section 1380 et seq or 1393 et seq. of the French Tax Code which
will be assessed for the year 2001), the Purchaser (if it procures
that the Business Assets are acquired by another person, on behalf
of that person) shall pay to the Sellers (on behalf of the
relevant Business Seller) an amount equal to such proportion of
the Taxes as relates to the portion of the Joint Period commencing
after Completion or any acts, events or occurrences occurring (or
deemed to occur) in the Joint Period after Completion;
(vi) to the extent that any amount in respect of Taxation is received
by the Purchaser (or, if it procures that the Business Assets are
acquired by another person, that person) (other than, for the
avoidance of doubt, any amounts receivable in respect of indirect
Taxation taken into account in the Completion Stocks Statement) in
respect of the Business Assets or the use of any of the Business
Assets in any Joint Period, the Purchaser (if it procures that the
Business Assets are acquired by another person, on behalf of that
person) shall pay to the Sellers (on behalf of the relevant
Business Seller) an amount equal to such proportion of the amount
received as relates to the portion of the Joint Period ending on
Completion or any acts, events or occurrences occurring (or deemed
to occur) in the Joint Period on or before Completion; and
(vii) to the extent that any amount in respect of Taxation is received
by any Business Seller in respect of or relating to any of the
Business Assets or the use of any of the Business Assets in any
Joint Period, the Sellers (on behalf of the relevant Business
Seller) shall pay to the Purchaser (if it procures that the
Business Assets are acquired by another person, on behalf of that
person) an amount equal to such portion of the amount received as
relates to the portion of the Joint Period commencing after
Completion or any acts, events or occurrences occurring (or deemed
to occur) in the Joint Period after Completion.
(E) The Purchaser (on behalf of the relevant Designated Purchaser) hereby
agrees with the Sellers (on behalf of the relevant member of the Sellers'
Group) that it will duly pay and discharge (or procure to be paid and
discharged) and indemnify each member of the Sellers' Group against all
Taxation in respect of or in relation to the Business
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Assets (or their use) in respect of any period of account for Taxation
purposes beginning after Completion or, in respect of any Joint Period,
the portion of the Joint Period beginning after Completion PROVIDED THAT
any amounts received by the Sellers (on behalf of the relevant Business
Seller) pursuant to sub-clause D(v) above or taken into account in the
Completion Stocks Statement shall not also be recoverable under this
sub-clause (E).
(F) The Sellers (on behalf of the relevant members of the Sellers' Group)
hereby agree with the Purchaser (on behalf of the relevant Designated
Purchasers) that they will duly pay and discharge (or procure to be paid
and discharged) and indemnify each member of the Purchaser's Group
against all Taxation in respect of or in relation to the Business Assets
(or their use) in respect of any period of account for Taxation purposes
ending on or before Completion or, in respect of any Joint Period, the
portion of the Joint Period ending on Completion PROVIDED THAT any
amounts recovered by the Purchaser (on behalf of the relevant Designated
Purchasers) pursuant to sub-clause D(iv) above or taken into account in
the Completion Stocks Statement shall not also be recoverable under this
sub-clause (F).
(G) The Sellers (for themselves and on behalf of the other relevant members
of the Sellers' Group) hereby agree with the Purchaser (for itself and on
behalf of each Designated Purchaser) that they will (or will procure that
the relevant member of the Sellers' Group will) duly pay and discharge
(or procure to be paid and discharged) and indemnify and keep indemnified
the Purchaser and each Designated Purchaser on an after Tax basis
against, all liabilities, claims, costs and expenses suffered by the
Purchaser or the relevant Designated Purchaser as a result of any
invoices or other claims for payment received, or any deduction from or
withholding of any payment by any customer or supplier of the Business
(or any part thereof) relating to any sales of any products of the
Business (including, without limitation, any rebates, discounts or other
allowances in relation to such sales) marketing programmes or any other
activity of the Business (or any part thereof) at any time prior to
Completion.
(H) The Sellers (on behalf of the relevant members of the Sellers' Group)
shall indemnify the Purchaser (on behalf of the relevant Designated
Purchaser) in respect of the title and/or ownership of the Business
Property in Sweden known as Kristianstad Isgrannatorp 1:11 (detailed in
paragraph 4 of Part C of Schedule 9) not being registered in the name of
the relevant Business Seller in Sweden and the relevant Business Seller
shall use all reasonable endeavours at its own cost prior to Completion
to register the aforementioned Business Property in its name prior to
Completion PROVIDED THAT this indemnity shall
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terminate upon the expiry of five years following the Completion Date.
(I) The Sellers (on behalf of the relevant members of the Sellers' Group)
shall indemnify the Purchaser (on behalf of the relevant Designated
Purchaser) in respect of all liabilities arising in respect of complaints
received in January, 2001 relating to the presence of metal fragments in
products manufactured at the Business Properties in Ashford, United
Kingdom.
14. RECEIVABLES AND APPORTIONMENT
(A) The Purchaser shall not acquire or procure the acquisition of the
Receivables and accordingly the Business Sellers shall be entitled to the
Receivables in accordance with the terms of this Clause.
(B) The Purchaser agrees that the Business Sellers alone shall be responsible
for the collection of any of the Receivables and that:
(i) the Business Sellers shall be entitled to take such steps as they
may think fit to recover any outstanding Receivables PROVIDED
THAT the Sellers shall procure that no Business Seller commences
any proceedings against any customer or supplier of any Business
or any counterparty to any agreement relating to the Business
unless and until it has taken reasonable steps to consult with
the Purchaser regarding the matter;
(ii) the Purchaser shall not take, and shall procure that no other
member of the Purchaser's Group takes, any step to collect the
Receivables, and shall not do anything to hinder their collection
by any Business Seller; and
(iii) if the Purchaser or any other member of the Purchaser's Group
should receive any communication or payment in respect of any
Receivable, the Purchaser shall or shall procure that written
details of any such communication or payment are given to the
Sellers as soon as reasonable practicable following receipt
thereof.
(C) Where anything (including any service) is to be provided by a member of
the Purchaser's Group under any of the Contracts after Completion, but
any payment (whether by way of deposit, prepayment or otherwise) in
respect of the price or cost of it has been received by a member of the
Sellers' Group before Completion, the Sellers shall procure that the
relevant member of the Sellers' Group pays a sum equal to the amount of
that payment (excluding any amount in respect of output VAT for which
that member of the Sellers' Group is required to
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account) to the relevant member of the Purchaser's Group immediately
following Completion, following receipt of which the member of the
Purchaser's Group shall provide such thing or service and shall hold such
sum in trust for that member of the Purchaser's Group until it is paid
over.
(D) Where anything (including any service) is to be provided to a member of
the Purchaser's Group under any of the Contracts after Completion, but
any payment (by way of deposit, prepayment or otherwise) has been made by
a member of the Sellers' Group in respect of the price or cost of it
before Completion, the Purchaser shall procure that that member of the
Purchaser's Group pays a sum equal to the amount of that payment
(excluding any amount in respect of VAT thereon) to the relevant member
of the Sellers' Group as soon as reasonably practicable following the
member of the Purchaser's Group becoming aware of such thing or service
and shall hold such sum in trust for that member of the Sellers' Group
until it is paid over.
(E) The Purchaser shall procure that all moneys or other items belonging to
any member of the Sellers' Group which are received by any member of the
Purchaser's Group on or after Completion in connection with the Business
or any of the Business Assets shall be held in trust by that member of
the Purchaser's Group for that member of the Sellers' Group and that such
moneys or other items are promptly paid over to that member of the
Sellers' Group.
(F) The Sellers shall procure that all moneys or other items belonging to any
member of the Purchaser's Group which are received by any member of the
Sellers' Group on or after Completion in connection with the Business or
any of the Business Assets shall be held in trust by that member of the
Sellers' Group for that member of the Purchaser's Group and that such
moneys or other items are promptly paid over to that member of the
Purchaser's Group.
15. GUARANTEES AND OTHER AGREEMENTS
(A) Subject as provided in sub-clause (B), the Purchaser, for itself and its
successors and assigns, covenants that, at any time and from time to time
on or after Completion, it will execute and deliver all such instruments
of assumption and acknowledgements as the Sellers may reasonably request
in order to effect the release and discharge in full of any assurance,
indemnity or guarantee given by any member of the Sellers' Group to any
person (including, without limitation, the Company) in respect of any
obligation or liability of the Company and the Purchaser's assumption of,
and the substitution of the Purchaser as the primary obligor in respect
of, each such assurance, indemnity or guarantee, in each case on a
non-recourse basis to the members of
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the Sellers' Group. If reasonably requested by the Sellers at any time,
and from time to time, the Purchaser shall procure that a bank guarantee
is granted by such bank as the Sellers shall agree in favour of the
Sellers in the amount of any of the guarantees in the Data Room given by
any member of the Sellers' Group in respect of any obligation or
liability referred to in this sub-clause to any person referred to in
this sub-clause where such guarantee has not been released or discharged
in full.
(B) Save as provided in sub-clause (C), the Purchaser hereby agrees with each
of the Sellers (on behalf of themselves and each other member of the
Sellers' Group) that it will assume and pay and discharge when due, and
indemnify each member of the Sellers' Group on an after Tax basis
against, all assurances, indemnities and guarantees given by any member
of the Sellers' Group to any person in respect of any obligation or
liability of the Company (other than to the extent that they have been
released and discharged in accordance with sub-clause (A)).
(C) Without prejudice to the generality of sub-clause (A) and to the
indemnification provisions of sub-clause (B) (which, save as provided
below, shall apply equally in respect of the guarantees covered hereby)
it is hereby agreed that, in relation to The Netherlands, the phrase
"assurances, indemnities and guarantees" shall include the guarantee
given by Unilever N.V. pursuant to section 403 paragraph 1 sub f Book 2
of the Dutch Civil Code in respect of the Company. Unilever N.V. shall
release that guarantee at Completion and the Purchaser shall give or
procure the giving of such guarantee or guarantees as are required in
order to allow Unilever N.V. to release such guarantee at that time.
(D) Each of the Sellers, for itself and its successors and assigns, covenants
that, at any time and from time to time on or after Completion, it will
execute and deliver all such instruments of assumption and
acknowledgements or take such other action as the Purchaser may
reasonably request in order to effect the release and discharge in full
of any Assurance given by the Company to any person in respect of any
obligation or liability of any member of the Sellers' Group (other than a
liability of a Business Seller in respect of the Business), and shall
procure the assumption of, and the substitution of an appropriate member
of the Sellers' Group as the primary obligor in respect of, each such
Assurance on a non-recourse basis to the Purchaser's Group. Pending such
release and discharge, the Sellers hereby agree with the Purchaser (on
behalf of themselves and the Company) that they will assume and pay and
discharge when due, and indemnify the Company against, all such
Assurances.
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16. VALUE ADDED TAX
Without prejudice to the generality of Clause 5(C), each of the parties
shall comply with the requirements relating to that party set out in
Schedule 12.
17. EMPLOYEES
(A) Subject to Clause 17(K) and to Schedule 11, if the contract of employment
of any Business Employee terminates or is found or alleged not to have
effect after Completion as if originally made with the Purchaser or
another member of the Purchaser's Group as a consequence of the sale and
purchase of the Business Assets and other matters contemplated under this
Agreement other than by virtue of mandatory provisions of applicable
legislation relating to the transfer of undertakings, the Purchaser (on
behalf of the relevant member of the Purchaser's Group) agrees that:
(i) in consultation with the Sellers, it will, within five Business
Days of being so requested (as long as the request is made no
later than 10 Business Days after the Sellers become aware of
such finding or allegation), make to that Business Employee an
offer in writing to employ him under a new contract of employment
subject to, and to take effect upon, the termination referred to
below; and
(ii) the offer to be made will be on such terms and conditions as are
consistent with the Purchaser's undertakings in sub-clauses (F)
and (G).
Upon that offer being made (or at any time after the expiry of the five
(5) Business Days if the offer is not made as requested), the relevant
member of the Sellers' Group shall, where legally possible, terminate
the employment of the Business Employee concerned (save where already
terminated). The Purchaser (on behalf of the relevant Designated
Purchaser) shall indemnify each member of the Sellers' Group on an after
Tax basis against all liabilities arising from the employment of that
Business Employee after Completion until such termination (up to a
maximum period of 6 months) where the services of the employee concerned
are performed for a member of the Purchaser's Group during such period.
The Sellers shall (on behalf of the relevant member of the Sellers'
Group) indemnify each member of the Purchaser's Group against all
liabilities arising from the termination of the employment of that
Business Employee.
(B) Subject to Clause 17(K), if the contract of employment of any person who
is immediately prior to Completion employed by a member of the
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Sellers' Group (other than a Business Employee, any employee who becomes
employed by the Purchaser or another member of the Purchaser's Group as a
result of a Co-Packing Agreement or any employee who consents to become
employed by the Purchaser or another member of the Purchaser's Group in
accordance with Clause 17(P)) is found or alleged to have effect after
Completion as if originally made with the Purchaser or another member of
the Purchaser's Group as a consequence of the sale and purchase of the
Business Assets and other matters contemplated under this Agreement, the
Sellers (on behalf of the relevant member of the Sellers' Group) agree
that:
(i) in consultation with the Purchaser, they will, within five
Business Days of being so requested (as long as the request is
made no later than 10 Business Days after the Purchaser (or such
member of the Purchaser's Group) becomes aware of such finding or
allegation and, in any event, within the period of six months
after Completion), procure that a member of the Sellers' Group
makes to that employee an offer in writing to employ him under a
new contract of employment subject to, and to take effect upon,
the termination referred to below; and
(ii) the offer to be made will be on the same terms and conditions as
were provided to that employee immediately before Completion.
Upon that offer being made (or at any time after the expiry of the five
Business Days if the offer is not made as requested), the relevant
member of the Purchaser's Group shall, where legally possible, terminate
the employment of the employee concerned. The Purchaser (on behalf of
the relevant Designated Purchaser) shall indemnify each member of the
Sellers' Group on an after Tax basis against all liabilities arising
from the employment of that employee after Completion until such
termination (up to a maximum period of 6 months) where the services of
the employee concerned are performed for a member of the Purchaser's
Group during such period. The Sellers (on behalf of the relevant member
of the Sellers' Group) shall indemnify each member of the Purchaser's
Group against all liabilities arising from the employment of that
employee after Completion until such termination (up to a maximum period
of six months) where the services of the employee concerned are not
performed for a member of the Purchaser's Group during such period and,
whether or not the services of the employee concerned are available to a
member of the Purchaser's Group during such period, against all
liabilities arising from the termination of employment of that employee.
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(C) The Purchaser has provided or will provide (as the case may be) the
Sellers with all the information reasonably required to enable them to
comply with any obligations to inform, consult or notify any person about
the matters contemplated by this Agreement in so far as it relates to any
Employee to the extent required by local law and within the relevant time
limits imposed by local law. Where applicable, the Sellers shall use
their reasonable endeavours to request relevant information from the
Purchaser.
(D) The Purchaser (on behalf of the relevant Designated Purchaser) agrees
with the Sellers and each other member of the Sellers' Group that it will
indemnify the Sellers and each other member of the Sellers' Group on an
after Tax basis against any claim relating to the terms and conditions of
employment or benefits offered to or provided to the Business Employees
or Company Employees in connection with their employment after Completion
(including, without limitation, claims relating to the terms and
conditions of such employment or benefits and termination of such
employment or benefits but excluding any matter for which the Purchaser
is liable under paragraph 10 of Part 1 of Schedule 10) and against any
breach by the Purchaser of this Clause or Schedule 11. The Sellers shall
procure that each member of the Sellers' Group and the Company shall
discharge all its obligations in respect of the Employees (including, but
not limited to, wages and salaries, overtime, bonus or commission (earned
but unpaid), accrued holiday pay, income tax, social security
contributions, retirement benefit contributions and insurance premiums)
in respect of the period up to close of business on the Completion Date.
The Sellers agree with the Purchaser for itself and on behalf of the
relevant Designated Purchasers and/or the Company that it will indemnify
the Purchaser, any Designated Purchaser or the Company on an after Tax
basis against any claim arising out of or relating to the relevant member
of the Sellers' Group or the Company's failure to discharge such
obligations.
(E) The provisions of sub-clauses (F) and (G) and Schedule 11:
(i) are to apply to the Employees only for so long as the Employees
continue in the employment of any member of the Purchaser's Group
or any person to whom the whole or any part of the Business or
Purchaser's Group is transferred; and
(ii) are to apply to any Potential Employee who becomes employed by a
member of the Purchaser's Group on or after Completion as if that
Potential Employee were an Employee.
(F) (i) If the employment of any Employee is terminated within three years
of the Completion Date the Purchaser shall procure that
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there shall be applied in respect of such Employee policies and
benefits (whether contractual or otherwise and giving due credit
to the Employees for any additional service or earnings from the
Completion Date onwards) in such a manner as to be no less
favourable than those applicable in respect of the particular
Employee at the date of this Agreement provided that details of
such policies and benefits are set out in the Disclosure Letter or
the Data Room.
(ii) The Purchaser shall procure that, in respect of benefits which are
provided on the death or disability of an Employee or his spouse,
child or dependant within the period of three years following the
Completion Date (other than such benefits which are Benefits
provided under a Sellers' Group Plan), equivalent benefits must be
provided on such events which are payable in circumstances and
under conditions which are not materially less favourable to the
beneficiary concerned as those which would have applied had the
death or disability occurred whilst the beneficiary was a
beneficiary of the arrangement in question under the provisions of
that arrangement in force immediately prior to the Completion Date
provided that details of such policies and benefits are set out in
the Disclosure Letter or the Data Room.
(G) Without prejudice to sub-clause (F), the Purchaser shall procure that for
a period of three years following the Completion Date Employees who are
employed shall be employed on terms and conditions (whether contractual
or otherwise and including, without limitation, any related to length of
service but specifically excluding any Benefits under a Sellers' Group
Plan and excluding any share schemes or share option schemes) which are
no less favourable taken as a whole in respect of each Employee than
those which apply in respect of each Employee at Completion provided that
details of such policies and benefits are set out in the Disclosure
Letter or the Data Room. This undertaking does not constitute a guarantee
that the Employees will continue to be employed following Completion. In
relation to share schemes and share option schemes, the Purchaser shall
procure that for a period of three years from Completion the Employees
who are employed shall be employed on terms and conditions (including the
rules of any applicable scheme and any qualifying conditions) related to
share schemes and share option schemes which are no less favourable in
respect of each Employee than those applicable to other employees of
equivalent seniority of companies in the Purchaser's Group from time to
time, subject always to the rules of the applicable scheme and any
qualifying conditions.
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(H) The Purchaser's agreement to the provisions of sub-clauses (F) and (G) is
given by the Purchaser on the express understanding that, if the
Purchaser is in breach of any such provisions, the Sellers may, at their
absolute discretion, and without limitation, seek to procure compliance
with such provisions by the Purchaser by applying to the court for
damages and/or specific performance.
(I) Without prejudice to the parties' obligations under sub-clauses (A) to
(G), each of the parties shall comply with the requirements relating to
that party set out in Schedule 11.
(J) For the avoidance of doubt, the provisions of this Clause 17 are without
prejudice to:
(i) the operation of any rule of law in relation to, or contractual
term of, the terms and conditions of employment of the Employees;
and
(ii) any provision of Schedule 10.
(K) If any Business Employee or Company Employee requires a work permit or
employment pass or other approval (in this Clause "PERMITS") for his
employment to continue after Completion, the Purchaser undertakes to
procure that any necessary applications are promptly made and to use its
best efforts to secure the necessary Permits and the provisions of Clause
33 shall apply in relation to the continued employment of Employees and
(if they are Business Employees or otherwise as necessary) their transfer
to another employer after Completion.
(L) The Sellers shall procure that the relevant member of the Sellers' Group
shall use its reasonable endeavours to procure that each Seconded
Employee continues to be employed by a member of the Sellers' Group and
shall, for the period of 6 months following Completion, which period, in
the case of ▇. ▇▇▇▇▇▇▇ only, may be extended by up to a further 6 months
with the agreement of the employee concerned and the relevant member of
the Purchaser's Group, be seconded to work in the European Culinary
Brands Business, in the case of ▇.▇. ▇▇▇ ▇▇▇▇ only, for 50% of each
working week. The following additional provisions shall apply with
respect to the Seconded Employees:
(i) Each Seconded Employee shall be paid, and employment benefits
shall be provided to such Seconded Employee, by a member of the
Sellers' Group and the Purchaser (on behalf of the relevant
Designated Purchaser) shall pay to the Sellers (on behalf of the
relevant member of the Sellers' Group) (in advance) at the
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start of each calendar month the direct and indirect cost of
salary and other employment benefits for that Seconded Employee
for such calendar month including relevant taxes, social security
costs and any notional or unfunded costs or accruals in relation
to post-Completion service (for example in relation to Benefits)
on such basis as the Sellers may reasonably determine and agree
with the Purchaser. To the extent such agreement is not reached,
paragraph 9 of Part 1 of Schedule 10 shall apply.
(ii) The relevant member of the Sellers' Group may from time to time
increase the salary benefits of such Seconded Employee PROVIDED
THAT any such increases are in line with increases for similar
employees of the Sellers' Group.
(iii) The Purchaser shall procure that the working environment of each
Seconded Employee and the work carried out by each Seconded
Employee is similar to his working environment and work before
Completion.
(iv) The Purchaser (on behalf of the relevant member of the Purchaser's
Group) shall indemnify the Sellers (on behalf of the relevant
member of the Sellers' Group) against any claim by, or relating
to, a Seconded Employee except to the extent that such claim
arises as a result of acts or omissions of the Sellers.
The provisions of Clause 25(A) shall be deemed to apply to each of ▇.▇.
▇▇▇ ▇▇▇▇ and ▇. ▇▇▇▇▇▇▇ as if each such person were a Senior Sellers'
Group Employee but the Purchaser shall not be precluded from offering
employment to S.R.H. Duin with effect from the end of the period of 6
months after Completion.
(M) Except where Clause 17(Q) applies, the Purchaser shall procure that, upon
and from the termination of any Co-packing Agreement (whether absolutely
or in respect of one or more Products (as defined therein) to which that
Co-packing Agreement relates) under which any of the Co-packers (as
defined therein) is a member of the Purchaser's Group (other than any
member of the Purchaser's Group operating the assets referred to in
paragraph 1 of Attachment 10), the relevant Co-packer (as defined
therein) shall, where such termination has the effect of transferring the
employment of any employee of that Co-packer (or its holding company,
subsidiary or subsidiary of its holding company) to any member of the
Sellers' Group (the "SELLER RECIPIENT"), indemnify the Seller Recipient
against any liability which results from the termination by the Seller
Recipient of the employment of any such
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employee on or immediately after such transfer takes place or the Seller
Recipient becoming aware that such transfer has taken place.
(N) The Sellers shall procure that, upon and from the termination of any
Co-packing Agreement (whether absolutely or in respect of one or more
Products (as defined therein) to which that Co-packing Agreement relates)
under which any of the Co-packers (as defined therein) is a member of the
Sellers' Group, the relevant Co-packer (as defined therein) shall, where
such termination has the effect of transferring the employment of any
employee of that Co-packer (or its holding company, subsidiary or
subsidiary of its holding company) to any member of the Purchaser's Group
(the "PURCHASER RECIPIENT"), indemnify the Purchaser Recipient against
any liability which results from the termination by the Purchaser
Recipient of the employment of any such employee on or immediately after
such transfer takes place or the Purchaser Recipient becoming aware that
such transfer has taken place.
(O) The Sellers shall indemnify the Purchaser for itself and on behalf of the
relevant Designated Purchaser and/or the relevant Company against any
liabilities incurred by any member of the Purchaser's Group arising out
of or relating to any act or omission by any member of the Seller's Group
or any Company prior to the Completion Date in respect of any of its
obligations or duties to or in relation to the employment of any of the
Employees or any former employees of any members of the Sellers' Group or
the Company, prior to Completion, provided that this Clause 17(O) shall
not apply in relation to any liabilities in respect of the provision of
Benefits.
(P) (i) Promptly after the date of this Agreement, the Sellers shall
procure that meetings shall be arranged between representatives of
the Purchaser's Group and the Potential UK Employees, the
Potential Nordic Employees and the Potential German Employees.
Meetings in relation to the Potential UK Employees and the
Potential German Employees shall be on a one to one basis.
Meetings in relation to the Potential Nordic Employees shall be on
a group basis provided that thereafter meetings with any Potential
Nordic Employee who has expressed an interest in becoming employed
by a member of the Purchaser's Group shall be on an individual
basis provided further that individual meetings may not be held
with more Potential Nordic Employees than the total number of
unfilled vacancies for Potential Nordic Employees under paragraph
(iii) below from time to time.
(ii) The Sellers shall procure that such information as in its
possession and control in relation to the Potential Employees as
may be reasonably requested by the Purchaser shall, subject
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to the consent of any such Potential Employee, be made available
to the Purchaser.
(iii) Notwithstanding the provisions of Clause 25(A) (to the extent
applicable), in the period prior to the Completion Date, the
Purchaser is permitted to make offers of employment effective from
the Completion Date to:
(a) up to 15 Potential UK Employees;
(b) any or all of the Potential German Employees;
(c) up to 5 Potential Nordic Employees who work in the category
Sweden - out of home sales;
(d) up to 25 Potential Nordic Employees who work in the
category Sweden - retail sales;
(e) up to 5 Potential Nordic Employees who work in the category
Finland - out of home sales;
(f) up to 5 Potential Nordic Employees who work in the category
Finland - retail sales,
provided that if any such offer is declined a further offer may be
made in respect of the same category of Potential Employee. The
Sellers shall procure that any Potential Employee who accepts an
offer of employment in accordance with this (iii) shall be
released from employment by the Seller's Group with effect from
Completion or such earlier date as may be agreed by the Sellers
and the Purchaser.
(iv) The provisions of Clause 25(A) shall be deemed to apply to any
Potential Employee other than any who is made an offer of
employment made under (iii) above as if any such person were a
Senior Sellers' Group Employee.
(v) If, at any time before the expiry of the period of 3 months after
Completion, any of the 38 UK Employees set out in the Employee
List as "100% Dedicated - ▇▇▇▇▇▇▇" ceases to be employed by the
Sellers' Group (prior to Completion) or the Purchaser's Group (on
or after Completion) (a "CEASING UK EMPLOYEE"), the provisions of
(iii) above shall apply in respect of such number, up to a maximum
of a further 8 employees, of Potential UK Employees who then
remain employed by the Sellers' Group equal to the number of
Ceasing UK Employees.
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(vi) "POTENTIAL UK EMPLOYEES" - see Part 4 of Attachment 6 to this
Agreement;
"POTENTAL NORDIC EMPLOYEES" - any sales employee of the Sellers'
Group in Sweden or Finland;
"POTENTIAL GERMAN EMPLOYEES" - see Part 5 of Attachment 6 to this
Agreement;
"POTENTIAL EMPLOYEE" - means a Potential UK Employee, a Potential
Nordic Employee or a Potential German Employee as the case may be.
(Q) (i) On the termination as described in Clause 17(M) of the Co-packing
Agreement in relation to the wet sauces line in Worksop, the
Purchaser will consult with the Sellers as to the extent to which
suitable alternative employment with either the Purchaser's Group
or the Sellers' Group is available for any Employee who continues,
immediately prior to that termination, to be employed by a member
of the Purchaser's Group and whose employment would otherwise
terminate as a result of such termination of such Co-packing
Agreement (a "RELEVANT EMPLOYEE").
(ii) To the extent that, notwithstanding (i) above, the employment of a
Relevant Employee is terminated by a member of the Purchaser's
Group as a result of such termination of such Co-packing
Agreement, the Sellers agree to indemnify the Purchaser against
any liability which results from that termination of employment.
18. PENSIONS
Each of the parties shall comply with the requirements relating to that
party set out in Schedule 10.
19. INSURANCE
The Purchaser acknowledges and agrees (on behalf of itself and each
member of the Purchaser's Group) that upon Completion all insurance
cover provided to the Company or to any other member of the Sellers'
Group in relation to the European Culinary Brands Business pursuant to
policies maintained by the Sellers' Group (whether such policies are
maintained with third party insurers or with other members of the
Sellers' Group) shall cease and that no further liability shall arise
under such policies but (subject to the terms of any relevant policy)
without prejudice to any accrued claims which the Company or the
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Business Sellers in relation to the Business may have at, or claims which
the policies cover in respect of events or circumstances arising prior
to, Completion and provided that insurance cover shall (subject to the
terms of any relevant policy) continue in respect of matters occurring
prior to Completion in accordance with the terms of the relevant policy
and, if the Purchaser or any Designated Purchaser suffers a loss as a
result of any such matter being a matter occurring prior Completion and
relating to the European Culinary Brands Business, the Sellers shall take
all reasonable steps to confer the benefit of any claim which they are
entitled to make under any such policy in respect of such loss upon the
Purchaser or such Designated Purchaser (as the case may be) other than
where the Purchaser or Designated Purchaser is not assuming the liability
which is the subject matter of the insurance.
20. CONTINUING ARRANGEMENTS BETWEEN SELLERS' GROUP AND THE EUROPEAN CULINARY
BRANDS BUSINESS
(A) (i) The Sellers and the Purchaser shall enter into the Transitional
Services Agreement at Completion.
(ii) If the Purchaser notifies the Sellers no later than two weeks
prior to the Completion Date that it wishes to remove a Service or
Services (as defined in the Transitional Services Agreement)
(whether in one or more jurisdictions) from the scope of the
Transitional Services Agreement, all reference to such Services
(including the Service Price(s) relating to such Service(s)) shall
be removed from the Transitional Services Agreement prior to its
execution.
(B) Save as set out in this Agreement or in any duly executed and binding
Transitional Services Agreement or Co-packing Agreement:
(i) no member of the Sellers' Group shall be obliged to supply any
services to any member of the Purchaser's Group after Completion;
and
(ii) no member of the Purchaser's Group shall be obliged to supply any
services to any member of the Sellers' Group after Completion.
(C) The Sellers and the Purchaser shall, or shall procure that, each of the
Co-packing Agreements are executed at Completion.
(D) The Sellers, on behalf of the relevant Business Sellers shall, with
effect from Completion, grant the Purchaser and, to the extent relevant,
each other member of the Purchaser's Group,
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(i) a perpetual, exclusive, world-wide, royalty free, irrevocable
assignable licence (with rights to sub-license) to use any
know-how relating exclusively to the Business; and
(ii) a perpetual, non-exclusive, world-wide, royalty-free, irrevocable,
assignable licence (with the right to sub-license) to use any
Shared Know-how.
(E) The Sellers, on behalf of the relevant Business Sellers shall, with
effect from Completion, grant the Purchaser and, to the extent relevant,
each other member of the Purchaser's Group a one year, non-exclusive,
royalty-free licence to use the pack photography, design and artwork
currently used on Irish ▇▇▇▇▇▇'▇ products in Ireland and United Kingdom
▇▇▇▇▇▇'▇ products in the United Kingdom (the "Pack Design") solely on
such products in Ireland and the United Kingdom for the purpose of
re-branding those products away from that Pack Design.
(F) To the extent permitted by law, each party shall not (and shall procure
that no member of its Group shall) sell, whether directly or indirectly,
any products under or by reference to a brand in any territory in which a
member of the other party's Group owns or is the exclusive licensee of
Intellectual Property in that brand (a "Restricted Territory"), provided
that the exclusive obligation of each party (and the members of its
Group) in this regard in connection with its customers (including
distributors) under this agreement (but without prejudice to any other
obligations which may exist under any applicable law) is that:
(i) each party shall make a trade announcement at or around the time
of Completion to each such customer at that time which is
reasonably likely to sell or distribute that party's products into
a Restricted Territory that such party is not owner of the
Intellectual Property in that brand in that territory; and
(ii) for a period of two years following Completion, where either party
(the "Notifying Party") notifies the other party that it has
reasonable grounds for believing that a customer of the other
party (other than any customer who was a customer of that other
party at Completion) is selling goods under or by reference to a
brand (or has the intention to do so) in any territory in which a
member of the Notifying Party's Group owns or is the exclusive
licensee of Intellectual Property in that brand, the other party
shall notify such customer that it does not have rights to operate
under that brand in that territory, and that it sold its rights to
the Notifying Party or appointed the Notifying Party as its
exclusive licensee (as applicable).
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(G) The Purchaser (on behalf of the relevant Designated Purchaser) shall
reimburse the Sellers (on behalf of the relevant member of the Sellers'
Group) up to a maximum of E2,000,000 on demand in respect of one-half of
any IT Separation and Services Costs which are incurred by any member of
the Sellers' Group save where the Sellers are creating a system to be
delivered to the Purchaser (in accordance with Schedule 13), in which
event the cost of all licences required by the Purchaser to use that
system shall be borne by the Purchaser entirely.
(H) The Sellers shall provide reasonable information as to how such costs
have been incurred (including, without limitation, all relevant third
party receipts) and shall, at the Purchaser's request, provide the
Purchaser with a reasonable opportunity to review and discuss such costs
to the extent that they relate to work or services carried out by a
member of the Sellers' Group. The Sellers shall issue appropriate
receipts to the Purchaser for any reimbursement payment made pursuant to
this sub-clause (F).
(I) The Sellers (for themselves and on behalf of each other member of the
Sellers' Group) and the Purchaser (for itself and on behalf of each other
member of the Purchaser's Group) each agree to comply with the provisions
of Schedule 13 with respect to IT Systems.
(J) The Sellers (on behalf of the relevant member of the Seller's Group)
shall indemnify the Purchaser (on behalf of the relevant Designated
Purchaser) in respect of the matters disclosed against Warranty 19(A) in
respect of the Nordic countries, save that the Purchaser shall not be
entitled to bring a claim against the Sellers under this sub-clause (F)
at any time after the date falling five years after Completion and the
provisions of paragraph 1(B) of Schedule 4 shall apply with respect to
any claim brought by the Purchaser under this sub-clause.
21. SELLERS' WARRANTIES AND PURCHASER'S REMEDIES
(A) Subject as provided in this Agreement, the Sellers warrant (for
themselves and on behalf of the Business Sellers and the Share Seller) to
the Purchaser (for itself and on trust for the Designated Purchasers) as
at the date of this Agreement in terms of the Warranties set out in
Schedule 3.
(B) The only Warranties given:
(i) in respect of the Business Properties are those contained in
paragraphs 14 and 19 of Schedule 3 and each of the other
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Warranties shall be deemed not to be given in relation to the
Business Properties;
(ii) in respect of the Company Properties are those contained in
paragraphs 14 and 20 of Schedule 3 and each of the other
Warranties shall be deemed not to be given in relation to the
Company Properties;
(iii) in respect of Environmental Matters are those contained in
paragraph 21 of Schedule 3 and each of the other Warranties shall
be deemed not to be given in relation to Environmental Matters;
(iv) in respect of know-how or Intellectual Property matters or
agreements principally or exclusively relating to Intellectual
Property or know-how are those contained in paragraph 22 of
Schedule 3 and each of the other Warranties shall be deemed not
to be given in relation to know-how or Intellectual Property
matters or agreements relating predominantly to Intellectual
Property or know-how;
(v) in respect of competition or trade regulation law are those
contained in paragraph 23 of Schedule 3 and each of the other
Warranties shall be deemed not to be given in relation to
competition, anti-restrictive trade practice or anti-trust
legislation;
(vi) in respect of Tax are those contained in the Tax Warranties and
each of the other Warranties shall be deemed not to be given in
relation to Tax;
(vii) in respect of all pensions matters are those contained in
paragraphs 44 to 51 of Schedule 3 and each of the other
Warranties shall be deemed not to be given in relation to
pensions matters; and
(viii) in respect of the IT Systems or agreements relating exclusively
or principally to the IT Systems, are those contained in
paragraph 53 of Schedule 3 and each of the other Warranties shall
be deemed not to be given in relation to the IT Systems or
agreements relating exclusively or principally to the IT Systems.
(C) In the absence of fraud or wilful concealment, the liability of the
Sellers under or in relation to the Warranties shall be limited as set
out in Schedule 4.
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(D) Notwithstanding the provisions of Clauses 2(H) and (I), if, before
Completion, the Purchaser or any other member of the Purchaser's Group
becomes aware of any breach of the Warranties as at the date of this
Agreement which has a material adverse effect on the European Culinary
Brands Business as a whole the Purchaser may refuse to proceed to
Completion and may, prior to Completion, terminate this Agreement by
notice in writing to the Sellers. If the Purchaser completes the purchase
of the Business Assets and the Shares in any of the circumstances
mentioned in this sub-clause, such Completion shall be without prejudice
to any right to claim damages which it may have in respect of the
relevant circumstances. The Purchaser hereby waives any rights (other
than the right to seek damages) in respect of any breach of the
Warranties (and howsoever arising or deemed to arise) other than any such
rights in respect of fraud.
(E) Any payment made by the Sellers in respect of any claim under the
Warranties shall be treated as a repayment of and adjustment to the Final
Cash Consideration.
(F) The Sellers accept that the Purchaser (for itself and on behalf of the
Designated Purchasers) is entering into this Agreement and acquiring the
Shares and the Business Assets in reliance upon the Warranties.
(G) Subject and without prejudice to Clause 34, the Purchaser acknowledges
and agrees that the Sellers make no representation or warranty as to the
accuracy of the forecasts, estimates, projections, statements of intent
or statements of opinion provided to the Purchaser (howsoever provided)
on or prior to the date of this Agreement or in the Disclosure Letter or
in the Data Room. The Purchaser acknowledges that no representations or
warranties, express or implied, have been or are given other than the
Warranties and any warranties contained in any documents in the Agreed
Form.
(H) Except as set out in sub-clause (D), the only remedy of the Purchaser for
breach of the Warranties shall be damages (subject to Schedule 4) and
Completion shall not in any way constitute a waiver of the Purchaser's
right to damages.
(I) The Sellers undertake that, if any claim is made against any of them by
the Purchaser in connection with the sale of the Shares and the Business
Assets to the Purchaser, they shall not make any claim against any
Employee on whom they may have relied before agreeing to any terms of
this Agreement or the Tax Covenant or authorising any statement in the
Disclosure Letter.
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(J) Each of the Warranties shall be construed as a separate and independent
warranty and, except where expressly provided to the contrary, shall not
be limited or restricted by reference to or inference from the terms of
any other Warranty or any other provision of this Agreement.
(K) In connection with the assignment by the relevant member of the Sellers'
Group of each of the Raguletto Marks pursuant to Clause 3(B) and subject
as provided in this Agreement, the Sellers shall warrant (for themselves
and on behalf of the Business Sellers) to the Purchaser (for itself and
on trust for the Designated Purchaser) as at the relevant Raguletto Sale
Date in terms of the Warranties set out in paragraph 22 of Schedule 3,
and each such warranty (a "Raguletto Warranty") shall be subject to all
relevant parts of this Agreement relating to Warranties given at the date
of this Agreement and the provisions of Schedule 4 shall apply mutatis
mutandis as if the references to the Completion Date in Schedule 4 are
references to the relevant Raguletto Sale Date.
(L) The Sellers shall be entitled to make disclosures against each Raguletto
Warranty at the relevant Raguletto Sale Date (except in relation to the
Warranties set out in paragraphs 22(A) or 22(C) of Schedule 3) which
shall be delivered to the Purchaser in the form of a disclosure letter,
and each such disclosure letter shall be a Disclosure Letter for the
purposes of this Agreement.
22. PURCHASER'S WARRANTIES
(A) The Purchaser warrants to the Sellers as at the date of this Agreement
that:
(i) the Purchaser has the requisite power and authority to enter into
and perform this Agreement and the other documents specified in
this Agreement which are to be executed by the Purchaser at
Completion (the "PURCHASER'S COMPLETION DOCUMENTS");
(ii) this Agreement constitutes and the Purchaser's Completion
Documents will, when executed by the Purchaser, constitute
binding obligations of the Purchaser in accordance with their
respective terms;
(iii) the execution and delivery of, and the performance by the
Purchaser of its obligations under, this Agreement and the
Purchaser's Completion Documents will not:
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(a) result in a breach of any provision of the
certificate of incorporation and bylaws of the
Purchaser or any applicable laws and regulations;
(b) result in a breach of, or constitute a default
under, any instrument to which the Purchaser is a
party or by which the Purchaser is bound and which
is material in the context of the transactions
contemplated by this Agreement;
(c) so far as the Purchaser is aware, result in a breach
of any order, judgment or decree of any court,
governmental agency or regulatory authority to which
the Purchaser is a party or by which the Purchaser
is bound and which is material in the context of the
transactions contemplated by this Agreement; or
(d) save as contemplated by this Agreement, require the
Purchaser to obtain any consent or approval of, or
give any notice to or make any registration with,
any governmental or other authority which has not
been obtained or made at the date of this Agreement
and is in full force and effect where failure to
obtain such consent or approval, give such notice or
make such registration is material in the context of
the transactions contemplated by this Agreement;
(iv) the Purchaser at Completion will have immediately available on an
unconditional basis (subject only to Completion) the necessary
cash resources to pay the Debt Free Price and meet its other
obligations under this Agreement and the Purchaser's Completion
Documents; and
(v) each Designated Purchaser is, and will at and immediately after
Completion be, a member of the Purchaser's Group.
(B) The Purchaser accepts that the Sellers are entering into this Agreement
in reliance upon the warranties set out in sub-clause (A).
23. PURCHASER'S UNDERTAKINGS
(A) The Purchaser agrees and undertakes on behalf of itself and each other
member of the Purchaser's Group that (in the absence of fraud) it has no
rights against and shall not make any claim against any employee,
director, agent, officer or adviser of any member of the
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Sellers' Group on whom it may have relied before agreeing to any term of
this Agreement or any other agreement or document referred to herein or
entering into this Agreement or any other agreement or document referred
to herein.
(B) The Purchaser undertakes on behalf of itself and each member of the
Purchaser's Group (and without prejudice to the confidentiality agreement
referred to in Clause 37(E)) that, subject to Clause 37(B), each member
of the Purchaser's Group will treat as strictly confidential and not
disclose to any person (other than any employee, director, officer or
adviser of the Purchaser, other members of the Purchaser's Group or any
employee, director, officer or adviser of any other member of the
Purchaser's Group on a confidential basis) any Seller Confidential
Information. The Purchaser acknowledges that, save as otherwise provided
in this Agreement, any future use of Seller Confidential Information is
without representation, warranty or liability on the part of any member
of the Sellers' Group.
(C) The Purchaser acknowledges and agrees on behalf of itself and each member
of the Purchaser's Group that, save to the extent that a licence of
Unilever Marks is granted expressly pursuant to this Agreement, nothing
in this Agreement shall operate as an agreement to transfer (nor shall
transfer) any right, title or interest in, and (subject to sub-clauses
(D) and (J)), save as aforesaid, from Completion, the Purchaser shall
procure that no member of the Purchaser's Group shall use, any of the
Unilever Marks.
(D) Save as otherwise expressly provided by a licence of Unilever Marks
granted expressly pursuant to this Agreement, the Purchaser shall procure
that each part of the European Culinary Brands Business shall:
(i) as soon as reasonably practicable after Completion cease all use
of the Unilever Marks set out in Part 1 of Attachment 5 on any
sales literature, stationery, building signage or vehicles; and
(ii) by the last day of the sixth month following Completion, destroy
or delete from existing sales literature and stationery or
buildings signage or vehicles, and by the last day of the twelfth
month following Completion destroy or delete from existing
Stocks, the Unilever Marks set out in Part 2 of Attachment 5 and
by the last day of the sixth month following Completion destroy
or delete from existing stocks the Unilever Marks set out in Part
1 of Attachment 5.
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(E) The Purchaser shall procure that, for a period of 12 months after
Completion, the Company and the Business shall prepare, where reasonably
requested to do so by the Sellers and subject to reimbursement by the
Sellers of all reasonable expenses of the Company or the Business
incurred in connection with the preparation of the same, financial data
in relation to all periods beginning prior to Completion and ending prior
to, on or after Completion required for financial accounts, management
accounts or statutory accounts and any data to the extent strictly
required for compliance with any reporting requirements of any stock
exchange or securities or other regulatory authority or under any
applicable law, rule or regulation which shall each be delivered to the
Sellers as soon as reasonably practicable following the relevant request.
(F) The Purchaser undertakes with the Sellers (for themselves and as trustees
for each other member of the Sellers' Group) to comply with all
notifications and other requirements arising as a result of this
Agreement and the transactions contemplated hereunder under any relevant
competition, anti-restrictive trade practices or anti-trust laws (except
where such requirements are the sole responsibility of the Sellers under
such laws, in which case the Sellers undertake to the Purchaser on the
same terms) and the Purchaser agrees with the Sellers (for themselves and
as trustees for each other member of the Sellers' Group) that it will
indemnify each member of the Sellers' Group on an after Tax basis against
any and all costs, claims, expenses and liabilities whatsoever which the
Seller or any such other member of the Sellers' Group may suffer or incur
as a result of the Purchaser's failure to comply with such laws.
(G) The Purchaser agrees and acknowledges (for itself and as trustee for each
member of the Purchaser's Group) that no part of the European Culinary
Brands Business shall have or retain any right whatsoever (whether
proprietary or by way of Intellectual Property or otherwise) in or in
respect of the Unilever Manuals and Policy Documents or any of them, or
any right to use or continue to use them or any of them after Completion.
All originals and copies of the Unilever Manuals and Policy Documents
shall be delivered to the Sellers or to their order to such location or
locations in the jurisdiction or jurisdictions in which they are held as
they shall reasonably specify, at or immediately following Completion.
(H) If the Sellers or Business Sellers assign to the Purchaser any
Intellectual Property or know-how which is owned by a member of the
Sellers' Group but which is not used exclusively in the European Culinary
Brands Business (other than any Business IPR), the Purchaser undertakes
to reassign such Intellectual Property or know-how to the Sellers or a
member of the Sellers' Group nominated by the Sellers in
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consideration for the Sellers or such member of the Sellers' Group
simultaneously granting to the Purchaser (or another member of the
Purchaser's Group) a non-exclusive, perpetual, irrevocable, assignable
and royalty-free licence (with the right to sub-license) to use such
Intellectual Property to the extent that such Intellectual Property was
used in the European Culinary Brands Business at Completion or in the 12
months prior to Completion, and the Sellers agree with the Purchaser (for
itself and as trustee for each Designated Purchaser) that the Sellers
shall indemnify the Purchaser or the relevant Designated Purchaser on an
after Tax basis in respect of any costs and expenses incurred by the
Purchaser or the relevant Designated Purchaser in connection therewith.
The Purchaser shall also procure that the Company transfers its right to
the Sellers or a member of the Sellers' Group nominated by the Sellers,
for nominal consideration, any Intellectual Property (other than any
Business IPR) or know-how owned by the Company which has in the 12 months
prior to Completion been used exclusively in any retained business
carried on by the Sellers or any member of the Sellers' Group and the
Sellers agree with the Purchaser (for itself and as trustee for each
Designated Purchaser) that the Sellers shall indemnify the Purchaser or
the relevant Designated Purchaser on an after Tax basis in respect of any
costs and expenses incurred by the Purchaser or the relevant Designated
Purchaser in connection therewith.
(I) If the Sellers or Business Sellers assign to the Purchaser any trade ▇▇▇▇
which: (i) at Completion is owned by a member of the Sellers' Group; (ii)
is not used at Completion exclusively in the European Culinary Brands
Business; (iii) does not relate to a territory within the EEA; and (iv)
in connection with which the Sellers' Group operates an active business
function in the relevant territory at Completion, the Purchaser
undertakes to grant to any relevant member of the Sellers' Group a
royalty-free licence (with the right to sub-license) of such trade ▇▇▇▇
solely in connection with the re-branding by that member of the Sellers'
Group of the relevant goods away from that trade ▇▇▇▇. The term of such
licence shall be the lesser of (i) two years; and (ii) the period until
the completion of that re-branding process, and such licence shall be
exclusive for the first year of that term and non-exclusive for the
remainder of that term.
(J) If the Sellers or Business Sellers assign to the Purchaser any trade ▇▇▇▇
which includes or incorporates (i) any of the Unilever Marks and/or (ii)
any endorser brand or sub-brand (other than any Business IPR) relating to
an active business function of the Sellers' Group in the relevant
territory at Completion, the Purchaser undertakes to reassign such
Intellectual Property in the territory to the Sellers
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or a member of the Sellers' Group nominated by the Sellers in
consideration for the Sellers or such member of the Sellers' Group
simultaneously granting to the Purchaser (or another member of the
Purchaser's Group) an exclusive, royalty-free, licence (with the right to
sub-license) for one year to use such trade ▇▇▇▇ solely in connection
with the re-branding of the relevant goods away from that Unilever ▇▇▇▇
or endorser or sub-brand (as applicable). The Sellers shall indemnify the
Purchaser or the relevant Designated Purchaser on an after Tax basis in
respect of any costs and expenses incurred by the Purchaser or the
relevant Designated Purchaser in connection therewith The Sellers shall
procure that any registrations relating to each such trade ▇▇▇▇ are
cancelled as soon as reasonably practicable after the end of the term of
the licence of that trade ▇▇▇▇ granted pursuant to this clause. For the
avoidance of doubt (i) this Clause shall be without prejudice to the
Purchaser's rights in that territory to the brand or brands included
within that trade ▇▇▇▇ other than such Unilever Marks and/or such
endorser brand or sub-brand (each a "Transferred Brand"); and (ii) the
Sellers acknowledge that they do not by operation of this Clause receive
or obtain any rights to any Intellectual Property in any Transferred
Brand.
(K) The Purchaser shall, with effect from Completion, procure the grant to
the Sellers and each member of the Sellers' Group of a perpetual,
non-exclusive, royalty-free, irrevocable, assignable licence (with the
right to sub-license) to use any Intellectual Property other than any
Business IPR) owned by the Company at Completion to the extent that such
Intellectual Property has in the 12 months prior to Completion been used
(but not exclusively used) by the Sellers or any other member of the
Sellers' Group.
(L) The Purchaser shall, with effect from Completion, procure the grant to
the Sellers and each member of the Sellers' Group of a perpetual,
non-exclusive, royalty-free, irrevocable, assignable licence (with the
right to sub-license) to use any know-how owned by the Company at
Completion which has in the 12 months prior to Completion been used (but
not exclusively used) by the Sellers or any other member of the Sellers'
Group.
(M) The Purchaser, with effect from Completion, grants the Seller and, to the
extent relevant, each other member of the Sellers' Group a non-exclusive,
royalty-free, assignable licence (with the right to sub-license) to use
the plant variety right listed in Part 1 of Attachment 4 of this
Agreement (the "Plant Variety Right") for the duration of the Plant
Variety Right.
(N) Without prejudice to Clauses 20(D) and 27(C), the Purchaser undertakes
to, and undertakes to procure that all members of the
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Purchaser's Group, return to the Sellers within a period of 12 months
after Completion all copies of all books and records (including all
written material and all forms of computer or machine readable material)
in their possession or under their control which contain Shared Know-how
other than any know-how relating to products which are at Completion
and/or will after Completion be manufactured and/or packaged in factories
owned by the European Culinary Brands Business exclusively for and/or on
behalf of members of the Sellers' Group.
(O) At the Purchaser's request, the Sellers shall, during the period between
the date of this Agreement and Completion, apply to register any
unregistered trade marks which are included within the Business IPR and
the Purchaser shall reimburse the Sellers in respect of all costs,
including reasonable internal management costs, incurred by the Sellers
or a member of the Sellers' Group in respect of filing any applications
to register such unregistered trade marks. At Completion the Sellers
shall assign any such applications or registrations (if registered) to
the Purchaser or a company nominated by the Purchaser.
24. RESTRICTIONS ON SELLERS
(A) Each Seller undertakes that it shall not, and shall procure that each
other member of the Sellers' Group shall not for as long as it remains
such a member, do any of the following things:
(i) for a period of five years after Completion, recommence the
manufacture or distribution of any product in any market in which
any part of the European Culinary Brands Business is carried on at
Completion under a ▇▇▇▇ which any member of the Sellers' Group has
ceased to use on that product in that market in the 12 months
prior to Completion where such cessation of use took place so as
to eliminate product overlap between the Sellers' Group (other
than Bestfoods and its subsidiaries) and Bestfoods and its
subsidiaries PROVIDED THAT (and for the avoidance of doubt subject
to clause 24(B) nothing in this paragraph (i) shall prevent any
member of the Sellers' Group from transferring any endorser brand
to any product in such market as at Completion or from re-entering
any market from which it would otherwise be excluded by reason of
this paragraph;
(ii) within two years from the Completion Date, directly or indirectly
solicit or endeavour to entice away from the employment of any
member of the Purchaser's Group, offer employment to or employ or
offer to conclude any contract for
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services with any Senior Employee without the prior written
consent of the Purchaser, other than:
(a) any Senior Employee whose employment with the
relevant member of the Purchaser's Group has then
ceased or who has received notice terminating such
employment; and
(b) any Senior Employee who responds to any public
recruitment advertisement placed by or on behalf of
any member of the Sellers' Group; or
(iii) intentionally assist any person to do any of the foregoing things.
(B) Subject always to the terms of the Co-existence Agreement, each Seller
undertakes that it shall not, and shall procure that no other member of
the Sellers' Group shall, for the duration of the Restricted Period,
within any territory use any trade ▇▇▇▇ (registered or unregistered)
comprised in the Business IPR; Raguletto Marks (but in respect of each
Raguletto ▇▇▇▇, only after the relevant Raguletto Sale Date); and any
trade ▇▇▇▇ which is or is likely to be confusingly similar to any such
trade ▇▇▇▇, (including applying to register an internet domain name
containing such a trade ▇▇▇▇ in such territory) or challenge any trade
▇▇▇▇ registration for, or oppose any application for registration made by
any member of the Purchaser's Group in relation to such a trade ▇▇▇▇ (or
procure, authorise, enable or assist any third party to do so).
(C) Each Seller undertakes that it shall, and shall procure that each member
of the Sellers' Group shall, for the period until each Raguletto ▇▇▇▇ is
assigned to the Purchaser or the relevant Designated Purchaser (as the
case may be) pursuant to Clause 3(B):
(i) use that Raguletto ▇▇▇▇ only on or in connection with the products
on or in connection with which that Raguletto ▇▇▇▇ is used at
Completion; and
(ii) maintain standards of quality for all goods on which such
Raguletto ▇▇▇▇ is used, which standards shall be no less than the
standards of quality that have been maintained by the relevant
member of the Sellers' Group in connection with its use of that
Raguletto ▇▇▇▇ on those goods prior to Completion.
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25. RESTRICTIONS ON PURCHASER
(A) The Purchaser undertakes to each of the Sellers that it shall not, and
shall procure that each member of the Purchaser's Group shall not (for so
long as it remains such a member), within two years of the Completion
Date solicit or endeavour to entice away from the employment of any
member of the Sellers' Group any Senior Sellers' Group Employee other
than:
(i) any Senior Sellers' Group Employee whose employment with the
relevant member of the Sellers' Group has then ceased or who has
given (or received) notice terminating such employment;
(ii) any Senior Sellers' Group Employee who responds to any public
recruitment advertisement placed by or on behalf of any member of
the Purchaser's Group; and
(iii) in accordance with Clause 17(P).
and shall not intentionally assist any person to do any of the foregoing
things.
(B) The Purchaser undertakes to each of the Sellers that it shall not, and
shall procure that each other member of the Purchaser's Group shall not
(for so long as it remains such a member) within six months after the
Completion Date develop, manufacture, market or distribute any Restricted
Products, provided that such restriction on the Purchaser's Group shall
not apply to the extent that the Purchaser can adduce reasonable evidence
that the technology or know-how incorporated in the relevant Restricted
Product was:
(i) at Completion already in the public domain or comes into the
public domain through no fault of any member of the Purchaser's
Group or its agents;
(ii) independently discovered or invented prior to Completion by a
member of the Purchaser's Group; or
(iii) lawfully received by any member of the Purchaser's Group from some
source other than directly or indirectly from a member of the
Seller's Group, and so far as the Purchaser is aware such source
did not owe a duty of confidentiality to a member of the Sellers'
Group in respect thereof that would prohibit disclosure to that
member of the Purchaser's Group.
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26. PROVISION RELATING TO RESTRICTIONS
Each undertaking contained in Clauses 24 and 25 shall be construed as a
separate undertaking and if one or more of the undertakings is held to
be against the public interest or unlawful or in any way an unreasonable
restraint of trade, the remaining undertakings shall continue to bind
the Sellers and/or the Purchaser as the case may be.
27. BOOKS AND RECORDS
(A) The Business Sellers shall on Completion transfer ownership of and
deliver to the Purchaser originals of all the Books and Records relating
exclusively to the Business or the Business Assets excluding:
(i) those Books and Records which any member of the Sellers' Group is
required by law to retain or which any Business Seller is
permitted to retain in accordance with Clause 16 and Schedule 12;
(ii) all Books and Records of the Business Sellers which contain
legally privileged information which is confidential to the
Sellers which shall be retained by the Sellers; and
(iii) any Books and Records (other than Books and Records relating
exclusively to the Company) relating to Taxation.
(B) For a period of eight years from Completion (or such longer period as may
be required by local law) the Purchaser shall maintain and make available
the Books and Records (other than Books and Records relating exclusively
to the European Culinary Brands Business) which are delivered to the
Purchaser under this Agreement for inspection and copying by
representatives of any Business Seller and its professional advisers
during Working Hours on reasonable advance notice and such undertaking as
to confidentiality as the Purchaser may reasonably require being given,
save that such period shall be 15 years (or such longer period as may be
required by local law) in relation to Books and Records which contain any
information relating to the occupational health of any Employees.
(C) Subject to any provision contained in Schedule 12, for a period of eight
years from Completion (or such longer period as may be required by local
law), the Sellers shall maintain and make available to the Purchaser any
Books and Records (i) relating (but not exclusively relating) to the
European Culinary Brands Business, (ii) any Books and Records of the type
described in Clause 27(A)(i) or (ii) and (iii) any materials containing
Shared Know-how licensed pursuant to
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Clause 20(D), if practicable, the relevant parts thereof) which contain
information which is required by the Purchaser for the purpose of the
Business or any Tax or other return in connection with the Business for
inspection and copying by representatives of the Purchaser during Working
Hours on reasonable advance notice and such undertaking as to
confidentiality as either Seller may reasonably require being given.
(D) (i) The Sellers shall procure that each Business Seller shall, where
reasonably requested to do so by the Purchaser and subject to the
reimbursement by the Purchaser of the Business Seller's reasonable
out-of-pocket expenses, assist the Purchaser with the preparation
of data reasonably required for compliance with any reporting
requirements of any stock exchange or securities or other
regulatory authority under any applicable law, rule or regulation
and shall provide such reasonable assistance as soon as reasonably
practicable and, in any event, within 30 Business Days of the
relevant request.
(ii) The Purchaser shall and shall procure that any relevant member of
the Purchaser's Group shall, where reasonably requested by the
Sellers or any Business Seller and subject to the reimbursement by
the Sellers of the reasonable out-of-pocket expenses of the
Purchaser or relevant member of the Purchaser's Group, assist the
Sellers or, where relevant, Business Sellers with the preparation
of any data reasonably required for the preparation of any
information request from any Tax Authority regarding the Taxation
affairs of any of the Sellers and/or any of the Business Sellers
in respect of the European Culinary Brands Business.
(iii) The Sellers shall and shall procure that any relevant member of
the Sellers' Group shall, where reasonably requested by the
Purchaser or any Designated Purchaser and subject to the
reimbursement by the Purchaser of the reasonable out-of-pocket
expenses of the Sellers or the relevant member of the Sellers'
Group, assist the Purchaser or, where relevant, the Designated
Purchasers with the preparation of any data reasonably required
for the preparation of any information request from any Tax
Authority regarding the Taxation affairs of the Purchaser and/or
any of the Designated Purchasers in respect of the European
Culinary Brands Business.
28. PAYMENTS
(A) Except to the extent otherwise set out in this Agreement, any payment to
be made by any party (whether paid on its own behalf or on behalf
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of the Share Seller or, as the case may be, a Business Seller or, as the
case may be, a Designated Purchaser) under this Agreement shall be made
in full without any set-off, restriction or condition (whether for or on
account of any counterclaim or otherwise) and without, and free and clear
of, any deduction or withholding whatsoever (save only as required by
law). If any deductions or withholdings are required by law to be made
from any sums payable under this Agreement (except for payments of
interest), the party who is obliged (whether on its own behalf or on
behalf of the Share Seller or, as the case may be, a Business Seller or,
as the case may be, a Designated Purchaser) to make the payment shall
also be obliged to pay to the party to whom payment is to be made
(whether to be received on its own behalf or on behalf of the Share
Seller or, as the case may be, a Business Seller or, as the case may be,
a Designated Purchaser) such sum as will, after such deduction or
withholding has been made, leave the party to whom payment is to be made
and, where received or to be received by that party on behalf of the
Share Seller or, as the case may be, a Business Seller or, as the case
may be, a Designated Purchaser, leave the Share Seller or, as the case
may be, Business Seller or, as the case may be, Designated Purchaser with
the same amount as it would have been entitled to receive in the absence
of any such requirement to make such deduction or withholding.
(B) If any Tax Authority brings into charge to Tax (or into any computation
of income, profit or gain for the purposes of any charge to Tax) any sum
payable by any party (whether on its own behalf or on behalf of the Share
Seller or, as the case may be, a Business Seller or, as the case may be,
a Designated Purchaser) under this Agreement (excluding the consideration
payable pursuant to Clause 5 and any adjustment to such consideration
pursuant to Clauses 4 and 7 and paragraphs 3 of Part 1 or Part 2 of
Schedule 10 and except for payments of interest) then such party shall
pay (whether on its own behalf or on behalf of the Share Seller or, as
the case may be, a Business Seller or, as the case may be, a Designated
Purchaser) such additional amount to the party to whom the payment is
made (whether on its own behalf or on behalf of the Share Seller or, as
the case may be, a Business Seller or, as the case may be, a Designated
Purchaser) as shall be required to ensure that such party to whom payment
is made and the Share Seller or, as the case may be, Business Seller or,
as the case may be, Designated Purchaser is placed in the same after Tax
position (taking into account any Tax credit or other Tax benefit
received or receivable by such party or the Share Seller or, as the case
may be, Business Seller or, as the case may be, Designated Purchaser in
relation to the sum payable or the event giving rise to the sum payable)
as if the matter giving rise to the payment had not arisen.
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(C) If any amount payable under this Agreement is payable to a payee who is
not an original party to this Agreement or, where received by the payee
on behalf of the Share Seller or, as the case may be, a Business Seller
or, as the case may be, a Designated Purchaser, the Share Seller is not
the original Share Seller or, as the case may be, the Business Seller is
not the original Business Seller or, as the case may be, the Designated
Purchaser is not the original Designated Purchaser, the payer shall not
be required by this Clause 28 (or any other provision of this Agreement
including, without prejudice to the generality of the foregoing, Clause
32) to pay any greater amount than it would have been required to pay had
the sum been payable to the original party to this Agreement or, as the
case may be, the original Share Seller or, as the case may be, the
original Business Seller or, as the case may be, the original Designated
Purchaser.
(D) This sub-clause applies if one party (the "PAYER") makes a payment under
Clause 28(A) above (a "TAX PAYMENT") in favour of a person entitled to a
payment under this Agreement (the "RECIPIENT"). In this case, each of the
following applies:
(i) The Recipient agrees to notify the Payer if the Recipient obtains
a refund of Tax or obtains and uses a credit against Tax on its
overall net income (a "TAX CREDIT") which the Recipient is able to
identify as attributable to that Tax Payment or the deduction or
withholding to which it relates.
(ii) The Recipient agrees to reimburse to the Payer the amount
determined by the Recipient to be the proportion of the refund of
Tax or Tax Credit that, if it is paid back to the Payer, will
leave the Recipient (after that reimbursement) in no better or
worse position in respect of its Tax liabilities than it would
have been in if no Tax Payment had been required. There will only
be an obligation under this paragraph to the extent the Recipient
can make the reimbursement without there being, in the opinion of
the Recipient, any adverse consequences to the Recipient (other
than the reimbursement itself).
(iii) The Recipient is under no obligation by virtue of this sub-clause
to disclose any information regarding its Tax affairs and
computations. This sub-clause does not affect the right of the
Recipient to arrange its Tax affairs as it thinks fit.
29. EFFECT OF COMPLETION
Save as otherwise provided herein, any provision of this Agreement or of
any other document referred to herein which is capable of being
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performed after but which has not been performed at or before Completion
and all Warranties contained in or entered into pursuant to this
Agreement shall (subject to Schedule 4) remain in full force and effect
notwithstanding Completion.
30. JOINT AND SEVERAL LIABILITY AND CAPACITY OF THE SELLERS AND THE PURCHASER
(A) The obligations of the Sellers under this Agreement are joint and
several.
(B) If any liability of one of the Sellers is, or becomes, illegal, invalid
or unenforceable in any respect, that shall not affect or impair the
liabilities of the other of the Sellers under this Agreement.
(C) Save as expressly provided in this Agreement, any obligation of the
Sellers under this Agreement to take any action shall be satisfied by any
member of the Sellers' Group taking such action. Any right of the Sellers
under this Agreement may be exercised by either of them.
(D) The undertakings given by the Purchaser to, and agreements made by the
Purchaser with, the Sellers in this Agreement are given and made to and
with the Sellers for themselves and as trustees for the Share Seller or
the relevant Business Seller.
(E) The undertakings given by the Sellers to, and agreements made by the
Sellers with, the Purchaser in this Agreement are given and made to and
with the Purchaser for itself and as trustee for the relevant Designated
Purchaser.
31. REMEDIES, WAIVERS AND INDEMNIFICATION
(A) No delay or omission on the part of any party to this Agreement in
exercising any right, power or remedy provided by law or under this
Agreement or any other documents referred to in it shall impair such
right, power or remedy or operate as a waiver thereof or preclude its
exercise at any subsequent time.
(B) The single or partial exercise of any right, power or remedy provided
under this Agreement or any document referred to in it shall not preclude
any other or further exercise thereof or the exercise of any other right,
power or remedy.
(C) The rights and remedies of each party under or pursuant to this Agreement
are cumulative, may be exercised as often as such party
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considers appropriate and are in addition to its rights and remedies
under general law.
(D) Upon any person (the "INDEMNIFIED PERSON") becoming aware of any
assessment, claim, action or demand of a third party (a "THIRD PARTY
CLAIM") against it which gives rise to any claim for indemnification
under this Agreement (other than the Tax Covenant), the Indemnified
Person shall:
(i) as soon as practicable notify the person from whom indemnification
is sought (the "INDEMNIFYING PARTY") by written notice as soon as
it appears to the Indemnified Person that any Third Party Claim
received by or coming to the notice of the Indemnified Person may
result in a claim for indemnification;
(ii) subject to the Indemnifying Party indemnifying the Indemnified
Person against any liability, cost, damage or expense which may be
incurred thereby, take such action and give such information and
access to personnel, premises, chattels, documents and records to
the Indemnifying Party and their professional advisers as the
Indemnifying Party may reasonably request and the Indemnifying
Party shall be entitled to require any relevant company (being a
member of the Purchaser's Group where the Indemnified Person is a
member of the Purchasers' Group or a member of the Sellers' Group
where the Indemnified Person is a member of the Sellers' Group) to
take such action as is, in the reasonable opinion of the
Indemnified Person and subject to the Indemnifying Party agreeing
to be bound by an obligation of confidentiality, give such
reasonable information and assistance in order to avoid, dispute,
resist, mitigate, settle, compromise, defend or appeal any claim
in respect thereof or adjudication with respect thereto;
(iii) Subject to the Indemnifying Party indemnifying the Indemnified
Person against any liability, cost, damage or expense which may be
incurred thereby, at the request of the Indemnifying Party, allow
the Indemnifying Party to take the sole conduct of such actions as
the Indemnifying Party may reasonably deem appropriate in
connection with any such assessment or claim in the name of the
Indemnified Person or any such relevant company referred to above
and in that connection the Indemnified Person shall give or cause
to be given to the Indemnifying Party all such assistance as it
may reasonably require in avoiding, disputing, resisting,
settling, compromising, defending or appealing any such claim and
shall instruct such legal or other professional advisors as the
Indemnifying Party may nominate to act on behalf of the
Indemnified Person or any relevant
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company, as appropriate, but to act in accordance with the
Indemnifying Party's instructions PROVIDED THAT the Indemnified
Person shall not be required to commence any legal proceedings
where either:
(a) the Indemnified Person has validly assigned all of
its rights in relation to the relevant claim to the
Indemnifying Party in a manner which entitles the
Indemnifying Party to the same benefits in respect
of such rights as the Indemnified Person had; or
(b) where sub-paragraph (C)(iii)(a) does not apply, the
Indemnifying Party has not notified the relevant
party against whom such proceedings are brought
that such proceedings are being brought at the
instruction of the Indemnifying Party;
(iv) be entitled to participate in the defence of any Third Party
Claim and to employ separate counsel to represent it at its own
expense PROVIDED THAT the Indemnifying Party shall control the
defence of the Third Party Claim;
(v) make no admission of liability, agreement, settlement or
compromise with any third party in relation to any such claim or
adjudication without the prior written consent of the
Indemnifying Party (such consent not to be unreasonably withheld
or delayed); and
(vi) take all reasonable action to mitigate any loss suffered by it in
respect of which a claim could be made for indemnification.
(E) The Indemnifying Party shall be entitled at any stage and in its absolute
discretion to settle any such Third Party Claim after giving reasonable
advance written notice to the Indemnified Person.
(F) Notwithstanding the foregoing, the Indemnifying Party shall not be
entitled to assume the defence of any Third Party Claim (and shall be
liable for the reasonable costs and expenses (including legal expenses)
incurred by the Indemnified Person in defending such Third Party Claim)
if the Third Party Claim seeks any relief other than damages (including
any orders, injunctions or other equitable relief) against the
Indemnified Person which the Indemnified Person reasonably determines
cannot be separated from any related claim for damages. If such claim for
other relief can be separated from the claim for damages, the
Indemnifying Party shall be entitled to assume the defence of the claim
for damages.
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(G) If any Indemnified Person has a claim for indemnification against any
Indemnifying Party under this Agreement (other than the Tax Covenant)
which does not involve a Third Party Claim being brought or alleged
against such Indemnified Person, the Indemnified Person may give notice
of such claim to the Indemnifying Party. The failure by any Indemnified
Person so to notify the Indemnifying Party shall not relieve the
Indemnifying Party from any liability which it may have to such
Indemnified Person. If the Indemnifying Party does not notify the
Indemnified Person within 30 Business Days following its receipt of such
notice that the Indemnifying Party disputes its liability to the
Indemnified Person under this Agreement (other than the Tax Covenant)
such claim specified by the Indemnified Person in such notice shall be
conclusively deemed a liability of the Indemnifying Party under this
Agreement (other than the Tax Covenant) and the Indemnifying Party shall
pay the amount of such liability to the Indemnified Person on demand or,
in the case of any notice in which the amount of the claim (or any
portion thereof) is estimated, on such later date when the amount of such
claim (or such portion thereof) becomes finally determined. If the
Indemnifying Party has disputed its liability with respect to such claim
within the time period specified in this sub-clause, the Indemnifying
Party and the Indemnified Person shall proceed in good faith to negotiate
a resolution of such dispute.
32. NO ASSIGNMENT
(A) The rights of the Purchaser or any Designated Purchaser under this
Agreement (including the Warranties) and the Purchaser's Completion
Documents may be assigned or transferred to another member or members of
the Purchaser's Group PROVIDED THAT the Purchaser shall procure that no
such member or members of the Purchaser's Group shall cease to be a
member of the Purchaser's Group unless such rights have been assigned
back to the Purchaser or another member of the Purchaser's Group.
(B) Subject to sub-clause (A), the rights and obligations of the parties
under this Agreement shall not be assignable.
33. FURTHER ASSURANCE
(A) In addition to the obligations set out in Clause 9(E), without prejudice
to any restriction or limitation on the extent of any party's obligations
under this Agreement and except in relation to Business IPR, each of the
parties shall from time to time, so far as each is reasonably able, do or
procure the doing of all such acts and/or execute or procure the
execution of all such documents in a form reasonably satisfactory to the
party concerned as they may
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reasonably consider necessary to transfer the Business Assets and/or the
Shares to the Purchaser or otherwise to give any party the full benefit
of this Agreement.
(B) The Sellers undertake that after Completion and at the request of the
Purchaser they will execute or procure the execution of all such
documents as may reasonably be necessary to give effect to this Agreement
with regard to the matters relating to the Business IPR (including by
processing the execution of any document referred to in Clause 33(B)(iii)
provided however that the Purchaser undertakes with the Sellers that it
will be responsible for preparing all such documents and PROVIDED THAT
the responsibility for the costs and expenses incurred by the parties in
connection therewith shall be shared between the parties as follows:
(i) subject to sub-clause (iii), the Purchaser shall be responsible
for all external costs reasonably and properly incurred by the
Sellers;
(ii) subject to sub-clause (iii), the Purchaser shall be responsible
for all other costs and expenses in respect of such vesting
including (but not limited to) the costs of effecting and
recording the Intellectual Property Assignments at the relevant
patent and trade ▇▇▇▇ offices; and
(iii) the Sellers shall be responsible for all costs incurred by the
Sellers and all external costs reasonably and properly incurred by
any member of the Purchaser's Group in connection with the
preparation and execution of any documents required by the
relevant patent or trade ▇▇▇▇ offices as a result of the legal
owner of the relevant Intellectual Property at Completion being a
different person to the beneficial owner of that Intellectual
Property.
(C) The Sellers undertake that, within 40 days of Completion, they will
procure the delivery to the Purchaser (on behalf of the relevant
Designated Purchaser) of a clean tax certificate in relation to the
Belgian Business Assets in accordance with article 442 bis of the Belgian
Income Tax Code.
34. ENTIRE AGREEMENT
(A) This Agreement, the Disclosure Letter, the Tax Covenant and any other
documents entered into pursuant to this Agreement (the "TRANSACTION
DOCUMENTS") constitute the whole and only agreement between the parties
relating to the sale and purchase of the Business Assets and the Shares
and, except to the extent expressly repeated in any of the
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Transaction Documents, any prior drafts, agreements, undertakings,
representations, warranties and arrangements of any nature whatsoever,
whether or not in writing, relating thereto are superseded and
extinguished.
(B) The Purchaser acknowledges and agrees (for itself and on behalf of each
other member of the Purchaser's Group) with the Sellers (on behalf of
themselves and each other member of the Sellers' Group) that:
(i) it does not rely on and has not been induced to enter into any of
the Transaction Documents on the basis of any Assurance (express
or implied) made or given by or on behalf of any member of the
Sellers' Group or any of their respective directors, officers,
employees or advisers other than those expressly set out in the
Transaction Documents or, to the extent that it has been, it has
(in the absence of fraud) no rights or remedies in relation
thereto and shall make no claim in relation thereto or against
such parties;
(ii) no member of the Sellers' Group, or any of their respective
directors, officers, employees or advisers, has given or made any
Assurance other than those expressly set out in the Transaction
Documents or, to the extent that they have, the Purchaser hereby
(for itself and on behalf of each other member of the Purchaser's
Group) unconditionally and irrevocably waives (in the absence of
fraud) any claim which it might otherwise have had in relation
thereto; and
(iii) any warranty or other rights which may be implied by law in any
jurisdiction in relation to the sale of the Business Assets or
the Shares in such jurisdiction shall be excluded or, if
incapable of exclusion, irrevocably waived.
(C) This Agreement may only be varied by a document signed by each of the
parties and expressed to be a variation to this Agreement. For this
purpose, a variation to this Agreement shall include any addition,
deletion, supplement or replacement, howsoever effected.
(D) To the extent that any provision of any agreement or other document
entered into for the purposes of transferring Business Assets or Shares
located in a particular jurisdiction or country is inconsistent with any
provision of this Agreement, the provision of this Agreement shall
prevail.
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35. NOTICES
(A) Any notice or other communication given or made under or in connection
with the matters contemplated by this Agreement shall be in writing.
(B) Any such notice or other communication shall be addressed as provided in
sub-clause (C) and, if so addressed, shall be deemed to have been duly
given or made as follows:
(i) if sent by personal delivery, upon delivery at the address of the
relevant party;
(ii) if sent by facsimile, at the time of transmission;
PROVIDED THAT if, in accordance with the above provisions, any such
notice or other communication would otherwise be deemed to be given or
made outside Working Hours, such notice or other communication shall be
deemed to be given or made at the start of Working Hours on the next
Business Day.
(C) The relevant addressee, address and facsimile number of each party for
the purposes of this Agreement, subject to sub-clause (D), are:
NAME OF PARTY ADDRESS FACSIMILE NUMBER
------------- ------- ----------------
Unilever N.V. Weena 455, ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
3013 AL
Rotterdam,
The Netherlands
For the attention of: Joint Secretary
Unilever PLC Unilever House, ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
For the attention of: Joint Secretary
▇▇▇▇▇▇▇▇ Soup Company ▇▇▇▇▇▇▇▇ Place, +1 856 342 3936
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇
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NAME OF PARTY ADDRESS FACSIMILE NUMBER
------------- ------- ----------------
USA
Attention: Corporate
Secretary
With a copy to:
▇▇▇▇▇▇▇▇ Coordination ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇ ▇▇▇ ▇▇▇▇
Center S.A. ▇-▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: President,
▇▇▇▇▇▇▇▇ Europe
Where a notice is to be given to the Sellers under this Agreement it
shall be sufficient for it to be given to either of the Sellers. Where a
notice is to be given by the Sellers under this Agreement it shall be
sufficient for it to be given by either of the Sellers.
(D) A party may notify the other parties to this Agreement of a change to its
name, relevant addressee, address or facsimile number for the purposes of
sub-clause (C) PROVIDED THAT such notification shall only be effective
on:
(i) the date specified in the notification as the date on which the
change is to take place; or
(ii) if no date is specified or the date specified is less than five
Business Days after the date on which notice is given, the date
falling five Business Days after notice of any such change has
been given.
(E) For the avoidance of doubt, the parties agree that the provisions of this
Clause shall not apply in relation to the service of any writ, summons,
order, judgment or other document relating to or in connection with any
Proceedings.
36. ANNOUNCEMENTS
(A) Subject to sub-clause (B), no announcement concerning the sale or
purchase of the Business Assets and/or the Shares or any connected matter
(other than the Press Announcements and any other announcements
consistent therewith), shall be made by any party without the prior
written approval of the others, such approval not to be unreasonably
withheld or delayed.
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(B) Any party may make an announcement concerning the sale or purchase of the
Business Assets and/or the Shares or any ancillary matter if required by:
(i) the law of any relevant jurisdiction;
(ii) any securities exchange or regulatory or governmental body to
which any party is subject or submits, wherever situated
(including, without limitation, London Stock Exchange plc and the
Amsterdam Stock Exchange), whether or not the requirement has the
force of law,
in which case the party concerned shall take all such steps as may be
reasonable and practicable in the circumstances to consult with the
other party in relation to the contents of such announcement before
making such announcement and PROVIDED THAT any such announcement shall
be made only after notice to the other party.
(C) The restrictions contained in this Clause shall continue to apply after
the termination of this Agreement without limit in time.
37. CONFIDENTIALITY
(A) Subject to sub-clauses (B), (C) and (D) and Clause 36 and without
prejudice to Clause 23(B):
(i) each party shall treat as strictly confidential all information
received or obtained as a result of entering into or performing
this Agreement which relates to:
(a) the provisions or the subject matter of this
Agreement or any document referred to herein; or
(b) the negotiations relating to this Agreement or any
document referred to herein or any document or
information disclosed pursuant to Clause 2(C);
(ii) the Purchaser shall treat, and shall procure that each other
member of the Purchaser's Group treats as strictly confidential
all information received or obtained in relation to any retained
business of the Sellers' Group; and
(iii) the Sellers shall treat, and shall procure that each other member
of the Sellers' Group treats as strictly confidential all
information which it has retained in relation to the European
Culinary Brands Business after Completion or has
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obtained in relation to the Purchaser's Group as a result of the
negotiation and entering into of this Agreement.
(B) Any party may disclose information which would otherwise be confidential
if and to the extent:
(i) that the information is in the public domain other than as a
result of the breach or default of that party but only after it
comes into the public domain;
(ii) required by the law of any relevant jurisdiction or for the
purpose of any judicial proceedings;
(iii) required by any securities exchange or regulatory or governmental
body to which any party is subject or submits, wherever situated
(including, without limitation, the European Commission, London
Stock Exchange plc, the Amsterdam Stock Exchange or any Tax
Authority), whether or not the requirement for disclosure of such
information has the force of law;
(iv) that the information is disclosed on a strictly confidential basis
to the professional advisers, auditors and bankers of such party
PROVIDED THAT such party shall be liable for any failure by its
professional advisers, auditors and bankers to keep such
information strictly confidential;
(v) that the other parties have given prior written approval to the
disclosure, such approval not to be unreasonably withheld or
delayed;
(vi) it does so to a member of the Sellers' Group (in the case of the
Sellers) or to a member of the Purchaser's Group (in the case of
the Purchaser) which accepts restrictions in the terms of this
Clause; or
(vii) required to enable that party to enforce its rights under this
Agreement,
PROVIDED THAT any such information disclosed pursuant to paragraph (i)
or (ii) shall be disclosed (where reasonably practicable) only after
notice to the other party.
(C) Where they reasonably consider it necessary in the context of the
transactions contemplated by this Agreement, the Sellers may disclose
information to the Trustee which would otherwise be confidential.
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(D) The restrictions contained in this Clause shall continue to apply after
the termination of this Agreement for any reason whatsoever without limit
in time.
(E) The confidentiality agreement set out in the letter dated 10th November,
2000 from ▇▇▇▇▇▇▇ ▇▇▇▇▇ International (on behalf of the Sellers) to the
Purchaser (and countersigned on behalf of the Purchaser on 10th November,
2000) is hereby terminated with effect from the date of this Agreement
without prejudice to rights and liabilities of the parties which have
accrued thereunder prior to such date.
38. COSTS AND EXPENSES
(A) Save as otherwise stated in any other provision of this Agreement, each
party shall pay its own costs and expenses in relation to the
negotiations leading up to the sale of the Business Assets and the Shares
and to the preparation, execution and carrying into effect of this
Agreement and all other documents referred to in it.
(B) Without prejudice to sub-clause (A) and except in relation to VAT (to
which Clauses 5(D) and 16 and Schedule 12 shall apply), all stamp,
transfer, registration, sales (including local sales Taxes) and other
similar Taxes, duties and charges and all notarial fees payable in
connection with the sale or purchase of the Business Assets and the
Shares under this Agreement shall be paid by the Purchaser. Where there
is a choice of methods of execution, the Sellers shall consent to the use
of such methods of execution as the Purchaser may reasonably request so
as to minimise stamp, transfer and registration Taxes, duties and charges
and notarial fees payable in connection with Completion.
39. COUNTERPARTS
(A) This Agreement may be executed in any number of counterparts, and by the
parties on separate counterparts, but shall not be effective until each
party has executed at least one counterpart.
(B) Each counterpart shall constitute an original of this Agreement, but all
the counterparts shall together constitute but one and the same
instrument.
40. INVALIDITY
If at any time any provision of this Agreement is or becomes illegal,
invalid or unenforceable in any respect under the law of any
jurisdiction, that shall not affect or impair:
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(A) the legality, validity or enforceability in that jurisdiction of any
other provision of this Agreement; or
(B) the legality, validity or enforceability under the law of any other
jurisdiction of that or any other provision of this Agreement.
41. THIRD PARTY RIGHTS
(A) The parties to this Agreement do not intend that any term of this
Agreement should be enforceable, by virtue of the Contracts (Rights of
Third Parties) ▇▇▇ ▇▇▇▇, by any person who is not a party to this
Agreement.
(B) Notwithstanding sub-clause (A), the undertakings given by the Purchaser
in, and the agreement of the Purchaser to, Clauses 17(F) and 17(G),
paragraphs 4 of Part 1 and Part 2 of Schedule 10 and Schedule 11 are
given to and made with the Sellers as trustees for each of the Employees.
42. GROUP COMPANY OBLIGATIONS
(A) The Purchaser shall procure that any obligation which is expressed under
this Agreement to be an obligation of any member of the Purchaser's Group
be performed.
(B) The Purchaser hereby guarantees each liability of each member of the
Purchaser's Group under this Agreement (including, without limitation,
any liability to pay money) which the Purchaser agrees under the terms of
this Agreement to discharge on behalf of that member of the Purchaser's
Group.
(C) The Sellers shall procure that any obligation which is expressed under
this Agreement to be an obligation of any member of the Sellers' Group be
performed.
(D) The Sellers hereby guarantee each liability of each member of the
Sellers' Group under this Agreement (including, without limitation, any
liability to pay money) which the Sellers agree under the terms of this
Agreement to discharge on behalf of that member of the Sellers' Group.
43. GOVERNING LAW
This Agreement is governed by, and shall be construed in accordance
with, English law.
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44. JURISDICTION
Each of the parties to this Agreement irrevocably agrees that the courts
of England and Wales are to have non-exclusive jurisdiction to settle
any disputes (including claims for set-off and counterclaims) which may
arise out of or in connection with the creation, validity, effect,
interpretation or performance of, or the legal relationships created by
this Agreement and that accordingly any Proceedings shall be brought in
such courts.
45. AGENTS FOR SERVICE OF PROCESS
(A) Each of Unilever N.V. and the Purchaser hereby appoints the agent set
against its name below to be its agent for the receipt of service of
process in England and agrees that any Service Document may be
effectively served on it in connection with Proceedings in England and
Wales by service on its agent:
NAME OF PARTY AGENT
Unilever N.V. Unilever PLC
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: Joint Secretary
▇▇▇▇▇▇▇▇ Soup Company ▇▇▇▇▇▇▇▇ Grocery Products Limited,
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇'▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
The agent for the receipt of service of process of a party is referred
to in this Clause as that party's "PROCESS AGENT".
(B) Any Service Document shall be deemed to have been duly served on a party
if marked for the attention of that party's Process Agent at the address
above or such other address within England or Wales as may be notified to
the party wishing to serve the document and:
(i) left at the specified address; or
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(ii) sent to the specified address by first class post or air mail.
In the case of (i), the Service Document shall be deemed to have been
duly served when it is left. In the case of (ii), the Service Document
shall be deemed to have been served two clear Business Days after the
date of posting.
(C) If a Process Agent at any time ceases for any reason to act as such, the
party for whom that Process Agent acted shall appoint a replacement
Process Agent having an address for service in England or Wales and shall
notify the other parties of the name and address of the replacement
Process Agent. Failing such appointment and notification, any other party
shall be entitled by notice to the relevant party to appoint a
replacement Process Agent to act on the relevant party's behalf. The
provisions of this Clause applying to service on a Process Agent apply
equally to service on a replacement Process Agent.
(D) A copy of any Service Document served on a Process Agent shall be sent by
post to the appointor of the Process Agent. Failure or delay in so doing
shall not prejudice the effectiveness of service of the Service Document.
46. LANGUAGE
(A) Each notice, demand, request, statement, instrument, certificate, or
other communication given, delivered or made by any party to any other
party under or in connection with this Agreement shall be:
(i) in English; or
(ii) if not in English, accompanied by an English translation made by
a translator, and certified by such translator to be accurate.
(B) The receiving party shall be entitled to assume the accuracy of and rely
upon any English translation of any document provided pursuant to
sub-clause (A)(ii).
IN WITNESS whereof the parties have entered into this Agreement the day and year
first before written.
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SCHEDULE 1
(INTERPRETATION)
1. In this Agreement and the Schedules to it, unless otherwise
specified:
"ACCOUNTS" means:
(a) the statutory audited balance
sheet of the Company drawn up
as at the Accounts Date; and
(b) the statutory audited profit and
loss account of the Company in
respect of the financial year
ended on the Accounts Date,
together with any notes or statements
included in or annexed to them;
"ACCOUNTS DATE" means 31st December, 1999;
"AGREED FORM" means, in relation to any document,
such document in the form initialled
for the purposes of identification
only by or on behalf of the Purchaser
and the Sellers;
"AGREED RATE" means 0.5 per cent. above the
percentage rate per annum determined
by the Banking Federation of the
European Union for the offering of
deposits in Euro for six months;
"ASHFORD NOVATION means a novation agreement in the
AGREEMENT" Agreed Form between Van den ▇▇▇▇▇
Foods Limited, the Designated
Purchaser with respect to the Business
Properties located at Ashford, United
Kingdom and Quest International
(Fragrances, Flavours, Food
Ingredients) UK Limited;
"ASSUMED LIABILITIES" has the meaning given in Clause 13(B);
"ASSURANCE" means any warranty, representation,
statement, assurance, covenant,
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agreement, undertaking, indemnity,
guarantee or other assurance or
commitment of any nature whatsoever;
"BENEFITS" has the meaning given in Schedule 10;
"BESTFOODS BUSINESSES" means those parts of the European
Culinary Brands Business carried on at
the date of this Agreement by
Bestfoods France S.A. and Generale
Condimentaire S.A.S. in France and by
▇▇▇▇▇ Bestfoods Portugal Produtos
Alimentares, S.A. in Portugal;
"BOOKS AND RECORDS" means all books and records of the
Business Sellers containing any
Information relating to the Business
or on which any Information relating
to the Business is recorded including,
without limitation, all documents and
other material (including all forms of
computer or machine readable material)
but excluding all such books and
records containing Shared Know-how;
"BUSINESS" means those parts of the European
Culinary Brands Business as carried on
at the date of this Agreement by the
Business Sellers;
"BUSINESS ASSETS" has the meaning given in Clause 3(A);
"BUSINESS CASH FLOAT" means the cash held as ▇▇▇▇▇ cash by
the Business Sellers for the purposes
of the Business at Completion;
"BUSINESS DAY" means a day (other than a Saturday or
a Sunday) on which banks are open for
business in London and the Netherlands;
"BUSINESS DOMAIN NAME" means any internet domain name owned
by any member of the Sellers' Group
which contains any of the brands
included in the Business IPR and/or
relates exclusively to the Business,
but excluding the Excluded Domain
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Names;
"BUSINESS EMPLOYEES" means the employees of the Business
Sellers or other members of the
Sellers' Group who are employed
primarily in relation to the Business
at Completion or any of them but
excluding any employees listed in Part
2 of Attachment 6 as "EXCLUDED
EMPLOYEES";
"BUSINESS GOODWILL" means all the goodwill of the Business
Sellers in relation to the Business
together with the exclusive right for
the Purchaser to represent itself as
carrying on the Business in succession
to the Business Sellers;
"BUSINESS IPR" means the patents and patent
applications and registered trade
marks and trade ▇▇▇▇ applications and
registered designs set out in Part 1
of Attachment 4, together with:
(i) all other Intellectual Property
owned by any member of the
Sellers' Group which relates
exclusively to the Business; and
(ii) the world-wide rights
(registered and unregistered,
including applications for
registration) owned by any
member of the Sellers' Group in
the World-Wide Marks,
but excluding the Excluded IPR and the
Raguletto Marks;
"BUSINESS IT SYSTEMS" means IT Systems owned by any member
of the Sellers' Group which relate
exclusively to the Business but
excluding the Excluded Assets;
"BUSINESS PLANT AND means all the plant and related work
MACHINERY" in progress and motor vehicles as
referred to in Topic Area 290,
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Topics 15 and 35 of the Unilever Accounting
Policy Manual owned by the Business Sellers
and used or to be used exclusively in the
Business other than any Business IT Systems;
"BUSINESS PROPERTIES" means the Immovable Property specified
in Part C of Schedule 9;
"BUSINESS SELLERS" means the companies listed in Part A
of Schedule 6, each of which carries
on part of the Business or holds
Business Assets;
"BUSINESS STOCKS" means all raw materials, packing
materials and consumables,
stocks-in-process or finished stocks
and goods for resale (wherever located
and as classified and further detailed
in Topic Area 550, Topics 10 to 45 of
the Unilever Accounting Policy Manual)
beneficially owned by or on behalf of
the Business Sellers (including items
which, although subject to reservation
of title by the relevant sellers, are
under the control of the Business
Sellers) and which have in any case
been:
(i) physically allocated or
separated for use exclusively in
any part of the Business; or
(ii) otherwise clearly identified
(whether physically or by
written reference agreed by the
Sellers and the Purchaser) as
forming part or a fixed
proportion of one or more sets,
stores or consignments of such
raw materials, consumables,
stocks-in-process, finished
stocks or goods or such fixed
proportion of the same, being a
proportion of the fungible
contents of any tank or storage
or dispensing vessel, as is in
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any case for the exclusive use
of any part of the Business,
in each case:
(A) for the purposes of the
definition of "Completion
Stocks Amount" and for the
purposes of Clause 13(B)(iii)
only, at midnight
(applicable local time) on
the Completion Date; and
(B) for all other purposes, at
Completion;
"Company" means Royco Voedingmiddelenfabrieken
B.V., a company incorporated in the
Netherlands whose corporate seat is in
Utrecht and whose registered office is
at ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇,
the Netherlands, basic details of
which are set out in Schedule 7;
"Co-existence Agreement" means the co-existence agreement in
the Agreed Form relating to the use of
RAGU by the Seller's Group and the use
of Raguletto by the Purchaser's Group;
"Company Employees" means any employees of the Company at
Completion or any of them;
"Company Properties" means the Immovable Properties
specified in Part D of Schedule 7;
"Completion" means completion of the sale and
purchase of the Business Assets and
the Shares under this Agreement;
"Completion Date" means the date agreed by the Sellers
and the Purchaser which shall be a
date no earlier than the fifth and no
later than the thirtieth Business Day
after the first date on which all of
the conditions in Clause 2(A)(i) to
(v) shall have been satisfied or, in
the case of (v), waived by the
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Purchaser;
"Completion Stocks Means the aggregate value expressed in
Amount" Euros of the Stocks to be calculated
in accordance with Part A of Schedule
5 as at midnight (applicable local
time) on the Completion Date and to be
shown in the Completion Stocks
Statement;
"Completion Stocks means the completion stocks statement
Statement" relating to the European Culinary
Brands Business prepared in accordance
with Clause 7 and Part A of Schedule 5
and in the format set out in
Attachment 7;
"Contracts" means all the contracts, arrangements,
engagements, licences, guarantees and other
commitments relating either exclusively to
the Business or relating in part to the
Business (but then only to the extent that
the same do so relate) to which any of the
Business Sellers is (itself or through an
agent) a party or the benefit of which is
held in trust for or has been assigned to any
of the Business Sellers as at Completion and
which, in any case, are current or
unperformed as at Completion or in respect of
which any of the Business Sellers has any
liability or obligation as at Completion,
including, for the avoidance of doubt, the
Licences In and the Licences Out and any
co-existence agreements relating to any of
the trade marks comprised in the Business IPR
and including the ▇▇▇▇▇▇▇ Licence
(notwithstanding that the ▇▇▇▇▇▇▇ Licence
does not relate exclusively to the Business)
but excluding in all cases the Excluded
Contracts;
"Co-packing Agreements" means the co-packing agreements in the
Agreed Form, and "Co-packing
Agreement" shall be construed
accordingly;
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"Data Room" means those documents referred to in
the list in the Agreed Form in
Attachment 3;
"Debt Free Price" has the meaning given in Clause 5(A)
(but subject to Clause 4(C)(iv));
"Designated Purchasers" means the companies in the Purchaser's
Group to be nominated by the Purchaser
to purchase the Business Assets and
the Shares, and "Designated Purchaser"
means any one of them;
"Disclosed Sellers' has the meaning given in Schedule 10;
Group Plans"
"Disclosure Letter" means the letter of the same date as
this Agreement written by the Sellers
to the Purchaser for the purposes of
paragraph 10 of Schedule 4;
"Draft Completion has the meaning given in Part A of
Stocks Statement" Schedule 5;
"EEA" means the European Economic Area;
"Employees" means the Business Employees and the
Company Employees;
"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 man-made structures above
or below ground), water and land and
any living organisms or systems
supported by those media;
"Environmental Laws" means all applicable statutes and
subordinate legislation and other
international, national, federal,
state and local laws, regulations,
directives, orders, common law, codes
of practice, guidance notes and the
like having the force of law, judicial
decisions or regulatory orders or
regulatory agreements to the extent
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that they relate to Environmental
Matters;
"ENVIRONMENTAL MATTERS" means:
(i) pollution or contamination;
(ii) the disposal, release, spillage,
deposit, escape, discharge,
leak, emission, leaching or
migration of Hazardous Materials
or Waste;
(iii) exposure of any person to
Hazardous Materials or Waste;
(iv) the creation of any noise,
vibration, radiation, common law
or statutory nuisance, or other
adverse impact on the
Environment; and
(v) any other matters relating to
the protection of the
Environment arising out of the
manufacturing, processing,
treatment, storage, keeping,
handling, use, possession,
supply, receipt, sale,
purchase, import, export,
transportation or presence of
Hazardous Materials or Waste;
"ENVIRONMENTAL PERMIT" means any licence, approval,
authorisation, permission, waiver,
order or exemption issued or granted
under Environmental Laws;
"EUROPEAN CULINARY means, subject to sub-paragraphs (1)
BRANDS BUSINESS" and (2) of this definition:
(i) in Belgium:
(a) the retail and foodservice
businesses carried on
under the AIKI, ROYCO and
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OXO marks, excluding the
foodservice business of
sourcing and selling
mashed potato powder
carried on under the ▇▇▇▇▇
▇▇▇▇; and
(b) the retail and foodservice
businesses comprising the
supply of bouillon in
Belgium under the LIEBOX
and LIEBIG marks;
(ii) in France:
(a) the retail and foodservice
businesses carried on
under the ▇▇▇▇▇ ▇▇▇▇; and
(b) the retail and foodservice
mayonnaise and salad
dressings and related
industrial products
businesses carried on
under the ▇▇▇▇▇▇▇ ▇▇▇▇,
including the
manufacturing of
mayonnaise and salad
dressings;
(iii) in Germany:
(a) the retail and foodservice
instant soup businesses
carried on under the
HEISSE TASSE and RAGULETTO
marks; and
(b) the retail and foodservice
wet pasta sauce business
carried on under the
RAGULETTO ▇▇▇▇;
(iv) in the Republic of Ireland, the
retail and foodservice
businesses carried on under the
OXO and MCDONNELLS marks,
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including the manufacturing of
products under the MCDONNELLS
▇▇▇▇;
(v) in the Netherlands:
(a) the retail business
comprising the sale of wet
sauces under the AARDAPPEL
ANDERS and RIJKE SAUZEN
marks; and
(b) the retail and foodservice
business comprising the
sale of dry side dishes
under the SUPERNOODLES
▇▇▇▇;
(vi) in Portugal:
(a) the retail and foodservice
businesses carried on
under the ▇▇▇▇▇ ▇▇▇▇;
(b) the retail and foodservice
jams businesses carried on
under the CASA DE ▇▇▇▇▇▇
▇▇▇▇; and
(c) the retail mayonnaise and
cold sauces business
carried on under the
▇▇▇▇▇▇▇▇'▇ ▇▇▇▇;
(vii) in Denmark, Finland and Sweden,
the retail and foodservice
businesses carried on under the
BLA BAND, BONG (as used in relation to
bouillon products only) and TOUCH OF
TASTE marks, including, in
Sweden only, the manufacturing
of products under those marks;
(viii) in Finland only, the
foodservice business comprising
the sale of ISOMITTA branded
products;
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(ix) in the United Kingdom, the
retail and foodservice
businesses carried on under the
BATCHELORS, CUP-A-SOUP, FARROWS,
OXO, MCDONNELLS and ▇▇▇▇▇ ▇▇▇▇▇,
including the manufacturing of
products under those marks;
(x) any other businesses carried on
in and from any of the Business
Properties and the Company
Properties; and
(xi) the business of the Company,
where, in each of paragraphs (i) to (ix)
above:
(1) a "retail business" comprises
the distribution and sale to
customers of products under the
marks concerned and through
retail outlets and private label
contracts, other than products
intended primarily for
consumption out-of-home; and
(2) a "foodservice business"
comprises the distribution and
sale to customers of products
under the marks concerned and
intended primarily for
out-of-home consumption,
and, where indicated, the manufacture
of those products for that purpose, in
either case in and from the country
specified;
"EXCHANGE RATE" means, in relation to any currency to
be converted into Euros for the
purposes of Schedule 5, the spot rate
of exchange (closing mid-point) for
that currency into Euros on the
business day in London falling two
Business Days prior to the date upon
which any payment is to be made in
relation to the relevant business
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under Clause 7, as published in the
London edition of The Financial Times
first published thereafter or, where
no such rate of exchange is published
in respect of that date, at the rate
quoted by Citibank N.A. as at the
close of business in London on that
date;
"EXCLUDED ASSETS" has the meaning given in Clause 3(A);
"EXCLUDED CONTRACTS" means:
(i) all contracts with Business
Employees (save that any loans
from members of the Sellers'
Group to Employees shall be
Contracts);
(ii) all leases in respect of
Business Properties;
(iii) all contracts pursuant to which
products manufactured in, for or
on behalf of the Business are
distributed and/or stored;
(iv) all contracts pursuant to which
advertising of the products
manufactured in, for or on
behalf of the Business is
planned, arranged and/or carried
out;
(v) all contracts pursuant to which
any services in relation to
computer hardware, software,
networks and/or other
information technology (whether
embedded or otherwise) are
supplied to the Business;
(vi) all contracts pursuant to which
any member of the Sellers' Group
supplies goods or services
(including, without limitation,
centralised purchasing of raw
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materials and packaging) to any
Business Seller to the extent
that such contracts relate to
the Business;
(vii) all contracts in relation to
Excluded Assets other than
contracts in relation to each
Raguletto ▇▇▇▇ after the
relevant Raguletto Sale Date;
(viii) the Sourcing Agreement
dated 10th April, 1998 between
Van den ▇▇▇▇▇ Nederland B.V. and
Thai President Foods Public
Company Limited in relation to
noodle products (as amended,
modified or extended prior to
Completion); and
(ix) the Distribution Agreement dated
20th December, 1994 between Van
den ▇▇▇▇▇ Foods AB and ANS Borg
Distribusjon, Oslo;
"EXCLUDED DOMAIN NAME" means any internet domain name owned
by any member of the Sellers' Group
which:
(i) contains any of the World-Wide
Marks and a country top-level
domain relating to a territory
in which a member of the
Sellers' Group operates an
active business function
relating to that brand at
Completion (but not for the
avoidance of doubt a generic top
level domain name or any country
top-level domain name in a
territory within the EEA); or
(ii) contains the CUP-A-SOUP or
CUP.A.SOUP brand and a country
top-level domain relating to any
territory other than the UK,
Ireland and Portugal, or a
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generic top-level domain; or
(iii) contains the RAGULETTO brand and
a country top-level domain
relating to any territory
outside the EEA, or a generic
top-level domain;
"EXCLUDED IPR" means the Intellectual Property listed
in Part 4 of Attachment 4 and
Attachment 5;
"EXPERT" means:
(i) subject to (ii) below, a partner
of at least 10 years' qualified
experience at an independent
firm of chartered accountants of
international standing agreed by
the parties or, in default of
agreement within 10 Business
Days of one of the parties
seeking the appointment of an
Expert under the terms of this
Agreement, selected by the
President for the time being of
the Institute of Chartered
Accountants in England and
Wales; and
(ii) in the case of any matter
relating to Taxation, a leading
tax counsel in the jurisdiction
to which the Taxation matter
relates of at least 10 years'
qualified experience agreed
between the parties or, in
default of agreement within 10
Business Days of one of the
parties seeking the appointment
of an Expert under the terms of
this Agreement, selected by the
President of the Law Society of
England and Wales;
"FINAL CASH has the meaning given in Clause 5(B);
CONSIDERATION"
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"FINANCIAL INFORMATION" means the financial information in
respect of the European Culinary
Brands Business comprising statements
of net proceeds of sales, gross
profits and profits before overheads
of those parts of the European
Culinary Brands Business carried on
in:
(i) the United Kingdom and the
Republic of Ireland;
(ii) Denmark, Finland and Sweden; and
(iii) Belgium, France, Germany, the
Netherlands and Portugal,
in each case for each of the calendar
years ended 31st December, 2000, 31st
December, 1999 and 31st December,
1998, as set out in Parts 1, 2 and 3
respectively of Attachment 1, together
with the notes set out in Part 4 of
Attachment 1;
"HAZARDOUS MATERIAL" means hazardous or toxic substances,
pollutants or contaminants, as defined
by, or controlled or regulated under,
applicable laws;
"IMMOVABLE PROPERTY" means freehold and leasehold land and
buildings or other immovable property
anywhere in the world;
"INCLUDING" means including but not limited to;
"INDEMNIFIED PERSON" has the meaning given in Clause 31(C);
"INDEMNIFYING PARTY" has the meaning given in Clause 31(C);
"INFORMATION" means all information and know-how
(whether or not confidential and in
whatever form held) which is
proprietary to the Business Sellers
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including, without limitation, all
formulae, recipes, trade secrets,
designs, inventions, specifications,
bills of materials, projects and
developments on ingredients, recipes,
packaging and processes, drawings,
data, process descriptions, manuals
and instructions, production records,
product files and technical
information, and all customer lists
and files, sales information, price
lists, trade terms, business plans,
market research information, market
test results, concept tests results,
advertising film and other advertising
and promotional materials and
forecasts and all technical or other
expertise but excluding in each case
the Unilever Manuals and Policy
Documents;
"INFORMATION MEMORANDUM" means the Information Memorandum dated
9th November, 2000 prepared by ▇▇▇▇▇▇▇
Sachs International relating to the
European Culinary Brands Business;
"INTELLECTUAL PROPERTY" means patents, trade marks and service
marks, brands, sub-brands, rights in
designs, trade or business names,
copyrights (including rights in
computer software), database rights
and topography rights (whether or not
any of these is registered and
including applications for
registration of any such thing) and
all rights or forms of protection of a
similar nature or having equivalent or
similar effect to any of these which
may subsist anywhere in the world;
"INTELLECTUAL PROPERTY means the assignments in respect of
ASSIGNMENTS" the registered Business IPR (and any
applications to register any Business
IPR) in the Agreed Form;
"INTELLECTUAL PROPERTY means licences in the Agreed Form to
LICENCES" be granted by members of the
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"PROPERTY LICENCES" Purchaser's Group to members of the
Sellers' Group in respect of certain
of the Licensed Back Rights and
licences in the Agreed Form to be
granted by members of the Sellers'
Group to members of the Purchaser's
Group in respect of certain of the
Licensed Rights;
"IT SEPARATION AND means any costs reasonably incurred
SERVICES COSTS" prior to or after Completion by any
member of the Sellers' Group or by the
Company:
(i) in connection with the
separation of information
technology systems or computer
hardware or software used in the
European Culinary Brands
Business from those not used in
the European Culinary Brands
Business including, but not
limited to:
(a) the stand alone
information technology
solution to be created by
the Sellers in the
Netherlands for the
Company Properties
including, inter alia, the
separation of the MFG-PRO
manufacturing and SAP
business solutions
currently used by the
European Culinary Brands
Business in the
Netherlands; and
(b) the stand alone
information technology
solution to be created by
the Sellers in France for
the Business Properties in
France to be sold by
Generale Condimentaire
S.A.S. including
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separation of the BPCS
system currently used by
the Business at this site;
and
(c) the stand alone
organisation (including IT
Systems) to be based in
the Business Properties in
Sweden
and, in each case, the hardware
necessary to support (a), (b)
and (c) above; or
(ii) to enable any member of the
Sellers' Group to extend or
obtain licences required to
provide information technology
services to any member of the
Purchaser's Group or to enable
any member of the Sellers' Group
to supply other services after
Completion, in either case
pursuant to the Transitional
Services Agreement;
"IT SYSTEMS" means information technology,
including hardware, software, networks
and peripherals;
"JOINT PERIOD" means a period of account for Taxation
purposes which is primarily by
reference to a Business Asset rather
than a person and which is a Straddle
Period;
"LEASE" means the lease under which any
Business Property which is leasehold
is held and all documents supplemental
to the lease including any licence,
consent or approval given under it;
"▇▇▇▇▇▇▇ BUSINESS" means that part of the Business
carried on by Bestfoods France S.A.
and Generale Condimentaire S.A.S. in
and from the Business Properties
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located at Grande Synthe, France;
"▇▇▇▇▇▇▇ LICENCE" means the licence dated 15th February,
1995 between ▇▇▇▇▇▇▇ Alimentaire S.A.
and CPC France in relation to the
▇▇▇▇▇▇▇ trade marks;
"LETTING DOCUMENTS" means, in respect of a Business
Property, the leases, tenancy
agreements, licences and other rights
of occupation and possession granted
by the relevant Business Seller (or
its predecessor in title) in respect
of that Business Property;
"LICENCES IN" means the licences of Intellectual
Property or know-how granted to the
Company or a member of the Sellers'
Group in relation to the Business by
third parties;
"LICENCES OUT" means the licences of Intellectual
Property or know-how granted by the
Company or a member of the Sellers'
Group in relation to the Business to
third parties;
"LICENSED BACK RIGHTS" means Intellectual Property licensed
by a member of the Purchaser's Group
to the Sellers' Group pursuant to this
Agreement, including the Intellectual
Property set out in Part 3 of
Attachment 4;
"LICENSED RIGHTS" means Intellectual Property licensed
by a member of the Sellers' Group to
the Purchaser pursuant to this
Agreement, including the Intellectual
Property set out in Part 2 of
Attachment 4, together with the trade
marks (registered and unregistered),
patents and registered designs
(including applications for registered
designs) if any, owned by a member of
the Sellers' Group which were used
(but not exclusively used) in the
Business in the 12 months prior to
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Completion;
"LP(MP)A" means the Law of Property
(Miscellaneous Provisions) ▇▇▇ ▇▇▇▇;
"MERGER REGULATION" means Council Regulation 4064/89 EEC,
as amended by Council Regulation
1310/97 EC;
"PAYABLES" means, in respect of each Business
Seller, trade and other
creditors/accounts payable of that
Business Seller for the purposes of
the Business (including third party
trade creditors, like amounts owed to
companies in the Sellers' Group, bills
of exchange payable (other than
accommodation bills), other creditors
and accruals and deferred income, each
as detailed in Topic Area 200 of the
Unilever Accounting Policy Manual) in
each case at midnight (applicable
local time) on the Completion Date and
including such part of such amounts as
relates to VAT;
"PAYER" has the meaning given in Clause 28(D);
"PERMITTED ENCUMBRANCES" means security interests arising in
the ordinary and usual course of
business or by operation of law,
security interests arising under sales
contracts with title retention
provisions and equipment leases with
third parties involving expenditure of
less than E1,000,000 per year and
entered into in the ordinary and usual
course of business and security
interests for Taxes and other
governmental charges which are not due
and payable or which may thereafter be
paid without penalty;
"PLANS" has the meaning given in Schedule 10;
"PRESS ANNOUNCEMENTS" means the press announcements to be
issued by each of the Sellers and the
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Purchaser upon signature of this
Agreement each as set out in
Attachment 8;
"PROCEEDINGS" means any proceeding, suit or action
arising out of or in connection with
this Agreement or any transaction
contemplated hereby;
"PROCESS AGENT" has the meaning given in Clause 45(A);
"PROPERTY CONSENT" means, in relation to any Business
Property, the consent of any landlord
or other third party required for the
transfer of the whole or any part of
the relevant Business Property to the
Purchaser;
"PROPERTY TRANSFER" means the transfer of the relevant
Business Property in accordance with
the relevant provisions of Schedule 9;
"PROPERTY UNDERLEASE means, in relation to any Business
APPROVAL" Property, the consent of any landlord
or other third party required for the
grant of an underlease of the whole or
any part of the relevant Business
Property to the Purchaser;
"PURCHASER'S means PricewaterhouseCoopers, of 1
ACCOUNTANTS" ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
"PURCHASER'S BANK means the Euro account designated by
ACCOUNT" the Purchaser to the Sellers not less
than two Business Days before
Completion;
"PURCHASER'S COMPLETION has the meaning given in Clause 22(A);
DOCUMENTS"
"PURCHASER'S GROUP" means the Purchaser and its
subsidiaries (including the Company
and the Designated Purchasers), and
references to a "MEMBER" or "MEMBERS"
of the Purchaser's Group shall be
construed accordingly;
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"QUALIFIED IP WARRANTY means Intellectual Property and
RIGHTS" know-how owned by or licensed to
members of the Sellers' Group which do
not relate to the Business, but
excluding any trade ▇▇▇▇ rights to:
(i) BATCHELORS, OXO, VESTA and
RAGULETTO in the EEA;
(ii) CUP-A-SOUP in the UK, Republic
of Ireland and Portugal;
(iii) ROYCO in the EEA and French
overseas territories; and
(iv) ▇▇▇▇▇▇▇ on a world-wide basis
(excluding Morocco and Egypt)
which are licensed to any member
of the Sellers' Group under a
Licence In;
"RAGULETTO ▇▇▇▇" means each of the registered trade
marks set out in Part 5 of Attachment
4;
"RAGULETTO SALE DATE" has the meaning given in Clause 3(B);
"RECEIVABLES" means, in respect of each Business
Seller, debtors/accounts receivable
for the purposes of the Business
(including third party trade debtors,
like amounts owed by companies in the
Sellers' Group, other debtors, accrued
income and prepayments, each as
detailed in Topic Area 220 of the
Unilever Accounting Policy Manual) in
each case at midnight (applicable
local time) on the Completion Date and
including such part of such amounts as
relates to VAT;
"REFERENCE DATE" means 31st December, 2000;
"RELIEF" has the meaning given in the Tax
Covenant;
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"RESIGNING DIRECTORS" means those directors and officers of
the Company who are nominated by the
Purchaser to resign as officers or
directors of the Company at Completion;
"RESTRICTED PERIOD" means the longer of the period:
(a) expiring six months after the
relevant trade ▇▇▇▇ comprised in
the Business IPR has ceased to
be used by any member of the
Purchaser's Group (or any
subsequent assignee); or
(b) during which the relevant trade
▇▇▇▇ comprised in the Business
IPR is the subject of trade ▇▇▇▇
registration (or application for
registration) in any territory
in the name of any member of the
Purchaser's Group (or any
subsequent assignee);
"RESTRICTED PRODUCT" means a sauce which uses or
incorporates enzymatically modified
egg technology or know-how;
"RESTRICTED TECHNOLOGY" means a product incorporating or using
any know-how or technology the rights
to which are owned by any member of
the Sellers' Group, and which any
Employee has developed, assisted in
the development of or otherwise has
had access to, but which know-how or
technology does not relate to the
European Culinary Brands Business;
"REVIEW PERIOD" has the meaning given in paragraph 5
of Part A of Schedule 5;
"SECONDED EMPLOYEES" means the persons whose names are set
out in Part 3 of Attachment 6;
"SELLER CONFIDENTIAL means all information (other than to
INFORMATION" the extent that it relates to the
Business) which is not in the public
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domain in whatever form held:
(i) relating to any member of the
Sellers' Group or the business
of any such member;
(ii) supplied by or on behalf of any
member of the Sellers' Group to
any member of the Purchaser's
Group; or
(iii) supplied in confidence to any
member of the Sellers' Group by
any third party,
and, for the avoidance of doubt, shall
include the Unilever Manuals and
Policy Documents;
"SELLERS' ACCOUNTANTS " means PricewaterhouseCoopers, of ▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇;
"SELLERS' BANK ACCOUNT" means the Euro account designated by
the Sellers to the Purchaser not less
than two Business Days before
Completion;
"SELLERS' COMPLETION has the meaning given in paragraph 1
DOCUMENTS" of Schedule 3;
"SELLERS' GROUP" means the Sellers and their
subsidiaries (but excluding the
Company), and references to a "MEMBER"
or "MEMBERS" of the Sellers' Group
shall be construed accordingly;
"SELLERS' GROUP PLAN" has the meaning given in Schedule 10;
"SENIOR EMPLOYEE" means any Employee who is employed in
work level 3A or above of the Sellers'
Group or of a Company;
"SENIOR SELLERS' GROUP means any employee of any member of
EMPLOYEE" the Sellers' Group (other than any
Business Employee) who has been
involved in the European Culinary
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Brands Business and who is employed in
a position carrying significant
managerial responsibilities or who has
responsibilities of a technical nature
including, without limitation, any
such employee who is employed in work
level 4 or above of the Sellers' Group
at the date of this Agreement;
"SERVICE DOCUMENT" means a claim form, summons, order,
judgment or other document issued in
connection with any Proceedings;
"SHARE SELLER" means the company whose name appears
in Column (2) of Part B of Schedule 6,
which holds the Shares set opposite
its name in Column (4) of Part B of
Schedule 6;
"SHARED INTERNET means any text, graphics, multimedia
CONTENT" materials and computer code (together
with all Intellectual Property
comprised therein) which relate to the
Business (but excluding (i) any
internet content the Intellectual
Property in which is contained in the
Business IPR; and (ii) any of the
Unilever Marks which are not and do
not form part of the Licensed Rights)
which are owned by any member of the
Sellers' Group and are (or have been
in the 12 months preceding Completion)
used in a publicly accessible internet
web site owned and operated by any
member of the Sellers' Group;
"SHARED KNOW-HOW" means know-how proprietary to a member
of the Sellers' Group and used at
Completion by the European Culinary
Brands Business and in other
businesses carried on by members of
the Sellers' Group but excluding:
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(i) any such know-how which is the
subject of any patents or patent
applications which are licensed
pursuant to the terms of the
Intellectual Property Licences;
and
(ii) all know-how relating to
products which are at Completion
and/or will after Completion be
manufactured and/or packaged in
factories owned by the European
Culinary Brands Business
exclusively for and/or
exclusively on behalf of members
of the Sellers' Group pursuant
to either of the Co-packing
Agreements;
"SHARES" means those issued shares in the
capital of the Company details of
which are set out in Column (4) of
Part B of Schedule 6;
"SITE" means:
(i) any site owned or occupied at or
prior to Completion by the
Company or, in relation to the
Business, any member of the
Sellers' Group, and used or
formerly used by the Company or,
in relation to the Business,
member of the Sellers' Group for
the manufacture by such person
of products; and
(ii) any site to which Hazardous
Materials generated by the
Company or, in relation to the
Business, any member of the
Sellers' Group, have been sent
for recovery, treatment or
disposal at or prior to
Completion;
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"SO FAR AS THE SELLERS means so far as is within the actual
ARE AWARE" knowledge of:
(i) in relation to all matters other
than Taxation and pensions
matters:
(a) in respect of all
countries, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇ and Cis
Marring;
(b) in respect of Belgium
only, ▇▇▇▇▇ ▇▇ ▇▇▇▇ and
▇▇▇▇▇▇▇ ▇▇▇▇▇;
(c) in respect of Denmark
only, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇;
(d) in respect of Finland
only, ▇▇▇▇▇
▇▇▇▇▇▇-Pitkakoski;
(e) in respect of France only,
Francois Marquant-Gairard
and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇;
(f) in respect of Germany
only, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and
▇▇▇▇▇ ▇▇▇▇;
(g) in respect of the Republic
of Ireland only, ▇▇▇▇
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇;
(h) in respect of the
Netherlands only, ▇▇▇▇▇
Sonnenville and ▇▇▇▇
Arisse;
(i) in respect of Portugal
only, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇;
(j) in respect of Sweden only,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇; and
(k) in respect of the United
Kingdom only ▇▇▇▇ ▇▇▇▇▇
and ▇▇▇▇ ▇▇▇▇▇▇▇;
(ii) in relation to Taxation matters
only in respect of all
countries, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇;
(iii) in relation to pensions matters
only, in respect of all
countries, ▇▇▇▇▇ ▇▇▇▇▇;
(iv) in relation to Intellectual
Property matters only in respect
of all countries, Huib
Berendschot, Senior Trade Marks
Manager, and
(v) in relation to IT Systems
matters only, ▇▇▇▇▇▇ ▇▇▇▇▇ and
▇▇▇▇ ▇▇▇▇▇▇▇ (Head of IT across
Europe),
and so far as would be within the
knowledge of the Sellers if the
Sellers had made due and careful
enquiry of the above persons, and all
other phrases in this Agreement
relating to the knowledge, information
and belief or awareness of the Sellers
shall be construed as a reference to
"SO FAR AS THE SELLERS ARE AWARE" as
so defined;
"STOCKS" means:
(i) all Business Stocks; and
(ii) all raw materials, packing
materials and consumables,
stocks-in-process or finished
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stocks and goods for resale
(wherever located and as
classified and further detailed
in Topic Area 550 of the
Unilever Accounting Policy
Manual) beneficially owned by
the Company (including items
which, although subject to
reservation of title by the
relevant sellers, are under the
control of the Company) and
which have in any case been:
(A) physically allocated or
separated for use
exclusively by any of the
Company; or
(B) otherwise clearly
identified (whether
physically or by written
reference agreed by the
Sellers and the Purchaser)
as forming part or a fixed
proportion of one or more
sets, stores or
consignments of such raw
materials, consumables,
stocks-in-process,
finished stocks or goods
or such fixed proportion
of any of the same, being
a proportion of the
fungible contents of any
tank or other storage or
dispensing vessel, as is
in any case for the
exclusive use of the
Company,
in each case:
(1) for the purposes of the
definition of "Completion
Stocks Amount" only, at
midnight (applicable local
time) on the Completion
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Date; and
(2) for all other purposes, at
Completion;
"STRADDLE PERIOD" means any period of account for
Taxation purposes which begins on or
before and ends after Completion;
"SWEDISH WAREHOUSE means the agreement of that name in
SERVICES AGREEMENT" the Agreed Form relating to the
continuing use by members of the
Sellers' Group of warehouse premises
and services at the Business Property
in Sweden;
"TARGET STOCKS AMOUNT" means the sum of the amounts in the
table in Part B of Schedule 5, being
E21,900,000;
"TAX" OR "TAXATION" means all taxes, levies, duties,
imposts, charges and withholdings of
any nature whatsoever, including
(without limitation) national
insurance contributions, taxes on
gross or net Income, Profits or Gains
(as defined in the Tax Covenant) and
taxes on receipts, sales, use,
occupation, franchise, value added and
personal property, together with all
penalties, fines, charges and interest
relating to any of them;
"TAX AUTHORITY" means any taxing or other authority
(anywhere in the world) competent to
impose any liability to assess or
collect Tax;
"TAX CLAIM" has the meaning given in paragraph
9(C) of Schedule 4;
"TAX COVENANT" means the tax covenant in the Agreed
Form;
"TAX CREDIT" has the meaning given in Clause 28(D);
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"TAX PAYMENT" has the meaning given in Clause 28(D);
"TAX RETURN" has the meaning given in the Tax
Covenant;
"TAX WARRANTIES" means the Warranties set out in
paragraphs 26 to 43B of Schedule 3;
"TERMINATION DATE" means the date falling 65 Business
Days after the date of this Agreement;
"THIRD PARTY CLAIM" has the meaning given in Clause 31(C);
"TRANSITIONAL SERVICES means the transitional services
AGREEMENT" agreement in the Agreed Form;
"TRUSTEE" means the person with that title
appointed as such by the Sellers
pursuant to the Undertaking, being
Deloitte & Touche, of ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇;
"UK BUSINESS ASSETS" means any Business Assets located in
the United Kingdom at the date of this
Agreement;
"UK EMPLOYEES" means Employees employed by a member
of the Sellers' Group incorporated in
the United Kingdom;
"UNDERTAKING" means the undertaking given by the
Sellers to the European Commission and
annexed to the decision of the
European Commission in Case No.
Comp./M. 1990 dated 28th September,
2000;
"UNILEVER ACCOUNTING means the Unilever Accounting Policy
POLICY MANUAL" Manual which forms Attachment 2;
"UNILEVER MANUALS AND means the Sellers' Group financial and
POLICY DOCUMENTS" management procedures manuals and
other documents listed in Attachment
9, which are in the possession or
under the control of the Business or a
Company or any of their
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employees or are otherwise used in the
operation of the European Culinary Brands
Business;
"UNILEVER MARKS" means any of the words or any letter
combination or words similar thereto
or any of the marks and devices
displayed, in each case in Attachment
5 and any name, ▇▇▇▇ or device which
includes or consists thereof;
"VAT" means in relation to any jurisdiction
within the European Community, the tax
imposed by the Sixth Council Directive
of the European Communities and any
national legislation implementing that
directive together with legislation
supplemental thereto and, in relation
to any other jurisdiction, the
equivalent tax (if any) in that
jurisdiction;
"WARRANTIES" means the warranties set out in
Schedule 3;
"WASTE" means any waste including anything
which is abandoned, unwanted or
surplus irrespective of whether it is
capable of being recovered or recycled
or has any value;
"WORKING HOURS" means 9.30 a.m. to 5.30 p.m. (local
time) on a Business Day; and
"WORLD-WIDE MARKS" means the trade marks listed in Part 6
of Attachment 4.
2. In this Agreement and the Schedules to it, unless otherwise
specified:
(A) references to Clauses, sub-clauses, Schedules and Attachments are to
Clauses and sub-clauses of, and Schedules and Attachments to, this
Agreement;
(B) a reference to a sub-clause is to a sub-clause of the Clause in
which such reference appears, to a paragraph is to a paragraph of
the sub-clause or Schedule (as the case may be) in which such
reference
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appears and to a sub-paragraph is to a sub-paragraph of the paragraph in
which such reference appears;
(C) a reference to any statute or statutory provision shall be construed
as a reference to the same as it may have been, or may from time to
time be, amended, modified or re-enacted except to the extent that
any such amendment, modification or re-enactment after the date of
this Agreement would increase or extend the liability of any person
under or pursuant to this Agreement;
(D) references to a "COMPANY" shall be construed so as to include any
company, corporation or other body corporate, wherever and however
incorporated or established;
(E) references to a "PERSON" shall be construed so as to include any
individual, firm, company, government, state or agency of a state or
any joint venture, association, or partnership (whether or not
having separate legal personality);
(F) a company is a "SUBSIDIARY" of another company (its "HOLDING
COMPANY") if that other company, directly or indirectly, through one
or more subsidiaries:
(i) holds a majority of the voting rights in it; or
(ii) is a member or shareholder of it and has the right to appoint
or remove a majority of its board of directors or other
equivalent managing body; or
(iii) is a member or shareholder of it and controls alone, pursuant
to an agreement with other shareholders or members, a majority
of the voting rights in it;
(G) references to writing shall include any modes of reproducing words
in a legible and non-transitory form;
(H) references to times of the day are to local time in the relevant
jurisdiction;
(I) headings are for convenience only and do not affect the
interpretation of this Agreement;
(J) references to any English legal term for any action, remedy, method
of judicial proceeding, legal document, legal status, court,
official, or any legal concept shall in respect of any jurisdiction
other than England be deemed to include what most nearly
approximates in that jurisdiction to the English legal term;
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(K) references in any Warranty or in Clause 8 to any monetary sum
expressed in Euros shall, where such sum is referable in whole or
part to a particular jurisdiction, be deemed to be a reference to an
equivalent amount in the local currency of that jurisdiction
translated at the prevailing exchange rate applicable to that amount
of Euros by reference to the spot rate of exchange (closing
mid-point) for the date of this Agreement published in the London
edition of The Financial Times first published after the date of
this Agreement;
(L) where it is necessary to determine whether a monetary limit or
threshold set out in paragraph 1 of Schedule 4 has been reached or
exceeded (as the case may be) and the value of the relevant claim or
any of the relevant claims is expressed in a currency other than
Euros, the value of each such claim shall be translated into Euros
at the spot rate of exchange (closing mid-point) on the date of
receipt by the Sellers of written notification from the Purchaser in
accordance with paragraph 2 of Schedule 4 of the existence of such
claim or, if such day is not a Business Day, on the Business Day
immediately preceding such day as published in the London edition of
The Financial Times first published thereafter or, where no such
rate of exchange is published on that date, the rate quoted by
Citibank N.A. as at the close of business in London on that date;
(M) where any Warranty or any provision of Clause 8 is qualified or
phrased by reference to materiality, such reference shall, unless
specified to the contrary, be construed as a reference to
materiality in the context of that part of the European Culinary
Brands Business:
(i) carried on in and from the United Kingdom and the Republic of
Ireland, or
(ii) that part of the European Culinary Brands Business carried on
in and from other countries
as the case may be, and where any Warranty contains a reference to a
material adverse effect, such reference shall be construed as a
reference to a material adverse effect on one or both of those two
parts of the European Culinary Brands Business;
(N) other than in the Tax Covenant, references to "INDEMNIFY" and
"INDEMNIFYING" any person against any circumstances include
indemnifying and keeping that person harmless from all actions,
claims, demands and proceedings from time to time made against that
person and all liabilities, loss, damages and all reasonable
payments, costs and expenses made or incurred by that person as a
consequence of that circumstance and:
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(i) the provisions of Clause 31(C) to (F) shall apply to such
indemnification;
(ii) references to the Purchaser indemnifying each member of the
Sellers' Group or relevant Business Sellers shall constitute
undertakings by the Purchaser to the Sellers for themselves
and on behalf of each other member of the Sellers' Group; and
(iii) references to the Sellers indemnifying each member of the
Purchaser's Group shall constitute undertakings by the Sellers
to the Purchaser for itself and on behalf of each other member
of the Purchaser's Group;
(O) references to the singular shall include the plural and vice versa;
(P) references to "EUROS", or "E" are to the lawful currency of the
member states of the European Union that have adopted the single
currency in accordance with the Treaty Establishing the European
Community, as amended by the Treaty on European Union;
(Q) subject to sub-clause (P) references to "L" are to the lawful
currency of the United Kingdom; and
(R) each of the Attachments shall be in an Agreed Form.
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SCHEDULE 2
(COMPLETION ARRANGEMENTS)
1. GENERAL
(A) Sellers' obligations
At Completion the Sellers shall:
(i) deliver to the Purchaser a copy of the minutes (certified by a
duly appointed officer as true and correct) of a duly held
meeting of the directors of each of the Sellers (or of a duly
constituted committee thereof) authorising the execution of
and the performance by the relevant Seller of this Agreement
and of the Sellers' Completion Documents to which the relevant
Seller is a party and, in the case where such execution is
authorised by a committee of the board of directors of the
relevant Seller, a copy of the minutes (certified by a duly
appointed officer as true and correct) of a duly held meeting
of the directors constituting such committee or the relevant
extract thereof;
(ii) deliver to the Purchaser original counterparts of the
Intellectual Property Assignments, the Intellectual Property
Licences and the Co-existence Agreement, duly executed by the
Sellers and/or the relevant members of the Sellers' Group;
(iii) procure that, at the direction of the Purchaser, all land or
title certificates, title deeds or other documents relating to
the Business Properties and the Company Properties and other
relevant documents are either delivered to the Purchaser or
are held to the order of the Purchaser at the offices of the
relevant Company or its agents;
(iv) deliver to the Purchaser an original counterpart of the Tax
Covenant, duly executed on behalf of the Sellers;
(v) deliver to the Purchaser Property Transfers for the Business
Properties pursuant to but subject to the provisions of
Schedule 9 duly executed on behalf of the Business Sellers;
(vi) deliver to the Purchaser an original counterpart of the
Transitional Services Agreement, duly executed on behalf of
each of the Sellers;
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(vii) deliver to the Purchaser original counterparts of each of the
Co-packing Agreements, duly executed on behalf of each of the
Sellers;
(viii) deliver to the Purchaser an original counterpart of the Ashford
Novation Agreement duly executed on behalf of Van den ▇▇▇▇▇ Foods
Limited and Quest International (Fragrances, Flavours, Food
Ingredients) UK Limited; and
(ix) deliver to the Purchaser an original counterpart of the
Swedish Warehouse Services Agreement, duly executed on behalf
of the relevant member of the Sellers' Group.
(B) Purchaser's obligations
At Completion the Purchaser shall:
(i) deliver to the Sellers:
(a) a copy of the resolution or resolutions adopted at a
duly held meeting of the board of directors of the
Purchaser (or of a duly constituted committee thereof)
authorising the execution of and the performance by the
Purchaser of this Agreement and the Purchaser's
Completion Documents and, in the case where such
execution is authorised by a committee of the board of
directors of the Purchaser, a copy of the minutes of a
duly held meeting of the directors constituting such
committee or the relevant extract thereof;
(b) original counterparts of the Intellectual Property
Assignments, the Intellectual Property Licences and the
Co-existence Agreement, duly executed by the Purchaser
and/or the relevant members of the Purchaser's Group;
(c) an original receipt acknowledging delivery of all
documents required to be delivered by the Sellers
pursuant to this Schedule;
(d) an original counterpart of the Tax Covenant, duly
executed on behalf of the Purchaser;
(e) an original counterpart of the Transitional Services
Agreement, duly executed on behalf of the Purchaser;
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(f) original counterparts of each of the Co-packing
Agreements, duly executed on behalf of the relevant
member or members of the Purchaser's Group;
(g) an original counterpart of the Ashford Novation
Agreement, duly executed on behalf of the relevant
Designated Purchaser; and
(h) an original counterpart of the Swedish Warehouse
Services Agreement, duly executed on behalf of the
relevant Designated Purchaser; and
(ii) pay the Debt Free Price for same day value to the Sellers'
Bank Account.
2. GENERAL PROVISION IN RELATION TO THE BUSINESS
Subject to Clause 4, at Completion (or as soon as reasonably
practicable thereafter) the Business Sellers shall cause to be
delivered or made available to the Purchaser (or as the Purchaser
may direct) such documents as the Purchaser may reasonably require
to complete the sale and purchase of the Business Assets, and shall
deliver to the Purchaser (or the relevant Designated Purchaser)
all those Business Assets which are capable of transfer by delivery
(other than any Books and Records which shall be delivered to the
Purchaser in accordance with Clause 27), with the intent that title
in such Business Assets shall pass by and upon such delivery.
3. SPECIFIC PROVISIONS IN RELATION TO THE BUSINESS
(A) Belgium
At Completion, the Sellers shall procure that Unilever Belgium N.V.
shall and the Purchaser shall procure that the relevant Designated
Purchaser shall execute or shall procure the execution of a transfer
agreement in relation to the relevant Business Assets located in
Belgium.
(B) Denmark
At Completion, the Sellers and the Purchaser shall execute or shall
procure the execution of an asset transfer agreement in relation to
the relevant Business Assets located in ▇▇▇▇▇▇▇.
▇▇▇
▇▇▇
(▇) ▇▇▇▇▇▇▇
At Completion, the Sellers and the Purchaser shall execute or shall
procure the execution of an asset transfer agreement in relation to
the relevant Business Assets located in Finland.
(D) France
(i) Subject to Clause 4, at Completion or at such later time as
the conditions in sub-clause 4(A) have been satisfied or
waived:
(a) the Sellers shall procure that one or more business
transfer agreements shall be executed by the relevant
Business Sellers in relation to those of the Business
Assets owned by Generale Condimentaire S.A.S., Fralib
Sourcing Unit S.A. and Bestfoods France S.A. and the
Purchaser shall procure that the relevant Designated
Purchaser or Designated Purchasers execute the same;
(b) the Sellers shall procure that Bestfoods France S.A.
executes and the Purchaser shall procure that the
relevant Designated Purchaser executes a notarial deed
in respect of the sale of the research centre located at
rue ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Zone Industrielle, 59760 Grande
Synthe, France identified as such in paragraph 1 of Part
D of Schedule 9;
(c) the Sellers shall procure that Generale Condimentaire
S.A.S. executes and the Purchaser shall procure that the
relevant Designated Purchaser executes a notarial deed
in respect of the factory located at rue ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Zone Industrielle, 59760 Grande Synthe, France
identified as such in section 2 of Part C of Schedule 9;
and
(d) the Sellers shall deliver to the Purchaser the opinion
of the works councils of Fralib Sourcing Unit S.A. and
Bestfoods France S.A. on the transfers of the relevant
parts of the Business by those companies.
(ii) After Completion or, if later, the satisfaction of the
conditions set out in sub-clause 4(A), subject to Clause 4 the
Purchaser shall or shall procure that:
(a) the relevant formalities are carried out at the National
Institute of Intellectual Property (INPI) with respect
to relevant Business IPR;
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(b) the business transfer agreements in relation to those of
the Business Assets owned by Generale Condimentaire
S.A.S., Fralib Sourcing Unit S.A. and Bestfoods France
S.A. are registered with the relevant French Tax
Authorities; and
(c) legal announcements are made as required by the Law of
17th March, 1909.
(E) Germany
At Completion, the Sellers shall or shall procure that, if required
in Germany, an agreement in respect of the sale and transfer of the
relevant Business Assets located in Germany and executed on behalf
of the Sellers or the relevant Business Sellers shall be delivered
to the relevant Designated Purchaser.
(F) Portugal
At Completion the Sellers shall deliver to the Purchaser an executed
power of attorney under which the Sellers may transfer the Business
Assets located in Portugal on behalf of all persons required to
execute such sale in favour of the relevant Designated Purchaser.
(G) Sweden
At Completion, the Sellers and the Purchaser shall execute or shall
procure the execution of an asset transfer agreement and such other
agreements as may be necessary in relation to the Business Assets
located in Sweden.
4. SPECIFIC PROVISIONS IN RELATION TO THE COMPANY
(A) At least five Business Days prior to Completion the Sellers
shall ensure that they have nominated a civil law notary and
delivered the following to that person:
(i) valid powers of attorney (and, where necessary,
supporting legal opinions) to execute a notarial deed of
transfer of the Shares in the Company to the relevant
Designated Purchaser;
(ii) shareholders' resolutions of the Company approving the
sale and transfer of those Shares to the relevant
Designated Purchaser;
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(iii) signed trade register forms concerning the change of the
sole shareholder of the Company and the resignations of
the Resigning Directors of the Company; and
(iv) signed resignations of the Resigning Directors in a form
agreed by the parties.
(B) At least five Business Days prior to Completion the Purchaser
shall deliver the following to the civil law notary referred
to in sub-paragraph (i) above:
(i) valid powers of attorney (and, where necessary,
supporting legal opinions) to execute the notarial deed
of transfer referred to in sub-paragraph (i) above; and
(ii) signed trade register forms concerning the change of the
sole shareholder of the Company and the appointments as
directors of the persons nominated by the Purchaser in
relation to the Company pursuant to paragraph 4 above.
(C) At Completion the Sellers shall procure that a notarial deed
of transfer of the Shares in the Company to the relevant
Designated Purchaser is executed by Unilever Nederland B.V.
and shall deliver the shareholders' register of the Company to
the Purchaser or the relevant Designated Purchaser.
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SCHEDULE 3
(THE WARRANTIES)
1. CAPACITY OF THE SELLERS
(A) Each of the Sellers has the requisite power and authority to enter
into and perform this Agreement and the other documents which are to
be executed by that Seller at Completion (the "SELLERS' COMPLETION
DOCUMENTS") and has obtained all corporate authorisations and all
other applicable governmental, statutory, regulatory or other
consents, licences, authorisations, waivers, reviews or exemptions
to empower it to enter into this Agreement and the Sellers'
Completion Documents.
(B) This Agreement constitutes and the Sellers' Completion Documents
will, when executed by the relevant Seller, constitute binding
obligations of the relevant Seller in accordance with their
respective terms.
(C) The execution and delivery of, and the performance by each of the
Sellers of their respective obligations under, this Agreement and
the Sellers' Completion Documents to which each is respectively a
party will not:
(i) result in a breach of any provision of the memorandum or
articles of association or equivalent constitutional documents
of the relevant Seller or any applicable laws and regulations;
(ii) result in a breach of, or constitute a default under, any
instrument to which the relevant Seller is a party or by which
the relevant Seller is bound;
(iii) result in a breach of any order, judgment or decree of any
court, governmental agency or regulatory authority to which
the relevant Seller is a party or by which the relevant Seller
is bound; or
(iv) save as contemplated by this Agreement, require the relevant
Seller to obtain any consent or approval of, or give any
notice to or make any registration with, any governmental or
other authority which has not been obtained or made at the
date of this Agreement and is in full force and effect.
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2. OWNERSHIP OF THE SHARES
(A) Each Share Seller is the sole legal and beneficial owner of those of
the Shares set opposite its name in Column (4) of Part B of Schedule
6.
(B) There is no option, right to acquire, mortgage, charge, pledge, lien
or other form of security or encumbrance or equity on, over or
affecting the Shares or any of them, there is no agreement or
commitment entered into by any member of the Sellers' Group to give
or create any of the foregoing and, so far as the Sellers are aware,
no claim has been made by any person to be entitled to any of the
foregoing.
3. ARRANGEMENTS BETWEEN THE SELLERS' GROUP AND THE BUSINESS AND THE
COMPANY
No contract referred to in paragraphs 11(A) and (B) which is other
than on arm's length terms is outstanding between:
(A) the Company or (in relation to the Business) any Business Seller; and
(B) any member of the Sellers' Group (other than the Business Sellers)
or any person who is a director of any member of the Sellers' Group
(other than the Business Sellers).
4. THE COMPANY
(A) The Shares comprise the whole of the issued and allotted share
capital of the Company and are fully paid up and non-assessable to
future calls of capital.
(B) There is no outstanding agreement or commitment entered into by any
member of the Sellers' Group which calls for the allotment, issue or
transfer of, or accords to any person the right to call for the
allotment or issue or transfer of, any shares or debentures in or
other securities of the Company.
(C) The Company is duly organised, registered and validly existing under
the laws of the jurisdiction in which it is incorporated.
(D) The information given in Schedule 7 is true and accurate in all
respects.
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5. INTERESTS OF THE COMPANY
The Company has no interest in the share capital of any other
company.
6. OWNERSHIP AND SUFFICIENCY OF BUSINESS ASSETS
(A) Each of the Business Assets is owned both legally and beneficially
by a Business Seller and is not the subject of any security interest
or any assignment, equity, option, right of pre-emption, royalty,
factoring arrangement, leasing or hiring arrangement, conditional
sale or credit sale agreement, agreement for payment on deferred
terms or any similar arrangement (except for assets which have been
sold subject to retention of title and assets which are leased or
subject to hire purchase arrangements where the lease or hire
purchase payment is less than E75,000 per year) and each of those
assets capable of possession is, save where in the possession of
third parties in the ordinary and usual course of business, in the
possession of a Business Seller or another member of the Sellers'
Group.
(B) Each of the assets used by the Company on the date of this Agreement
(other than Company Properties, obsolete assets or redundant assets
or cash disposed of as part of the ordinary running of their
business and other assets which are the subject matter of operating
or finance or capital leases (as detailed in Topic Area 290, Topics
80 to 82 of the Unilever Accounting Policy Manual)) is owned both
legally and beneficially by the Company and is not the subject of
any security interest or any assignment, equity, option, right of
pre-emption, royalty, factoring arrangement, leasing or hiring
arrangement, conditional sale or credit sale agreement, agreement
for payment on deferred terms or any similar arrangement (except for
assets which have been sold subject to retention of title and assets
which are leased or subject to hire purchase arrangements where the
lease or hire purchase payment is less than E75,000 per year) and
each of those assets capable of possession is, save where in the
possession of third parties in the ordinary and usual course of
business, in the possession of or under the control of a Company or
a member of the Sellers' Group.
(C) The Business Assets, the Excluded Assets, the Excluded Contracts and
the assets of the Company, together with such other facilities and
services which are to be provided to the Purchaser and/or to other
members of the Purchaser's Group pursuant to the Transitional
Services Agreement, comprise all the assets required to carry on the
European Culinary Brands Business in the same manner and in the same
places as carried on at the date of this Agreement.
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(D) All the plant, machinery, equipment and vehicles used by the Company
and the Business Sellers in relation to the Business:
(i) are in a good state of repair and operating condition and are
not dangerous and comply with all applicable health and safety
legal requirements (reasonable wear and tear excepted in each
case);
(ii) are capable of being efficiently and properly used for the
purpose for which they are used at the date of this Agreement;
and
(iii) are not, in the view of the Sellers, obsolete but are in
current use or future intended use.
(E) the levels of the Stocks held at the date of this Agreement are,
taking seasonal variations into account, not substantially
inconsistent with historic levels of stock held and are adequate in
relation to the current trading requirements of the Business. The
Stocks are in good and undamaged condition and are of merchantable
quality.
7. ENCUMBRANCES
Save for Permitted Encumbrances, no option, right to acquire,
mortgage, charge, pledge, lien or other form of security or
encumbrance or equity on, over or affecting the whole or any part of
the Business Assets (other than the Business IPR, any Information
relating to the Business and the Business Properties) or of the
assets of the Company (other than the Company Properties) is
outstanding and, save in relation to Permitted Encumbrances, no
agreement or commitment has been entered into by any of the Business
Sellers or the Company to give or create any or any claim made
against any of the Business Sellers or any Company by any person to
be entitled to any.
8. ACCURACY OF INFORMATION
(A) All registers and minute books required to be kept by each Company
under the law of its jurisdiction of incorporation have in all
material respects been properly kept and contain a record of the
matters which should be dealt with in those books and no notice or
allegation that any of such books is materially incorrect or should
be rectified has been received by the relevant Company where such
books have not been corrected or rectified.
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(B) The copies of the memorandum and articles of association or
equivalent constitutional documents of each Company contained in the
Data Room are complete and accurate copies.
9. FINANCIAL INFORMATION AND ACCOUNTS
(A) The Financial Information, comprising the financial information in
respect of those parts of the European Culinary Brands Business
carried on in:
(i) the United Kingdom and the Republic of Ireland (as set out in
Part 1 of Attachment 1);
(ii) Denmark, Finland and Sweden (as set out in Part 2 of
Attachment 1); and
(iii) Belgium, France, Germany, the Netherlands and Portugal (as set
out in Part 3 of Attachment 1)
was, save to the extent that it relates to the Bestfoods Businesses
and save as otherwise specified in Part 4 of Attachment 1, prepared
in all respects material to any of those parts, in accordance with
management accounting principles and practices as set out in the
Unilever Accounting Policy Manual. On that basis and subject as
described in that Financial Information, the Financial Information
in respect of those parts of the European Culinary Brands Business
carried on in each of the three regions identified in paragraphs
(i), (ii) and (iii) above shows respectively, in all material
respects, an accurate view of the net proceeds of sale, gross profit
and profit before overheads of each such part of the European
Culinary Brands Business for the year ended on the Reference Date
and the year ended on 31 December, 1999. For the purposes of this
Warranty, the Financial Information in respect of each such part of
the European Culinary Brands Business shall be considered to show,
in all material respects, an accurate view of the net proceeds of
sale, gross profit and profit before overheads of that part of the
European Culinary Brands Business:
(a) for the year ended on the Reference Date:
(i) in relation to the United Kingdom and the Republic of
Ireland together, where the profit before overheads for
that part of the European Culinary Brands Business for
that period as stated in the Financial Information
relating to it is not more than 3 per cent. lower than
such profit before overheads would have been had such
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Financial Information shown a view of all such matters
which was accurate in all respects;
(ii) in relation to Denmark, Finland and Sweden together,
where the profit before overheads for that part of the
European Culinary Brands Business for that period as
stated in the Financial Information relating to it is
not more than 7 per cent. lower than such profit before
overheads would have been had such Financial Information
shown a view of all such matters which was accurate in
all respects; and
(iii) in relation to the Belgium, France, Germany, the
Netherlands and Portugal together, where the profit
before overheads for that part of the European Culinary
Brands Business for that period as stated in the
Financial Information relating to it is not more than 5
per cent. lower than such profit before overheads would
have been had such Financial Information shown a view of
all such matters which was accurate in all respects; and
(b) for the year ended on 31st December, 1999:
(i) in relation to the United Kingdom and the Republic of
Ireland together, where the profit before overheads for
that part of the European Culinary Brands Business for
that period as stated in the Financial Information
relating to it is not more than 4 per cent. lower than
such profit before overheads would have been had such
Financial Information shown a view of all such matters
which was accurate in all respects;
(ii) in relation to Denmark, Finland and Sweden together,
where the profit before overheads for that part of the
European Culinary Brands Business for that period as
stated in the Financial Information relating to it is
not more than 8 per cent. lower than such profit before
overheads would have been had such Financial Information
shown a view of all such matters which was accurate in
all respects; and
(vi) in relation to Belgium, France, Germany, the Netherlands
and Portugal together, where the profit before overheads
for that part of the European Culinary Brands Business
for that period as stated in the Financial Information
relating to it is not more than 6 per cent. lower than
such profit before overheads would have been had such
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Financial Information shown a view of all such matters
which was accurate in all respects.
(B) Those parts of the Financial Information relating to the year ended
on the Reference Date were, save as specified in Attachment 1,
prepared on bases and in accordance with policies, principles,
procedures and practices consistent with those applied in relation
to those parts of the Financial Information relating to each of the
years ended 31st December, 1999 and 31st December, 1998.
(C) For the year ended on the Reference Date and the year ended on 31
December, 1999, the net proceeds of sale:
(i) in relation to BLA BAND;
(ii) in relation to OXO in the United Kingdom;
(iii) in relation to instant soup sales in Belgium, France and
Germany (comprising sales under the ROYCO brand and sales
under the HEISSE TASSE brand); and
(iv) in relation to instant soup and noodles sold under the
BATCHELORS brand,
were, in each case, at least 90 per cent. of the net proceeds of
sale shown in the Financial Information for those periods.
(D) The Accounts of the Company were prepared in accordance with
generally accepted accounting principles and all applicable laws and
regulations and give a true and fair view of the assets and
liabilities and financial position of the Company as at the Accounts
Date and of the results of the Company for the accounting period
ended on that date.
10. EVENTS SINCE THE REFERENCE DATE
Since the Reference Date:
(A) there has been no material adverse change in the financial or
trading position of the European Culinary Brands Business taken as a
whole;
(B) the European Culinary Brands Business has in all material respects
been carried on in the ordinary and usual course; and
(C) the Company has not redeemed or purchased, or offered or agreed to
redeem or purchase, any of its share capital;
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(D) neither the Company nor any Business Seller in relation to the
Business has (whether in the ordinary and usual course of business
or otherwise) acquired or disposed of, or agreed to acquire or
dispose of, any fixed asset relating to any part of the European
Culinary Brands Business, having a value fixed in excess of E250,000
or the disposal of fixed assets together having a value of
E1,000,000 in aggregate or the acquisition of fixed assets together
having a value of E1,000,000 in aggregate; and
(E) no change has been made in terms of employment, including pension
fund commitments, by the Company or, in relation to any part of the
Business, any Business Seller (other than those required by law in
the jurisdiction in which it operates) which could increase the
total staff costs of the European Culinary Brands Business by more
than 3 per cent. per annum.
11. CONTRACTS
(A) No contract entered into by the Company:
(i) both calls for payments by the Company in excess of E100,000
in any one year and is not terminable by the Company by notice
of 12 months or less (excluding contracts with employees and
purchase or sales orders for stocks placed in the ordinary
course of business);
(ii) is material to the Company and has an unexpired term of two
years or more; or
(iii) involves an obligation or liability in excess of E250,000 and
can be terminated by any other party thereto (other than the
Company) or relieves any other party of any of its obligations
on a change of control of the Company;
(iv) requires (or confers a right to require) the allotment or
issue of any shares, debentures or other securities of the
Company now or at any time in the future;
(B) No Contract:
(i) both calls for payments by the relevant Business Seller in
excess of E100,000 in any one year and is not terminable by or
on behalf of such Business Seller by notice of 12 months or
less (excluding contracts with employees and purchase or sales
orders for stocks placed in the ordinary course of business);
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(ii) involves an obligation or liability in excess of E250,000 and
has an unexpired term of two years or more;
(iii) involves an obligation or liability in excess of E250,000 and
can be terminated by any party thereto (other than a Business
Seller, an agent or a Business Seller or a person holding the
benefit of a contract for a Business Seller) in the event of
the disposal of all or a substantial part of the assets of the
relevant Business of the Business Seller; or
(iv) establishes any joint venture.
(C) So far as the Sellers are aware, neither the Company nor any
Business Seller (in relation to any part of the Business) is in
breach of any term which is material in the context of any of the
contracts referred to in sub-paragraphs (A) and (B) nor, so far as
the Sellers are aware, is any other party to any such contracts and,
so far as the Sellers are aware, nor are there any circumstances
likely to give rise to such a default.
(D) There are no outstanding contracts entered into by any Company or
Business Seller (in relation to the Business) under which such
Company or Business Seller has guaranteed indebtedness in an amount
in excess of E250,000 other than intra-group guarantees referred to
in Clause 15.
(E) There are no outstanding contracts under which any Company or
Business Seller (in relation to the Business) has made any loan to
any person in an amount in excess of E250,000 (other than trade
credit in the ordinary course of business, any loan to any Employee
or any amounts owing between any member of the Sellers' Group and
any other member of the Sellers' Group or any Company (as defined in
Topic Area 360 of the Unilever Accounting Policy Manual)).
(F) So far as the Sellers are aware, during the 12 months preceding the
date of this Agreement no significant customer or supplier to the
Company or to any Business Seller (in relation to the Business) has
ceased to deal, or has served written notice to cease to deal, with
the Company or the relevant Business Seller (as appropriate).
12. BORROWINGS, BANK ACCOUNTS AND TRADE DEBTS
(A) There are no overdrafts, loans or other similar financial facilities
available to the Company which will remain available following
Completion (other than from a member of the Sellers' Group which
arrangements are to be terminated immediately after Completion)
where
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the amount outstanding in respect thereof as at the Reference Date is in
excess of E250,000.
(B) The total amount borrowed by the Company does not exceed any
limitation in its articles of association or equivalent
constitutional document.
13. POWERS OF ATTORNEY
Neither the Company nor (in relation to any Business) any Business
Seller has given any power of attorney, proxy or similar authority
(other than given to an officer of the Company or Business Seller,
an Employee or a patent or trademark agent, in each case in the
ordinary and usual course of its respective business) which is still
outstanding.
14. GRANTS AND ALLOWANCES
Neither the Company nor (in relation to any Business) any Business
Seller has received any grant, allowance, aid or subsidy from any
supranational, national or local authority or government agency
during the last three years of E250,000 or more which is currently
repayable as a result of any act or failure to act by the Company
or, as the case may be, any Business Seller nor have any claims for
repayment been received and no grant, allowance, aid or subsidy from
any supranational, national or local authority or government agency
will be repayable by the Company or (in relation to the Business)
any Business Seller as a result of the sale of the Business Assets
and/or the Shares to the Purchaser.
15. SUBSTANTIAL DEPENDENCE
Since the Reference Date no person (other than the Company or any
members of the Sellers' Group or (in relation to any Business) any
Business Seller) has purchased from or sold to the Business or to
the Company more than 10 per cent. of the aggregate amount of all
sales or purchases made by the Business or, as the case may be, the
Company during such period.
16. CONSENTS AND LICENCES
All statutory, regulatory, governmental and quasi-governmental
licences (excluding any licences in relation to Intellectual
Property), consents, permissions, waivers, exceptions or approvals
the absence of which would have a material adverse effect required
for the carrying on of any part of the European Culinary Brands
Business have been obtained and are in full force and effect and
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there is no circumstance which indicates that any such licence,
consent, permission, waiver, exemption or approval is likely to be
revoked or which may confer a right of revocation.
17. LITIGATION
(A) Neither any Business Seller (in relation to the Business) nor the
Company is engaged in any litigation or arbitration, administrative
or criminal proceedings, whether as plaintiff, defendant or
otherwise or concerning it or any of the assets of the relevant
Business Seller where the amount claimed exceeds E250,000.
(B) No such litigation or arbitration, administrative or criminal
proceedings as are referred to in sub-paragraph (A) are pending nor,
so far as the Sellers are aware, threatened and, so far as the
Sellers are aware, no circumstances exist which are likely to give
rise to any such proceedings where the amount claimed exceeds
E250,000.
18. DELINQUENT AND WRONGFUL ACTS
(A) Neither the Company nor any Business Seller (in relation to the
Business) has committed any criminal or illegal act which would give
rise to a liability in excess of E100,000 for the European Culinary
Brands Business.
(B) Neither the Company nor any Business Seller (in relation to the
Business) has received notification that any investigation or
inquiry is being or has been conducted or is pending or threatened
by any supranational, national or local authority or governmental
agency in respect of the business or affairs of the Company or the
Business which could give rise to a liability in excess of E100,000.
19. BUSINESS PROPERTIES
(A) The Business Properties are each legally and beneficially owned by a
Business Seller and are the only land and buildings owned, used or
occupied in connection with the Business.
(B) None of the Business Properties is subject to any sub-lease, tenancy
or right of occupation or third party right which has a material
adverse effect on the use or enjoyment of the relevant Business
Property for its current use.
(C) No notices have been received by the Business Seller shown in Part C
of Schedule 9 as the owner of the relevant Business Property and
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there are no actions, disputes or claims which would interfere with
the use of any Business Property for its current use.
(D) Except for Permitted Encumbrances, there is no mortgage, charge,
option, right of pre-emption (other than rights of pre-emption in
favour of local authorities referred to in Part B of Schedule 9) or
lien affecting any of the Business Properties.
(E) None of the Business Sellers has defaulted in the payment of rent
under any lease under which it holds or occupies any material
Business Property (save in the case of a bona fide dispute) or in
the performance of any of its obligations under any such lease which
default materially affects the use and enjoyment of the relevant
Business Property for its current use.
(F) None of the Business Sellers is party to an outstanding agreement to
dispose of a Business Property.
(G) Each Business Property has appurtenant to it all the material rights
necessary for that Business Property's continued use and enjoyment
for its current use.
20. COMPANY PROPERTIES
(A) The Company Properties are each legally and beneficially owned by
the Company and are the only land and buildings owned, used or
occupied in connection with the European Culinary Brands Business by
the Company.
(B) None of the Company Properties is subject to any sub-lease, tenancy,
right of occupation by any person or third party right (other than a
member of the Sellers' Group) which has a material adverse effect on
the use or enjoyment of the relevant Company Property for its
current use.
(C) No notices have been received by the Company and there are no
actions, disputes or claims which would affect the use of any
Company Property of which it is shown as the owner in Part D of
Schedule 9.
(D) Except for Permitted Encumbrances, there is no mortgage, charge
option, right of pre-emption (other than rights of pre-emption in
favour of the relevant local authority) or lien affecting any of the
Company Properties.
(E) The Company has not defaulted in the payment of rent under any lease
under which it holds or occupies any material Company Property (save
in the case of a bona fide dispute) or in the performance of any of
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its obligations under any such lease which default materially
affects the occupier's use and enjoyment of the relevant Company
Property for its current use.
(F) The Company is not party to any outstanding agreement to acquire or
dispose of (to the extent that the land or premises subject to the
disposal is required for the purposes of the European Culinary
Brands Business) land or premises or any interest therein.
(G) The Company has no actual or contingent obligation or liabilities as
tenant in relation to any leasehold property other than under its
existing title to the Company Properties.
(H) Each Company Property has appurtenant to it all the material rights
necessary for that Company Property's continued use and enjoyment
for its current use.
21. ENVIRONMENT
(A) Each Company and Business Seller (in relation to the Business and
the Business Assets) has complied with Environmental Laws at all
times during the period of five years prior to the date of this
Agreement (the "RELEVANT PERIOD") and, so far as the Sellers are
aware, there has been no non-compliance with Environmental Laws
prior to the Relevant Period which could reasonably be expected to
give rise to or is likely to give rise to a liability under
Environmental Laws.
(B) Each Company and Business Seller (in relation to the Business and
the Business Assets) has at all times during the Relevant Period
held all Environmental Permits which are necessary under
Environmental Laws for the purpose of carrying on the business of
that Company or the relevant part of the Business (as the case may
be) as at the date of this Agreement and each Company and/or
Business Seller (in relation to the Business) has at all times
during the Relevant Period been in compliance in all material
respects with all terms and conditions of all such Environmental
Permits.
(C) Neither the Company nor the Business Sellers (in relation to the
Business and the Business Assets) has received any notification of
any claim suit, proceeding, investigation or enquiry by any relevant
authority or from any other person in respect of any breach of any
Environmental Laws or pollution or contamination of soil or
groundwater which could reasonably be expected to give rise or is
likely to give rise to a liability under Environmental Law in force
on or before the date of this Agreement ("CURRENT ENVIRONMENTAL
Law") and, so far as the Sellers are aware, there are no
circumstances likely to give rise to any such claim, suit,
proceeding,
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investigation or inquiry by any relevant authority or person in relation
to Current Environmental Law.
(D) Neither the Company nor any Business Seller in relation to the
Business has assumed by contract with any person any liabilities or
obligations of such person relating to Environmental Matters in
respect of any of the Company Properties or Business Properties, or
any other properties formerly owned, leased, occupied or used by the
Company or Business Seller in relation to the Business or in respect
of any activities carried on or formerly carried on by the Company
or Business Seller in relation to the Business.
22. INTELLECTUAL PROPERTY
(A) Details of all registered Intellectual Property (and applications
therefor) owned by the Company and all registered Business IPR (and
applications therefor) are set out in Part 1 of Attachment 4 with
details of the relevant owner. All such Intellectual Property is
owned legally by the person shown in that Attachment and all
Business IPR is owned beneficially by a member of the Sellers' Group
and such rights are free of all charges, options, liens and material
licences other than those licences disclosed pursuant to
sub-paragraph (D).
(B) So far as the Sellers are aware, no member of the Sellers' Group has
received any written notification regarding any application or
intention by any third party (other than a trade ▇▇▇▇, patent or
design registry or similar authority in any territory in the
ordinary course of its business in relation to an application for
registration or grant (as the case may be)) to amend or challenge or
seek the removal or surrender from the relevant register of any of
the registrations and applications included in the Intellectual
Property owned by the Company and/or in the Business IPR.
(C) All renewal and other official registry fees due at the date of this
Agreement in respect of the registrations and applications referred
to in sub-paragraph (A) have been paid and will be paid until
Completion. Part 1 of Attachment 4 contains a complete and accurate
list of renewal dates for the next three months and, so far as the
Sellers are aware, a complete and accurate list of renewal dates for
the following nine months.
(D) Details of each licence of Intellectual Property or know-how granted
to or by any Company or Business Seller in relation to the Business
which, in each case, is material to the on-going operations of any
part of the European Culinary Brands Business in any territory
(other than licences of or in relation to software) are disclosed in
the Disclosure Letter.
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(E) Neither the Company nor any Business Seller in relation to the
Business nor, so far as the Sellers are aware, any other party is
in breach of any licence referred to in sub-paragraph (D).
(F) Neither the Sellers nor any of the Business Sellers nor the Company
has received any written notification or claim that, and are not
aware that, any of the activities of the European Culinary Brands
Business infringe any Intellectual Property or know-how owned by any
third party (other than Intellectual Property or know-how in or
relating to software) where such infringement would have a material
adverse effect on any part of the European Culinary Brands Business
in any territory.
(G) The Sellers have not received any written notification of, and are
not aware of, any unauthorised use or infringement by any person of
(i) any Business IPR, or (ii) any know-how proprietary to a member
of the Sellers' Group which is used exclusively in the European
Culinary Brands Business (other than Intellectual Property or
know-how in or relating to software), or (iii) any Intellectual
Property or know-how owned by the Company (other than Intellectual
Property or know-how in or relating to software), or (iv) any Shared
Know-how or Licensed Rights (other than Intellectual Property or
know-how in or relating to software) where such unauthorised use or
infringement of Shared Know-how or Licensed Rights would or is
likely to have a material adverse effect on any part of the European
Culinary Brands Business in any territory.
(H) The Sellers have not received any written notification of, and are
not aware of, any unauthorised use or infringement by any person
other than a member of the Sellers' Group of any Intellectual
Property or know-how which is used pursuant to a Licence In, where
such unauthorised use or infringement would, or is likely to, have a
material adverse effect on any part of the European Culinary Brands
Business in any territory.
(I) Where any member of the Sellers' Group has agreed pursuant to the
terms of this Agreement to grant a licence of Intellectual Property
to a member of the Purchaser's Group pursuant to the Intellectual
Property Licences or assign the Business IPR to the Purchaser
pursuant to the Intellectual Property Assignments, that member of
the Sellers' Group is either the registered proprietor of such
Intellectual Property or is entitled to grant such a licence or
assignment.
(I) So far as the Sellers are aware, none of the current operations of
the Company and the Business Sellers involve the unauthorised use in
relation to the Business of confidential information disclosed in
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circumstances which is likely to entitle a third party to make a
claim against the Company or a member of the Sellers' Group.
23. COMPETITION AND TRADE REGULATION LAW
(A) So far as the Sellers are aware, no Company is or has been a party
to any agreement, arrangement, concerted practice or course of
conduct which infringes Article 81 or 82 (formerly Articles 85 and
86 respectively) of the Treaty Establishing the European Community
or any other competition or similar legislation in any jurisdiction
in which the Company carries on business where such infringement is
likely to cause a material loss or liability to that Company.
(B) So far as the Sellers are aware, no Company is or has been a party
to any agreement or arrangement or been involved in any business
practice in respect of which an undertaking has been given by or an
order made against or in relation to it pursuant to any competition
or similar legislation in any jurisdiction in which it carries on
business (including (without limitation) Article 81 or 82 (formerly
Articles 85 and 86 respectively) of the Treaty Establishing the
European Community) where such undertaking or order is likely to
cause a material loss or liability to that Company.
(C) No Company is or has been a party to any agreement or arrangement or
been involved in any business practice in respect of which:
(i) any request for information, statement of objections or
similar matter has been received from any court, tribunal,
governmental, national or supra-national authority; or
(ii) an application for negative clearance or exemption has been
made to the European Commission.
24. EMPLOYMENT
(A) The number of Employees employed by each employer together with the
identity of that employer and details of aggregate monthly basic pay
of the Employees paid by each employer as at the day before the date
of this Agreement (unless otherwise stated) are set out in the
Disclosure letter and are accurate in all material respects as at
that date and the Employees in the list attached to the Disclosure
Letter and initialled by the parties constituted the Senior
Employees as at that date.
(B) So far as the Sellers are aware, there is no material dispute
relating to Employees between any of the Business Sellers or the
Company and any trade union, works council or other organisation
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formed for a similar purpose or any material number or category of
Employees existing, pending or threatened in writing to any of the
Business Sellers or the Company.
(C) Copies of all current material recognition, procedural, collective
or other agreements with any trade union (whether independent or
not), works council, European works council or any other body
representing the Employees or any of them have been disclosed to the
Purchaser, save for collective labour agreements which are
applicable industry wide and/or which relate also to companies not
connected with the Sellers Group or the Company.
(D) Summary details of the material terms and conditions of employment
of the Employees and the forms of the contracts of employment of the
Senior Employees are contained in the Disclosure Letter.
(E) Details of the terms of any share plan or share option plan
applicable to any Employees are contained in the Disclosure Letter.
(F) No proposal, assurance or commitment has been communicated to any
person regarding any change to his terms of employment or the
introduction, increase or improvement of any benefit which as at the
date of this Agreement has not been made effective.
(G) Each Business Seller and the Company has in relation to each of its
Employees (and former employees) complied in all material respect
with all legislation and terms and conditions of employment.
25. INSURANCES
(A) Details of the insurance policies in respect of which any member of
the Sellers' Group (in relation to the European Culinary Brands
Business) or the Company has an interest together with a list of all
outstanding claims under such policies are set out in the Disclosure
Letter.
(B) All premiums due and payable in respect of such insurances have been
paid.
(C) So far as the Sellers are aware, there are no circumstances
entitling any insurer to terminate cover under any such insurances.
Tax Warranties relating to the Company
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26. TAX RETURNS
The Company has duly and within appropriate time limits made or
submitted all proper Tax returns, notices and computations required
to be made and supplied all information required to be supplied in
the six years prior to the date of this Agreement for any Taxation
purpose and the information contained in any such Tax returns,
notices and computations were and remain complete and accurate in
all material respects and such Tax returns, notices and computations
were made on the proper basis and do not, and so far as the Sellers
are aware are not likely to, reveal any transactions which will be
the subject of any dispute with, or any enquiry raised by, any Tax
Authority.
27. TAX DISPUTES
There is no existing dispute between the Company and any Tax
Authority nor is any such dispute contemplated at the date of this
Agreement regarding liability or potential liability to any Tax
recoverable from the Company or regarding the availability of any
Relief to the Company.
28. TAX INVESTIGATIONS, VISITS AND AUDITS AND CONSENTS AND CLEARANCES
(A) The Company has not within the past six years suffered any
investigation, audit or visit by any Tax Authority (other than
visits of a routine nature) and neither of the Sellers nor the
Company is aware of such investigation, audit or visit planned for
the next 12 months or of any facts which might cause such an
investigation, audit or visit to be instituted.
(B) No transaction in respect of which any consent or clearance was
required or sought from any Tax Authority has been entered into or
carried out by the Company without such consent or clearance having
first been properly obtained and all information supplied to any Tax
Authority or other appropriate authority in connection with any such
consent or clearance fully and accurately disclosed all facts and
circumstances material to the giving of such consent or clearance.
Any transaction for which such consent or clearance was obtained has
been carried out only in accordance with the terms of such consent
or clearance and the application on which the consent or clearance
was based and at a time when such consent or clearance was valid and
effective. No facts or circumstances have arisen since any such
consent or clearance was obtained which would cause the consent or
clearance to become invalid or ineffective.
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29. TAX CONCESSIONS
The amount of Tax chargeable on the Company during any accounting
period ending on or within seven years of Completion has not been
increased or reduced by any concession, agreement or other formal or
informal arrangement with any Tax Authority (not being a concession,
agreement or arrangement available to companies generally).
30. TAX DEDUCTIONS AND WITHHOLDINGS
During the period of six years prior to the date of this Agreement,
the Company has complied with its obligations under any statutory
provisions requiring the deduction or withholding of or on account
of Tax from amounts paid by the Company, whether on its own behalf
or as agent, and has properly accounted for any Tax so deducted or
withheld to any Tax Authority (other than amounts which have not yet
become due to be paid).
30A. TAX RECORDS
The Company has maintained and obtained at all times complete,
correct and up-to-date records, invoices and other documents (as the
case may be) appropriate or requisite for the purposes of Tax and
has preserved such records, invoices and other documents in such
form and for such periods as are required by legislation relating to
Tax.
31. TAX NOTICES
The Company has not received any notice from any Tax Authority which
required or will require the Company to withhold Tax (or on account
of Tax) from any payment made or to be made before Completion (in
respect of which such withheld Tax has not been accounted for (or
will not prior to Completion be accounted for) in full to the
appropriate authority).
32. NON-DEDUCTIBLE PAYMENTS
The Company is not under any obligation to pay nor has it since the
Accounts Date paid or agreed to pay any amount (nor, so far as the
Sellers are aware, are there any circumstances which may lead to any
payment) which, in any such case, is not deductible either in
computing its income, profits or gains for the purposes of Tax or in
computing the Tax chargeable thereon.
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33. TAX GROUPING
(A) Other than as listed and described in reasonable detail in the
Disclosure Letter, the Company has not at any time in the last six
years had its Tax affairs dealt with on a consolidated basis and has
not entered into any Tax sharing arrangement (including without
limitation any arrangement under which Reliefs are surrendered or
claimed or agreed to be surrendered or claimed) in respect of the
profits, gains or losses of the Company with any other company.
(B) Except as set out in reasonable detail in the Disclosure Letter, the
Company is not, nor will it be, under any obligation to make or have
any entitlement to receive any payment in respect of any period
ending on or before Completion under the arrangements referred to in
paragraph (A) above.
34. COMPLETION
No charge to Tax will arise on the Company by virtue only of the
entering into of this Agreement and/or Completion.
35. RESIDENCE
The Company is resident for Tax purposes solely in the jurisdiction
specified in relation to it in Schedule 7 and during the last six
years the Company has not paid Tax on net income, profits or gains
to any Tax Authority in any country, other than that mentioned in
Schedule 7.
The Company is not liable for any Tax as the agent of any other
person or business and does not constitute a permanent establishment
of any other person, business or enterprise for any Tax purpose.
36. SECONDARY LIABILITY
So far as the Sellers are aware, the Company is not and will not
become liable to Tax chargeable primarily on any member of the
Sellers' Group.
37. TRANSFER PRICING
No transactions or arrangements involving the Company have taken
place within the last six years or are in existence which are such
that any provision relating to transfer pricing is likely to be
invoked by a Tax Authority.
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38. VALUE ADDED TAX
(A) The Company has complied with any obligation to register for the
purposes of VAT and has complied in all material respects with its
obligations under any Tax legislation relating to VAT.
(B) The Company has not made any exempt supplies in the current or three
preceding VAT years applicable to the Company.
(C) No election has been made or will before Completion be made by the
Company (pursuant to paragraph 2 of Schedule 10 to the Value Added
Tax ▇▇▇ ▇▇▇▇ of the United Kingdom or pursuant to any equivalent
legislation in any other jurisdiction) to waive any exemption for
the purposes of VAT as regards any land or property.
39. STAMP DUTY
(A) The Shares are:
(i) not registered in a register kept in the United Kingdom by or
on behalf of the Company; and
(ii) not paired with shares issued by a body corporate incorporated
in the United Kingdom.
(B) All documents in the possession or under the control of the Company
or to the production of which the Company is entitled which
establish or are necessary to establish the title of the Company to
any asset, or by virtue of which the Company has any right, have
been duly stamped and any applicable stamp duties or similar duties
or charges or any similar documentary or transfer taxes or duties in
respect of such documents have been duly accounted for and paid.
(C) All duties, fees and penalties payable in respect of the capital of
the Company (including any premium over nominal value at which any
share was issued) have been duly accounted for and paid, and there
are no circumstances under which any Relief obtained against payment
of any such amount could be withdrawn.
Tax Warranties relating to the Businesses
40. LIENS ON BUSINESS ASSETS
So far as the Sellers are aware, there are no liens for Taxes on any
of the Business Assets and no action, proceeding or investigation
has been instituted against any of the Business Sellers in which
there is
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a reasonable probability of an adverse determination that would result in
such a lien.
41. TAXES ON BUSINESS ASSETS
All Tax returns required to be filed with any Tax Authority prior to
the date of this Agreement, which are material in the context of the
Business and which relate to any of the Business Assets, have been
duly filed, and all proper notices, computations and information
which are material in the context of the Business have been duly
supplied, within any appropriate time limits and the information
contained in any such Tax returns, notices or computations was and
remains complete and accurate in all material respects and any such
Tax returns, notices or computations were made on the proper basis
and do not, and so far as the Sellers are aware are not likely to,
reveal any transactions which will be the subject of any dispute
with, or any enquiry raised by, any Tax Authority and all Taxes of
an amount which is material in the context of the Business shown to
be due and payable prior to the date of this Agreement on all such
Tax returns have been duly paid.
42. CAPITAL GOODS SCHEME
There are no Business Assets to which the provisions of Part XV of
the Value Added Tax Regulations 1995 (Adjustments to the Deduction
of Input Tax on Capital Items) of the United Kingdom or equivalent
legislation in any other jurisdiction apply.
43. OPTION TO ELECT TO TAX
No election has been made or will before Completion be made pursuant
to paragraph 2 of Schedule 10 to the Value Added Tax ▇▇▇ ▇▇▇▇ of the
United Kingdom or pursuant to any equivalent legislation in any
other jurisdiction to waive any exemption for the purposes of VAT in
relation to any of the Business Assets or any part of any of them.
43A VALUE ADDED TAX
(A) Each Business Seller has complied with and observed in all material
respects the terms of all relevant legislation, regulations, orders,
provisions, conditions and notices related to VAT arising in respect
of or in connection with the Business and the Business Assets.
(B) No Business Seller has made in the current or three preceding VAT
years any supplies in the ordinary course of the Business which are
exempt supplies for VAT purposes.
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43B STAMP DUTY/TRANSFER TAXES
All documents in the possession or under the control of the Sellers
or any Business Seller or to the production of which the Sellers or
any Business Seller is entitled which establish or are necessary to
establish the title of the Sellers or any Business Seller to any
Business Asset or under which the Sellers or any Business Seller has
any rights which relate to the Business have been duly stamped and
any applicable stamp duties or charges or any other similar
documentary or transfer taxes or duties in respect of such documents
have been duly accounted for and paid.
Warranties relating to Pensions
44. BENEFITS ONLY PROVIDED UNDER THE DISCLOSED SELLERS' GROUP PLANS
Other than under the Disclosed Sellers' Group Plans, there is no
arrangement (other than those under any public law, statute or
regulation or under an arrangement which is applicable industry-wide
and/or pursuant to a collective labour agreement) to which any
member of the Sellers' Group or the Company contributes or is liable
to contribute or under which it provides or is liable to provide any
Benefits (other than any arrangement which only provides death or
disability benefits secured by an insurance policy) for or in
respect of any of the Employees, or, in the case of the Company, any
former employees of the Company.
45. DISCRETIONARY BENEFITS
Details of all material established practices as to the exercise of
discretion in relation to Benefits in respect of Employees under:
(A) the Unilever Pension Fund (United Kingdom);
(B) the 1999 SERA (United Kingdom);
(C) the Progress Pension Fund (the Netherlands);
(D) the Pensioenfonds "Union" (Belgium); and
(E) the Unilever Superannuation (Ireland) Fund (Republic of
Ireland)
(together, the "PRINCIPAL FUNDS") are included in the Data Room.
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46. DOCUMENTATION
Copies of the following documents are included in the Data Room in
respect of Disclosed Sellers' Group Plans (other than those under
any public law, statute or regulation or under an arrangement which
is applicable industry-wide and/or pursuant to a collective labour
agreement) to which any member of the Sellers' Group in respect of
the Business or the Company has an obligation to contribute:
(a) all material agreements, deeds or declarations constituting
such Plans;
(b) all material announcements which have not been incorporated
into the documents referred to in paragraph (a) above;
(c) the most recent published audited accounts (if any) of each of
the Principal Funds; and
(d) the most recent published report on the actuarial valuation for
funding purposes of each of the Principal Funds.
47. LIABILITIES OF THE COMPANY IN RESPECT OF THE DISCLOSED SELLERS'
GROUP PLANS
Other than to pay any arrears of contribution and any arrears of
expense payments where such contributions and/or expense payments
are normally paid in arrears, so far as the Sellers are aware, no
Company has any other liability in respect of any act, omission or
event occurring prior to the date of this Agreement which would
oblige it to make any payment to any of the Disclosed Sellers' Group
Plans.
48. REGULATORY ENQUIRIES/LITIGATION
The Sellers have not received notification of any regulatory
enquiries (other than those of a routine nature) or litigation
threatened or pending (other than for routine claims for benefits)
in connection with the Disclosed Sellers' Group Plans and, so far as
the Sellers are aware, there are no facts or circumstances likely to
give rise to regulatory enquiry or litigation of that nature.
49. TAX APPROVAL
The Unilever Pension Fund in the United Kingdom is approved by the
Commissioners of Inland Revenue and, so far as the Sellers are
aware, there is no ground on which such approval may be withdrawn or
cease to apply.
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50. COMPLIANCE
(A) Each member of the Sellers' Group and the Company and, where
applicable, so far as the Sellers are aware, the trustees, managers
and administrators of the Disclosed Sellers' Group Plans, have
complied in all material respects with their respective obligations
under, and all applicable legislation, regulations (other than
Article 141 referred to below) relating to, the Disclosure Sellers'
Group Plans.
(B) So far as the Sellers are aware, the Disclosed Sellers' Group Plans
established in countries in the European Union comply in all
material respects with the requirements of Article 141 of the Treaty
of Rome, except to the extent that, in the United Kingdom, such
requirements may require the provision of guaranteed minimum
pensions on an equal basis as between men and women.
51. INTRODUCTION OR REMOVAL OF BENEFITS NOT YET IN EFFECT
No written undertaking or announcement has been given to any
Employee in respect of the introduction or removal of Benefits which
is not yet in effect as of the date of this Agreement.
52. INSOLVENCY
(A) No order has been made and no resolution has been passed for the
winding up of the Sellers, the Business Sellers or the Company or
for a provisional liquidator to be appointed in respect of any of
the Business Sellers or the Company and no petition has been
presented and no meeting has been convened for the purpose of
winding up any of the Business Sellers or the Company.
(B) No administration order has been made and no petition for such an
order has been presented in respect of any of the Business Sellers
or the Company.
(C) No receiver (which expression shall include an administrative
receiver) has been appointed in respect of any of the Business
Sellers or the Company or all or any of their assets.
(D) None of the Business Sellers or the Company is unable to pay its
debts within the meaning of section 123(1) of the Insolvency ▇▇▇
▇▇▇▇, or has generally stopped paying its debts as they fall due.
(E) No voluntary arrangement under section 1 of the Insolvency ▇▇▇ ▇▇▇▇
or composition in satisfaction of the debts of any member of the
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Business Sellers or the Company has been proposed, sanctioned or approved.
(F) No distress, distraint, charging order, garnishee order, execution
or other process has been levied or applied for in respect of the
whole or any part of any of the assets of any of the Sellers, the
Business Sellers or the Company.
(G) No event analogous to any of the foregoing has occurred in or
outside England.
53. INFORMATION TECHNOLOGY
(A) So far as the Sellers are aware, the IT Systems used in the Business
at the date of this Agreement are either owned by, or licensed or
leased to, the Company or a Business Seller. So far as the Sellers
are aware, neither the Company nor any Business Seller is in breach
of such licences or leases.
(B) The IT Systems and the manual and automated data used in the
Business at the date of this Agreement of the Company and the
Business Sellers are operated by the Company and/or the Business
Sellers.
(C) All material maintenance and support contracts for the IT Systems
used in the Business at the date of this Agreement are in the Data
Room. Neither the Company nor any Business Seller has received any
written notification that any of such contracts will not be renewed
when they expire on the same or substantially similar terms.
(D) There have been no breakdowns and operational problems in the
running of any of the IT Systems used in the Business (including,
without limitation, any such breakdowns and operational problems
caused by a virus or bug) in the six months prior to the date of
this Agreement which have had a material adverse effect on the
operation of any part of such IT Systems.
(E) So far as the Sellers are aware, there has been no breach in the
security or integrity of the IT Systems used in the Business in the
six months prior to the date of this Agreement which would have had
a material adverse effect on the operations of any part of such IT
Systems.
(F) Details of each software licence granted to or by any Company or
Business Seller in relation to the Business which, in each case, is
material to the on-going operations of any part of the European
Culinary Brands Business are disclosed in the Disclosure Letter.
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(G) Neither the Sellers nor any of the Business Sellers nor the Company
has received any written notification or claim that, and are not
aware that, any of the activities of the European Culinary Brands
Business infringe any Intellectual Property or know-how owned by any
third party in or relating to software where such infringement would
have a material adverse effect on any part of the European Culinary
Brands Business.
(H) The Sellers have not received any written notification of, and are
not aware of, any unauthorised use or infringement by any person of
any software proprietary to a member of the Sellers' Group which is
used exclusively in the European Culinary Brands Business or of any
software owned by the Company.
54. FOOD LAW
The Business Sellers (in relation to the Business) and the Company
have complied with all applicable laws and regulations having the
force of law in the conduct of the operations of the Business
Sellers (in relation to the Business) or the Company (as the case
may be) in relation to the manufacture, supply and sale of products
where non-compliance would lead to a loss or liability in excess of
E100,000.
55. DISSAY CLOSURE COSTS
The Company has no outstanding financial or cost commitments or
other liabilities as a result of the integration of the production
lines from the plant at Dissay into the factory at Utrecht and, so
far as the Sellers are aware, there are no circumstances which might
give rise to any such financial or cost commitments or any other
liability of the Company in connection with the integration of the
production lines from the plant at Dissay into the factory at
Utrecht.
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SCHEDULE 4
(LIMITATIONS ON LIABILITY)
1. LIMITATION ON QUANTUM AND GENERAL
(A) Neither the Purchaser nor any Designated Purchaser shall be entitled
in any event to damages or other payment in respect of any claim or
claims under any of the Warranties in respect of any individual
claim (or, in the case of claims under Warranties 24(A) to (H), one
or more claims arising from the same factual circumstances which in
aggregate are):
(i) for less than E100,000; or
(ii) unless and until the aggregate amount of all individual claims
(taking no account of any claims for less than E100,000)
exceeds 1.5 per cent. of the Debt Free Price, in which event
the Sellers shall be liable for the whole amount of such
claims and not merely the excess.
(B) The total aggregate liability of the Sellers and the Business
Sellers and the Share Seller under the Warranties, the Tax Covenant
and any warranties implied by law to the extent not effectively
excluded by this Agreement shall not in any event exceed two-thirds
of the Final Cash Consideration.
(C) Neither the Purchaser nor any Designated Purchaser shall be entitled
to claim for any consequential loss (including loss of profit) or
punitive damages in respect of a breach of the Warranties.
(D) The provisions of this Schedule shall operate to limit the liability
of the Sellers and the Share Seller under the Tax Covenant in so far
as any provision in this Schedule is expressed to be applicable
thereto and the provisions of the Tax Covenant shall further operate
to limit the liability of the Sellers and the Share Seller in
respect of any claim thereunder.
(E) Each provision of this Schedule shall be read and construed without
prejudice to each of the other provisions of this Schedule.
2. TIME LIMITS FOR BRINGING CLAIMS
No claim shall be brought against the Sellers or the Business
Sellers or the Share Seller in respect of any of the Warranties or
the Tax Covenant unless the Purchaser shall have given to the
Sellers written notice of such claim specifying (in reasonable
detail) the matter which gives rise to the claim, the nature of the
claim and the amount
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claimed in respect thereof (detailing, so far as reasonably practicable
and without prejudice to the claim of the Purchaser the Purchaser's
calculation of the loss thereby alleged to have been suffered by it or the
relevant member of the Purchaser's Group):
(i) subject to sub-paragraphs (ii) and (iii), on or before the
date falling 18 months after the Completion Date; or
(ii) in respect of any claims under the Tax Warranties or the Tax
Covenant (other than claims of the type described in
sub-paragraph (iii)), on or before the seventh anniversary of
the Completion Date; or
(iii) in respect of any claims under the Tax Warranties relating to
any part of the European Culinary Brands Business in France or
otherwise subject to French Taxation made following a
reassessment to Tax by any French Tax Authority, on or before
the end of 2004 save that, in the case of stamp and
registration duties the liability to which arises as a result
of French law, the relevant date shall be the eleventh
anniversary of the date of this Agreement,
PROVIDED THAT the liability of the Sellers and the Business Sellers
and the Share Seller in respect of such claim shall absolutely
terminate (if such claim has not been previously satisfied, settled
or withdrawn) if legal proceedings in respect of such claim shall
not have been commenced within nine months of the date referred to
in paragraph (i), (ii) or (iii) above and for this purpose
proceedings shall not be deemed to have been commenced unless they
shall have been properly issued and validly served upon the Sellers
or the relevant Business Sellers or the Share Seller (as the case
may be).
3. CONDUCT OF LITIGATION
(A) Upon the Purchaser or any member of the Purchaser's Group becoming
aware of any claim, action or demand against it which is likely to
give rise to any claim in respect of any of the Warranties, the
Purchaser shall:
(i) as soon as reasonably practicable notify the Sellers, save
that, subject and without prejudice to paragraph 2, any
failure to give such notice shall not preclude the Purchaser
from making the relevant claim;
(ii) without prejudice to its right to make a claim against the
Sellers under the Warranties, consult as fully as is
reasonably
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practicable with the Sellers as regards the conduct of any
proceedings arising out of such claim;
(iii) if such claim, action or demand is for or in respect of an
amount in excess of 2 per cent. of the Debt Free Price,
without prejudice to the right of the Purchaser on its own
behalf and on behalf of any Designated Purchaser to make a
claim against the Sellers or any Business Seller or the Share
Seller for breach of any of the Warranties, subject to the
Sellers indemnifying the Purchaser and any member of the
Purchaser's Group against any loss, liability and expenses,
cost, damage or expense which may be incurred thereby
(including the costs and expenses charged by its legal and
other professional advisers), take such action and give such
information and access to personnel, premises, documents and
records to the Sellers and their legal advisers and
accountants as the Sellers may reasonably request and (subject
to indemnification of the Purchaser and members of the
Purchaser's Group as described above) the Sellers shall be
entitled to require any member of the Purchaser's Group to
take such action as is, in the reasonable opinion of the
Purchaser, reasonable and, subject to the Sellers agreeing to
be bound by an obligation of confidentiality, give such
information and assistance as the Sellers may reasonably
request in order to avoid, dispute, resist, mitigate, settle,
compromise, defend or appeal any claim in respect thereof or
adjudication with respect thereto (subject to the Purchaser
being entitled to employ its own legal and other professional
advisers);
(iv) in the case of a claim, action or demand of the type referred
to in sub-paragraph (iii), be entitled to participate in the
defence of the relevant claim, action or demand and to employ
separate counsel to represent it at its own expense PROVIDED
THAT the person who has elected to grant an indemnity under
sub-paragraph (iii) shall control the defence of the relevant
claim, action or demand;
(v) in the case of a claim, action or demand of the type referred
to in sub-paragraph (iii), make no admission of liability,
agreement, settlement or compromise with any third party in
relation to any such claim or adjudication without the prior
written consent of the Sellers (such consent not to be
unreasonably withheld); and
(vi) without prejudice to its right to make a claim against the
Sellers or the Business Sellers or the Share Seller under the
Warranties, take all reasonable action to mitigate any loss
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suffered by it or any member of the Purchaser's Group in
respect of which a claim could be made under the Warranties
PROVIDED THAT no member of the Purchaser's Group shall be
required to utilise any Relief arising in respect of a period
commencing after Completion or any event occurring after
Completion or to arrange its Tax affairs in any particular
manner by this sub-paragraph (vi),
PROVIDED THAT if a claim arises under the Tax Warranties and the
same matter also gives rise to a claim under the Tax Covenant,
clause 8 of the Tax Covenant shall apply to the conduct of any
proceedings rather than the provisions of paragraphs 3(A)(ii) to
(vi) above.
(B) Notwithstanding the foregoing, the Sellers shall not be entitled to
assume the defence of any claim, action or demand of a third party
(and shall be liable for the reasonable expenses (including legal
and other professional expenses) incurred by the Purchaser or
relevant member or members of the Purchaser's Group in defending
such claim, action or demand) if such claim, action or demand seeks
any relief other than damages (including any order, injunction or
other equitable relief) against the Purchaser or relevant member or
members of the Purchaser's Group which the Purchaser reasonably
determines cannot be separated from any related claim for damages.
If such claim for other relief can be separated from the claim for
damages, the Sellers shall be entitled to assume the defence of the
claim for damages.
(C) The Sellers shall be entitled at any stage and at their absolute
discretion to settle any such third party assessment or claim.
4. NO LIABILITY IF LOSS IS OTHERWISE COMPENSATED FOR
(A) No liability shall attach to the Sellers, the Business Sellers, the
Share Seller or any of them by reason of any breach of any of the
Warranties to the extent that the same loss has been recovered by
the Purchaser or any other member of the Purchaser's Group under any
other Warranty or term of this Agreement or any other document
referred to herein or under the Tax Covenant and accordingly the
Purchaser and any Designated Purchaser may only recover once in
respect of the same loss.
(B) The Sellers, the Business Sellers and the Share Seller shall not be
liable for breach of any of the Warranties to the extent that the
loss in respect of the claim has been or is made good or is
otherwise compensated for without cost to the Purchaser or any other
member of the Purchaser's Group.
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(C) For the avoidance of doubt, in calculating the liability of the
Sellers, the Business Sellers and the Share Seller for any breach of
the Warranties there shall be taken into account the amount by which
any Taxation for which the Purchaser, any person which the Purchaser
procures to purchase the Business Assets or the Company is now or in
the future accountable or liable to be assessed is reduced or
extinguished as a result of the matter giving rise to such liability.
5. RECOVERY FROM INSURERS AND OTHER THIRD PARTIES
(A) Where the Purchaser or any member of the Purchaser's Group is at any
time entitled to recover from some other person, the Purchaser
shall, and shall procure that the member of the Purchaser's Group
concerned shall, take all reasonable steps to enforce such recovery
PROVIDED THAT the Purchaser or the relevant member of the
Purchaser's Group shall not be required to have recovered any sum
from any third party prior to bringing a claim against the Sellers
or any Business Seller and the Sellers or any Business Seller making
any payment which is due in respect of any such claim.
(B) If any member of the Sellers' Group pays at any time to the
Purchaser or any member of the Purchaser's Group an amount pursuant
to a claim which has been admitted by the Sellers or any Business
Seller or the Share Seller or proven by a final judgment in a court
of competent jurisdiction in respect of the Warranties and the
Purchaser or relevant member of the Purchaser's Group subsequently
recovers from some other person (including, without limitation,
under any policy of insurance) any sum which is referable to any
matter giving rise to such claim, the Purchaser shall, and shall
procure that the relevant member of the Purchaser's Group shall,
repay to the relevant member of the Sellers' Group the lesser of (i)
the amount paid by the relevant member(s) of the Sellers' Group (or
the relevant one of them) to the Purchaser or other member of the
Purchaser's Group and (ii) the sum (including interest (if any) less
any Tax chargeable in respect of the sum recovered or the interest)
recovered from such other person, taking account of all costs,
charges, expenses and Taxation incurred thereon by the Purchaser or
any other member of the Purchaser's Group recovering that sum.
6. ACTS OF PURCHASER
(A) No claim shall lie against the Sellers, the Business Sellers, the
Share Seller or any of them under or in relation to the Warranties
to the extent that such claim is attributable to:
(i) any voluntary act, omission, transaction or arrangement
carried out at the request of or with the consent (in either
case, in
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writing) of the Purchaser or of a member of the Purchaser's Group
other than the Company before, at or after Completion or of the
Company after Completion or under the terms of this Agreement or any
other agreement contemplated by it (other than a liability to Tax
arising as a result of the entering into and/or the Completion of
this Agreement); and
(ii) any voluntary act, omission, transaction or arrangement
carried out by the Purchaser or by a member of the Purchaser's
Group on or after Completion unless such act, omission,
transaction or arrangement was carried out or made by the
Purchaser or any other member of the Purchaser' Group in the
ordinary course of carrying on the European Culinary Brands
Business after Completion or pursuant to any legally binding
commitment entered into by the Company on or prior to
Completion.
(B) The Sellers, the Business Sellers and the Share Seller shall not be
liable for any breach of any Warranty which would not have arisen
but for any reorganisation or change in ownership of any member of
the Purchaser's Group or of any assets of any such member after, but
not at, Completion or change in any accounting basis on which any
member of the Purchaser's Group values its assets or any accounting
basis, method, policy or practice of any member of the Purchaser's
Group which is different from that adopted or used in the
preparation of the Financial Information or the Accounts after
Completion other than, where the member of the Purchaser's Group is
the Company, a change which is certified by the auditors for the
time being of the Company to be necessary because the basis, method,
policy or practice of accounting of the Company at the date of
Completion is not in accordance with any published accounting
practices or principles then current.
7. THE COMPLETION STOCKS STATEMENT
No matter shall be the subject of a claim under the Warranties to
the extent that facts or circumstances which would, but for this
paragraph 7, allow such a claim to be made, have been taken into
account (by way of a provision, allowance, reserve or otherwise) in
the valuation of the Stocks or any of them in the Completion Stocks
Statement.
8. RETROSPECTIVE LEGISLATION
No liability shall arise in respect of any breach of any of the
Warranties to the extent that liability for such breach occurs or is
increased as a result of any change in or introduction of any
legislation announced, or if not announced in advance of being made,
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made, after the date of this Agreement with retrospective effect or
as a result of the withdrawal of any extra-statutory concession or
other formal agreement or arrangement currently granted by or made
with any governmental authority or Tax Authority or as a result of
any change after the date of this Agreement of any generally
accepted interpretation or application of any legislation or in the
enforcement policy or published practice of the relevant authorities.
9. TAXATION
(A) Without prejudice to the generality of paragraph 8, the Sellers and
the Business Sellers and the Share Seller shall not be liable in any
event in respect of any breach of the Warranties if such breach or
claim would not have occurred or arisen but for any change in the
basis of, method of calculation of, or increase in the rate or rates
of Taxation or changes in the published practice of any Tax
Authority announced (or if not so announced in advance, being made)
after the date of this Agreement but with retrospective effect
(judged as when so announced or made) or the withdrawal of any
extra-statutory concession currently granted by any Tax Authority.
(B) The Sellers and the Business Sellers and the Share Seller shall not
be liable for any claim to the extent that it arises wholly or
partly out of or is increased by virtue of a voluntary disclaimer by
the Company after Completion of any claim for Relief made by it
prior to Completion (other than any such disclaimer made at the
written request of or with the written consent of the Sellers).
(C) The Sellers and the Business Sellers and the Share Seller shall not
be liable in respect of any claims in respect of any breach of the
Tax Warranties relating to the Shares (a "TAX CLAIM") if and to the
extent that, without prejudice to the generality of sub-paragraph
(B), such Tax Claim arises or is increased by virtue of a voluntary
disclaimer by the Company after Completion of any claim for Relief
made by the Company prior to Completion (other than any such
disclaimer made at the written request or with the written consent
of the Sellers).
(D) The Sellers and the Business Sellers and the Share Seller shall not
be liable in respect of any breach of the Warranties if such
liability would have been excluded under the provisions of clause 3
of the Tax Covenant had such liability been treated as a Tax
Liability (as defined in the Tax Covenant) for the purposes of the
Tax Covenant.
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10. DISCLOSURE
Neither the Purchaser nor the Designated Purchaser shall be entitled
to claim that any fact, matter or circumstance causes any of the
Warranties to be breached if fairly disclosed in the Disclosure
Letter, in any document referred to in the Disclosure Letter, in any
document delivered with the Disclosure Letter or in any document in
the Data Room.
11. APPORTIONMENTS OF CONSIDERATION
For the avoidance of doubt, it is understood and agreed that neither
the Sellers nor any Business Seller nor the Share Seller shall be
liable for the accuracy of the valuations of assets and liabilities
in Schedule 8.
12. CLAIM TO BE REDUCTION OF FINAL CASH CONSIDERATION
Any payment made by the Sellers or any other person in respect of
any claim under the Warranties or the Tax Covenant shall be made (to
the greatest extent possible) by way of repayment of the Final Cash
Consideration payable by the Purchaser (on behalf of the relevant
Designated Purchaser) under this Agreement to the Sellers (on behalf
of the Share Seller or Business Sellers) and allocable to the
greatest extent possible to the relevant Business Asset or Shares to
which the claim relates.
13. NON-EU INTELLECTUAL PROPERTY AND KNOW-HOW
Without prejudice to any other provision of this Schedule, neither
the Purchaser nor any Designated Purchaser shall be entitled to
bring any claim for breach of any Warranty against the Sellers, the
Business Sellers or the Share Seller or any of them in respect of
matters relating directly to any Qualified IP Warranty Rights other
than to the extent that the Sellers are aware of the facts or
circumstances which would, but for this paragraph 13, allow the
Purchaser or any Designated Purchaser to do so.
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SCHEDULE 5
(COMPLETION STATEMENT IN RESPECT OF STOCKS)
PART A - PREPARATION OF COMPLETION STOCKS STATEMENT
1. The Completion Stocks Statement shall:
(i) be based on the books and records of the relevant Business
Sellers and Company;
(ii) consist of statements the Company or each relevant part of the
Business conducted by a Business Seller in the format of
Attachment 7 comprising a statement of the Completion Stocks
Amount as at midnight (applicable local time) on the
Completion Date in the currencies in which that part of the
Completion Stocks Amount attributable to the Company or that
Business Seller is reported as at the date of this Agreement
in the books of the relevant Company or Business Seller;
(iii) subject to sub-paragraphs (i) and (ii), be prepared on the
basis and in accordance with the principles, policies,
procedures, methods and practices of accounting set out in the
Unilever Accounting Policy Manual; and
(iv) subject to sub-paragraphs (ii) and (iii), be prepared in
accordance with generally accepted accounting policies as
adopted in the United Kingdom.
2. In the preparation of the Completion Stocks Statement, the
Completion Stocks Amount shall be expressed in the currencies in
which the said Completion Stocks Amount is reported as at the date
of this Agreement in the books of the Company or Business Sellers.
In determining the Completion Stocks Amount, the aggregate amounts
for each of the Company or Business Sellers expressed in currencies
other than Euros shall be converted into Euros at the Exchange Rate.
3. The Sellers shall deliver, or procure the delivery to the Purchaser
by the date falling 60 Business Days after the Completion Date, of a
draft Completion Stocks Statement (the "DRAFT COMPLETION STOCKS
STATEMENT").
4. For the purposes of preparing the Draft Completion Stocks Statement,
after Completion the Purchaser shall, and shall procure that each
other member of the Purchaser's Group shall, give the Sellers and
the Sellers' Accountants reasonable access at reasonable times to
all books and records in their respective possession or control
relating to the European Culinary Brands Business on or prior to the
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Completion Date and generally shall provide the Sellers with such
other information and assistance as the Sellers may reasonably
request (including the reasonable assistance of financial personnel
who were employed in the European Culinary Brands Business at any
time before Completion) for the purposes of preparing the Draft
Completion Stocks Statement. Management of the European Culinary
Brands Business shall act in good faith in connection with all
matters involving the Completion Stocks Statement. The fees, costs
and expenses of the Sellers' Accountants shall be paid by the
Sellers.
5. The Purchaser shall have a period of 30 Business Days (the "REVIEW
PERIOD") after the date of delivery to it by or on behalf of the
Sellers of the Draft Completion Stocks Statement to review, in
conjunction with the Purchaser's Accountants, the Draft Completion
Stocks Statement and to present to the Sellers in writing any
objections (stating in reasonable detail, including specific
amounts, the matters in dispute) it may have to the Draft Completion
Stocks Statement. The only grounds upon which the Purchaser shall
be entitled to object to the Draft Completion Stocks Statement are
mathematical errors in the computation of the Completion Stocks
Amount or that it has not been prepared in accordance with this
Schedule and no objection shall be raised which would not, if
successful, lead to an amendment to the Completion Stocks Amount in
accordance with paragraph 8. Any such objections must be
accompanied by a recalculation of each amount in the Draft
Completion Stocks Statement based upon such objections and shall be
accompanied by reasonable evidence supporting each objection.
6. For the purposes of enabling the Purchaser and the Purchaser's
Accountants to present any such written objections as are referred
to in paragraph 5, the Sellers shall, following the presentation of
the Draft Completion Stocks Statement, give the Purchaser and the
Purchaser's Accountants reasonable access at reasonable times to all
books and records in their possession or control after the
Completion Date relating to the European Culinary Brands Business
and generally shall provide the Purchaser with such other
information (including working papers) as the Purchaser may
reasonably request PROVIDED THAT the Purchaser and the Purchaser's
Accountants shall not be entitled to any such access or information
which goes beyond that reasonably necessary to determine whether the
Draft Completion Stocks Statement has been prepared in accordance
with the provisions of this Schedule. The fees, costs and expenses
of the Purchaser's Accountants shall be paid by the Purchaser.
7. If and to the extent that no such written objections as are referred
to in paragraph 5 are properly presented to the Sellers by the end
of
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the Review Period then the Draft Completion Stocks Statement
shall, as between the Purchaser and the Sellers, be deemed to have
been accepted and approved by the Purchaser and the Sellers and the
Draft Completion Stocks Statement shall be final and binding on the
Purchaser and the Sellers and shall constitute the "COMPLETION
STOCKS STATEMENT", or the relevant part of the Completion Stocks
Statement, for all purposes of this Agreement.
8. If and to the extent that any such written objections as are referred to
in paragraph 5 are properly presented to the Sellers by the end of
the Review Period then the Sellers and the Purchaser shall attempt to
resolve the matters in dispute between them in good faith negotiations. To
facilitate the Sellers' review of any such written objections, the
Purchaser shall provide the Sellers and the Sellers' Accountants with such
information (including working papers) as the Sellers may reasonably
require for the purpose of the review. If there are any such matters in
dispute between the Purchaser and the Sellers which have not been resolved
in good faith negotiations within a period of 30 Business Days after the
end of the Review Period, then the specific matters in dispute shall be
referred for determination to an Expert who shall be instructed to notify
the Sellers and the Purchaser of his determination within 20 Business Days
of such referral. If the Purchaser and the Sellers resolve all matters in
dispute in relation to the Draft Completion Stocks Statement, then the
Draft Completion Stocks Statement shall, as between the Purchaser and the
Sellers, be deemed to have been accepted and approved by the Purchaser and
the Sellers and the Draft Completion Stocks Statement shall be final and
binding on the Purchaser and the Sellers and shall constitute the
"COMPLETION STOCKS STATEMENT", or the relevant part of the Completion
Stocks Statement, for all purposes of this Agreement.
9. The Sellers shall, and shall procure that each other member of the
Sellers' Group shall, and the Purchaser shall and shall procure that
each other member of the Purchaser's Group shall, give the Expert
reasonable access at reasonable times to all books and records in
their respective possession or control relating to the European
Culinary Brands Business and generally shall provide the Expert with
such other information and assistance as the Expert may reasonably
require. In making his determination, the Expert shall act as
expert and not as arbitrator and shall provide a reasoned opinion
for his determination and the Draft Completion Stocks Statement as
amended by the Expert shall, as between the Sellers and the
Purchaser and in the absence of manifest error by the Expert, be
deemed to have been accepted and approved by the Sellers and the
Purchaser, shall be final and binding on the Sellers and the
Purchaser and shall constitute the "COMPLETION STOCKS STATEMENT" for
all purposes of this
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Agreement. Notwithstanding the foregoing, any amendment by the Expert of
any amount set out in the Completion Stocks Statement shall be within the
range for such amount indicated by the Draft Completion Stocks Statement
and any amendment to the Draft Completion Stocks Statement made pursuant
to paragraph 8. The fees and costs of the Expert shall be paid as to 50
per cent. by the Purchaser and 50 per cent. by the Sellers. The Expert
may, if he decides it is necessary or desirable to do so in his absolute
discretion, refer any interpretational matter which relates to any dispute
to a Leading Counsel approved by the Sellers and the Purchaser and the
terms of appointment of the Expert shall allow him to make such reference.
10. Notwithstanding the foregoing paragraphs of this Schedule, where the
value of the Stock in any relevant country as shown in the
Completion Stocks Statement as finally determined or agreed in
accordance with this Schedule differs by E100,000 or less from the
value of that Stock as set out in the original Draft Completion
Stocks Statement delivered pursuant to paragraph 3 then the value
set out against the relevant country in the original Draft
Completion Stocks Statement delivered pursuant to paragraph 3 shall
be used for the purpose of determining the Completion Stocks Amount.
PART B - CONSTITUENTS OF THE TARGET STOCKS AMOUNT
-------------------------------------------------
E MILLION
---------
Belgium E1.6
Denmark E0.1
Finland E0.6
France E2.9
Germany E1.4
Republic of Ireland E0.7
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇.▇
▇▇▇▇▇▇▇▇ ▇▇.▇
▇▇▇▇▇▇ ▇▇.▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ E12.0
TOTAL: E21.9
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SCHEDULE 6
(BUSINESS SELLERS AND SHARE SELLER)
PART A - BUSINESS SELLERS
(1) (2)
LOCATION OF BUSINESS ASSETS BUSINESS SELLER(S)
--------------------------- ------------------
Belgium Unilever Belgium N.V.
P. A. B. Benelux N.V.
Denmark Van den ▇▇▇▇▇ Foods AB
Unilever Danmark A/S
Finland Suomen Unilever Oy
France Fralib Sourcing Unit S.A.
Bestfoods France S.A.
Generale Condimentaire S.A.S.
Germany Union Deutsche Lebensmittelwerke GmbH
Republic of Ireland W. & ▇. ▇▇▇▇▇▇▇▇▇ Limited
▇▇▇▇▇▇ ▇▇▇▇ Oxo (Ireland) Limited
The Netherlands Van den ▇▇▇▇▇ Nederland B.V.
Portugal ▇▇▇▇▇ Bestfoods Portugal Produtos Alimentares, S.A.;
Fima/VG - Distribuicao de Produtos Alimentares Limitada.
Sweden Van den ▇▇▇▇▇ Foods AB
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(1) (2)
LOCATION OF BUSINESS ASSETS BUSINESS SELLER(S)
--------------------------- ------------------
AB Bjare Industrier
Vato Produkter AB
United Kingdom Van den ▇▇▇▇▇ Foods Limited
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PART B - SHARE SELLER AND OWNERSHIP OF THE SHARES
(1) (2) (3) (4) (5)
JURISDICTION OF NAME OF COMPANY NUMBER AND CLASS OF REGISTERED HOLDER(S) SHARE SELLER
INCORPORATION OF SHARES TO BE SOLD
COMPANY
The Netherlands Royco Voedingmiddelenfabrieken B.V. 480 ordinary shares Unilever Nederland Unilever Nederland
of Fl.1,000 each B.V. B.V.
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SCHEDULE 7
(BASIC INFORMATION CONCERNING THE COMPANY)
ROYCO VOEDINGMIDDELENFABRIEKEN B.V.
Place of incorporation: Utrecht, the Netherlands
Date of incorporation: 11th March, 1942 (incorporated as an N.V.; re-registered as a B.V. on 26th October, 1972)
Registered number: 30014087 at the Chamber of Commerce in Utrecht
Address of registered office: ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Issued share capital: Fl. 480,000, comprising 480 ordinary shares of Fl. 1,000 each
Directors: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 't Hooft
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ van der Waaij
Accounting reference date: 31st December
Auditors: PricewaterhouseCoopers
Marten ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Tax residence: The Netherlands
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SCHEDULE 8
(ALLOCATION OF FINAL CASH CONSIDERATION)
PART A - GENERAL PROVISIONS
1. The Final Cash Consideration and the amount of the Assumed Liabilities
shall be apportioned between the Business Assets, the Shares and the
licences granted in Clauses 3(G)(iii), 10(K) and 20(D) and between
categories of Business Asset, Shares and those licences on the basis
set out in this Schedule and such apportionment shall be adopted by the
Sellers and the Purchaser for all purposes (including Tax) subject to
any further adjustment in accordance with paragraph 12 of Schedule 4
and any other adjustment provisions.
2. After the Completion Stocks Statement has been prepared in accordance
with Schedule 5, the Final Cash Consideration shall be apportioned
between the Business Assets and the Shares on the following basis:
(i) if the value of any Stock comprised in the Completion Stocks
Statement expressed in Euros is greater or less than the value
provisionally apportioned to such Stock for the purposes of
compiling Part B of this Schedule expressed in Euros, then the
value provisionally apportioned pursuant to paragraph 3 above
to such Stock shall be increased or reduced (as the case may
be) by the difference; and
(ii) if the aggregate value of the items comprised in the
Completion Stocks Statement in relation to the Company
expressed in Euros is greater or less than the aggregate value
provisionally apportioned to such items for the purposes of
compiling Part B of this Schedule expressed in Euros, then the
value provisionally apportioned pursuant to paragraph 3 above
to the Shares in the Company shall be increased or reduced (as
the case may be) by the difference.
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PART B - ALLOCATION OF THE DEBT FREE PRICE
[This attachment has been omitted pursuant to Section 601(b)(2) of
Regulation S-K. The registrant agrees to file a copy of the attachment
upon the request of the Securities and Exchange Commission.]
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SCHEDULE 9
(PROPERTIES)
PART A - GENERAL PROPERTY PROVISIONS
1. MATTERS TO WHICH THE SALE IS SUBJECT
The Business Properties are sold subject to and (where appropriate)
with the benefit of the following matters:
(i) all local land charges;
(ii) all notices served and orders, demands, proposals or
requirements made by any local or other competent authority;
(iii) all exceptions and reservations of whatever nature, all rights
of way, water, light, air or other rights, easements,
quasi-easements, wayleaves (whether constituted in the title
deeds or otherwise) and third party rights of possession or
occupation;
(iv) in the case of a Business Property which is leasehold, the
covenants, obligations and conditions on the part of the
lessee contained in the Lease; and
(v) in the case of a Business Property which is affected by any
Letting Documents the covenants, obligations and conditions on
the part of the relevant Business Seller in the Letting
Documents and the other terms and conditions therein.
2. SALE SUBJECT TO LETTING DOCUMENTS
Each Business Property is sold subject to any Letting Documents but
otherwise with vacant possession.
3. TITLE
Without prejudice to the terms of Schedule 3 or to the terms of the
Disclosure Letter, the Purchaser shall be deemed to be purchasing with
full knowledge of the contents of all deeds and other documents of
title relating to the Business Properties and shall raise no
requisition or object in relation to any such title save in respect of
any matters revealed by pre-Completion searches.
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4. PROPERTY CONSENTS
(A) This paragraph and paragraph 5 apply to those Business Properties in
relation to which a Property Consent is required for the transfer or
assignment to the Purchaser and remains to be obtained as at the
Completion Date (including any Business Property held in whole or in
part under a lease containing an absolute prohibition on assignment).
(B) The relevant Business Seller shall use its reasonable endeavours at its
own expense to obtain the Property Consents. The Purchaser shall
provide to any landlord lawfully requiring the same a direct covenant
by the Purchaser with the landlord to observe and perform the terms of
the relevant lease together with a sufficient reasonable guarantee or
other reasonable security for such obligation on such terms and in such
form as the relevant landlord is lawfully entitled to require.
(C) The Purchaser shall supply all references and other evidence and
information reasonably and lawfully required by any landlord or any
other third party in order to obtain the Property Consents.
(D) The relevant Business Seller shall pay the professional fees of any
landlord and its advisers incurred in connection with all applications
for the Property Consents.
(E) If any Property Consent shall not have been obtained by nine months
after Completion the relevant Business Seller shall in relation to each
Business Property so affected:
(i) at its own expense make and diligently pursue an application
to a Court of competent jurisdiction for a declaration that
the Property Consent is being withheld unreasonably (where the
relevant landlord is not entitled to withhold consent in such
a manner) and if necessary pursue an appeal on a decision that
consent is not being withheld unreasonably unless either the
Business Seller and the Purchaser agree that such an
application or appeal as applicable has no realistic prospect
of success or the Business Seller obtains advice from leading
counsel to the same effect; and
(ii) at its own expense apply to the relevant landlord for a
Property Approval to an underlease to the Purchaser for a term
equal to the residue of the term of the relevant lease (less
three days) and otherwise on the same terms of such lease.
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5. DELAYED LEGAL COMPLETION
(A) If a Property Consent has not been obtained by Completion in relation
to a Business Property then the date for legal completion of the sale
and purchase of the relevant Business Property shall be postponed to
the tenth Business Day after the earlier of:
(i) the date on which the Property Consent is obtained;
(ii) the expiration of the period for the lodging of an appeal
against a decision of a Court of competent jurisdiction that
the Property Consent is being unreasonably withheld without
such appeal being lodged;
(iii) the Purchaser (if it so elects) giving notice that it wishes
to complete the Property Transfer notwithstanding the
non-issue of the Property Consent; and
(iv) in respect of the Business Properties to which paragraph 5(E)
does not apply the day two years after the Completion Date.
(B) Pending legal completion and with effect from Completion the relevant
Business Seller will procure that in relation to any relevant Business
Property:
(i) the Purchaser is permitted (with all persons authorised by it)
to have the unrestricted use and occupation of either the
whole of the Business Property or such parts of the Business
Property as are not subject to any Leases;
(ii) no contract is entered into disposing of any interest in or
granting any right over or varying or surrendering the lease
of the Business Property;
(iii) if the relevant Business Property is leasehold, and subject to
being put in funds by the Purchaser, the rents, service
charges, outgoings and other sums reserved by the relevant
lease are paid;
(iv) no steps are taken in relation to any rent review pursuant to
the lease of a Business Property without the consent of the
Purchaser (such consent not to be unreasonably withheld);
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(v) a copy of any notice received in respect of the Business
Property is promptly produced to the Purchaser and the
Business Seller takes at the request and cost of the Purchaser
all such appropriate action in response to such notice as the
Purchaser shall properly require; and
(vi) the Purchaser is accounted to forthwith for any income
received from the Business Property.
(C) Pending legal completion and with effect from Completion in relation to
any relevant Business Property the Purchaser will:
(i) within five Business Days of written demand, put the relevant
Business Seller in funds so as to enable it to pay when due
all rents, service charges and other outgoings payable in
respect of the relevant Business Property;
(ii) by way of indemnity only, observe and perform the covenants
and conditions contained in the title deeds and documents
relating to the relevant Business Property including the
Lease; and
(iii) indemnify the relevant Business Seller against the acts or
omissions of the employees, servants, agents, licensees and
invitees of the Purchaser in or about the relevant Business
Property.
(D) The Purchaser acknowledges that:
(i) as against any person from whom a Property Consent is to be
obtained in accordance with this Agreement it has no right to
possession or occupation of the relevant Business Property;
and
(ii) in the event of a court order being obtained by any such
person it will vacate the relevant Business Property on
demand.
(E) In respect of any leasehold Business Property for which the landlord
has an unqualified discretion to refuse consent to an assignment
novation and underletting if the landlord shall refuse such consent and
shall formally require the Purchaser to vacate the relevant Business
Property the Purchaser shall vacate the relevant property and the
Seller shall retain such Business Property.
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6. UNDERLEASE
(A) This clause shall apply to any Business Property (an "UNCONSENTED
PROPERTY") in relation to which a Property Consent is required where:
(i) the parties agree that Property Consent has been reasonably
withheld; or
(ii) the Property Consent has been refused and the landlord has no
obligation to act reasonably in deciding whether or not to
grant a Property Consent; or
(iii) the relevant Business Seller having complied with its
obligations under sub-paragraph 4(E)(i) the Court has refused
to grant a declaration; or
(iv) the Property Consent has not been issued by the date nine
months after the date of this Agreement unless an application
has been made to the Court for a declaration that the Property
Consent has been unreasonably withheld and such application
has not been determined.
(B) The relevant Business Seller agrees to grant (or procure to be granted)
and the Purchaser agrees to take up an underlease of each Unconsented
Property (the "UNDERLEASE").
(C) The relevant Business Seller shall apply for and use its reasonable
endeavours to obtain Property Underlease Approval and the Purchaser
shall support such application in like manner as the applications
pursuant to paragraph 4 above. The relevant Business Seller will make
an application to a Court of competent jurisdiction for a declaration
that the Property Underlease Approval is being withheld unreasonably
upon request by the Purchaser (acting reasonably) (even though nine
months has not elapsed since the Completion Date) and at the
Purchaser's expense. This paragraph 6(C) shall not apply where the
landlord has no obligation to act reasonably in deciding whether or not
to grant a Property Underlease Approval.
(D) Such underlease shall be completed on the tenth Business Day after the
earlier of:
(i) the Property Underlease Approval being obtained; and
(ii) the expiry of the period for the lodging of an appeal against
a decision made by a Court of competent
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jurisdiction that the Property Underlease Approval has been
unreasonably withheld without such appeal being lodged.
(E) The underleases of each Unconsented Property will be for terms equal to
the unexpired term of the relevant Lease less three days and will be
otherwise on the same terms as the relevant Lease with provision for
the rent to be the same as the rent agreed or determined from time to
time under the Lease, a covenant by the underlessee to observe and
perform the terms of the Lease other than those relating to the payment
of rent and a covenant by the underlessor to pay the rent reserved by
the Lease.
(F) Where the Property Consent is obtained or a declaration is obtained
that such Property Consent has been unreasonably withheld after
completion of such underlease this Agreement shall continue to take
effect for the purpose of assigning or transferring the Lease to the
Purchaser subject to and with the benefit of the Underlease.
(G) The Business Seller shall be liable for all title registration costs
including stamp duty associated with the Underlease when the Property
Consent has been refused in the circumstances described in paragraph
6(A)(ii).
7. DEPOSITS
Unless it is unlawful to do so, on legal completion the relevant
Business Seller will transfer (or procure to be transferred) to the
Purchaser the benefit of all sums held as security for payment of rents
and licence fees or the performance of the covenants or obligations
under the Letting Documents.
8. THE PROPERTY TRANSFER AND UNDERLEASE
(A) Subject to paragraph 5, legal completion of the transfer of the
Business Properties shall take place on completion.
(B) Subject to paragraph 8(C), on legal completion the relevant Business
Seller will deliver a duly signed or executed Property Transfer of the
Business Property to the Purchaser.
(C) If the Business Seller has applied to the relevant landlord for its
consent to an underlease in accordance with paragraph 6 and the
Business Seller has obtained such consent (but has not obtained a
consent for a transfer or an assignment), on legal completion the
relevant Business Seller will deliver a duly
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executed underlease of the relevant Business Property to the Purchaser
and the Purchaser will accept the underlease and deliver a duly
executed counterpart to the Business Seller.
(D) The relevant Business Seller will not by reason of any covenants
implied by law or statute or otherwise expressed in any Property
Transfer of a Business Property which is leasehold be deemed to
covenant expressly or impliedly that the obligations contained in any
lease of the Business Property relating to its state and condition have
been complied with and the Property Transfer will contain a declaration
to that effect.
(E) The Business Seller shall produce drafts of the Property Transfers of
the Business Properties for approval by the Purchaser within 10
Business Days after the date of this Agreement. The Property Transfers
shall be in a form generally acceptable in the relevant jurisdiction
and shall be agreed between the relevant Business Seller and the
Purchaser who shall each act reasonably and in good faith.
(F) The Purchaser shall notify the Business Seller in writing of any
amendments which it reasonably requires to the form of the Property
Transfer (including provisions for assignment of ancillary documents)
in order to ensure that such Property Transfer enables the Purchaser or
such person as it may direct to continue to use the relevant Business
Property in substantially the same manner (including as to terms and
cost) as they are used for the purposes of the Business at the date of
this Agreement.
9. OTHER JURISDICTIONS
The parties acknowledge and undertake to each other that:
(A) notwithstanding that certain of the arrangements provided for or
envisaged by Part A of this Schedule 9 including without limitation the
form of the Property Transfer may not be capable of being directly or
appropriately applied in jurisdictions other than England and Wales
("OTHER JURISDICTIONs") under the laws, established law practices and
procedures of those jurisdictions ("FOREIGN LAWS"), the commercial
principles underlying the provisions and intentions of Part A shall be
applied as closely as possible in the Other Jurisdictions to produce as
nearly as possible the same commercial results; and
(B) to the extent that the arrangements provided for or envisaged by Part A
of this Schedule 9 (including, without limitation, the form of the
Property Transfer) cannot readily or appropriately
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and with reasonable practicality be wholly applied in Other
Jurisdictions under Foreign Laws, they will apply subject to such
alteration and amendment as may be necessary or desirable in order to
achieve in reasonably practical terms the same commercial results (or
as nearly as possible the same commercial results, taking into account
the relevant Foreign laws) as would be achieved in England and Wales on
the application of those arrangements.
(C) to the extent necessary in order to achieve in Other Jurisdictions the
commercial results intended by this Part A, Clause 33 shall apply.
PART B - COUNTRY-SPECIFIC PROPERTY PROVISIONS
10. FRANCE
(A) In relation to the Business Property located in France, the relevant
Property Transfer shall be drawn up and carried out by a French notary.
(B) The Purchaser is aware that the District of Dunkirk may exercise its
pre-emption right in respect of the Business Property located in
France.
(C) Without prejudice to the generality of Clause 38(B), the Purchaser
shall procure that all title registration costs (including, but not
limited to, registration duties) with respect to the Business Property
located in France and the transfer thereof are paid to the relevant
French Tax Authorities.
11. SWEDEN
(A) The relevant Business Seller shall transfer to the relevant Designated
Purchaser all of the Business Properties in Sweden free and clear of
all pre-emption rights which may be exercisable by a municipality or
other body.
(B) In the event the Business Property is registered, in whole or in part,
for voluntary deductions of incoming value added tax the relevant
Business Seller may be obliged to refund deducted value added tax on to
the tax authority, as a consequence of this transfer. In such case, the
Purchaser shall, in addition to the Specific Purchase Price, make
payment to the relevant Business Seller on the Completion Date of an
amount corresponding to the sum to be refunded by the relevant Business
Seller.
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(C) The Purchaser shall be liable for all title registration costs,
including stamp duty, associated with the purchase.
(D) Upon payment of the Purchase Price by the Purchaser on the Completion
Date, the relevant Business Seller shall acknowledge receipt thereof by
a purchase deed, for registration purposes (Sw. Kopebrev).
12. UNITED KINGDOM
At completion of the transfers of the Business Properties at Ashford,
United Kingdom, the Purchaser shall procure that the relevant
Designated Purchaser enters into a deed of covenant in the form
required pursuant to clause 5.2(b) of the Transfer dated 7th July, 1997
made between Batchelors Peas Limited and Quest International
(Fragrances, Flavours, Food Ingredients) UK Limited.
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PART C
BUSINESS PROPERTIES
1. ENGLAND AND WALES
(A) FREEHOLD PROPERTIES WITH REGISTERED TITLES
REGISTERED PROPRIETOR TITLE NUMBER NATURE OF TITLE SHORT DESCRIPTION USE
(OWNER)
Van den ▇▇▇▇▇ Foods Limited NT341924 Absolute Freehold factory site lying to the south of Part factory site
(Co. No. 43520) Claylands Avenue, Worksop. and sports ground
Van den ▇▇▇▇▇ Foods Limited NT354822 Absolute Freehold factory site lying to the south of Factory
(Co. No. 43520) Claylands Avenue, Worksop.
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(B) FREEHOLD PROPERTIES WITH UNREGISTERED TITLES
ESTATE OWNER DATE OF CONVEYANCE TO PARTIES SHORT DESCRIPTION USE
ESTATE OWNER
Batchelors Peas Limited 9th August, 1955 C.A. Caslon Esq. and Freehold factory site lying to the south Factory (part)
(Co. No. 67259) Others (1) west side of Willesborough Road, Ashford.
Batchelors Peas
Limited (2)
Batchelors Peas Limited 20th May, 1957 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ lying to the south west of Factory
(Co. No. 67259) (1) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Willesborough Road, Ashford.
(2) Batchelors Peas
Limited (3)
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(N.B. There was a sale of part (Title No. K776365) by
Batchelors Peas Ltd. to Quest International
(Fragrances, Flavours, Food Ingredients) UK Limited
(Co. No. 691403) in 1997.)
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(C) LEASEHOLD PROPERTIES WITH REGISTERED TITLES
REGISTERED TITLE DATE OF PARTIES UNEXPIRED CURRENT NEXT SHORT USE
PROPRIETOR NUMBER REGISTERED TERM RENTAL RENT DESCRIPTION
(OWNER) LEASE (L) REVIEW
Van den ▇▇▇▇▇ K776731 7th July, 1997 Quest 97 years Land to the west side Soil area
Foods Limited International of Willesborough Road,
(Co. No. 43520) (Fragrances, Ashford.
Flavours, Food
Ingredients) UK
Limited (1)
Van den ▇▇▇▇▇
Foods Limited (2)
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Van den ▇▇▇▇▇ K776733 7th July, 1997 Quest 97 years Land to the west side Industrial
Foods Limited International of Willesborough Road, effluent area
(Co. No. 43520) (Fragrances, Ashford.
Flavours, Food
Ingredients) UK
Limited (1)
Van den ▇▇▇▇▇
Foods Limited (2)
Van den ▇▇▇▇▇ K776736 7th July, 1997 Quest 97 years Land to the west side Steam plant
Foods Limited International of Willesborough Road, and oil tank
(Co. No. 43520) (Fragrances, Ashford.
Flavours, Food
Ingredients) UK
Limited (1)
Van den ▇▇▇▇▇
Foods Limited (2)
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179
Van den ▇▇▇▇▇ K776738 7th July, 1997 Quest 97 years Land to the west side Water tower
Foods Limited International of Willesborough Road, area
(Co. No. 43520) (Fragrances, Ashford.
Flavours, Food
Ingredients) UK
Limited (1)
Van den ▇▇▇▇▇
Foods Limited (2)
180
180
2. FRANCE
Bestfoods France S.A. Freehold Plot numbers 2, 102 and 103 located within Plot number 2: research
an industrial complex subject to joint centre.
ownership and built on land registered
with the Land Registry of Dunkirk under Plot number 102: 11 car
section AI No. 162 at, registered with the parking spaces.
Land Registry of Dunkirk under section A1
No.162. Plot number 103: 11 car
parking spaces.
Surface area of plot number 2: 1,045
square metres.
Address: rue ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Zone
Industrielle, 59760 Grande Synthe.
Generale Condimentaire S.A.S. Freehold ▇▇▇▇ ▇▇▇▇▇▇▇ ▇, ▇▇▇, ▇▇▇, ▇▇▇, ▇▇▇, ▇▇▇ and 108 Factory
located within an industrial complex subject to
joint ownership and built on land registered
with the Land Registry of Dunkirk under section
AI No. 162 (formally registered under sections
A1 Nos. 128, 129, 131, 135, 143, 145, 147, 137,
138 and
181
181
140).
Factory built on this land.
Surface area of the land: 70,000 square metres.
Surface area of the factory: 17,261 square
metres.
Address: rue ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Zone
Industrielle, 59760 Grande Synthe.
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182
3. REPUBLIC OF IRELAND
OWNER TENURE SHORT DESCRIPTION USE
W. & ▇. ▇▇▇▇▇▇▇▇▇ Ltd. Freehold Factory premises at ▇▇▇▇▇ Road, Drogheda, Factory and offices
Co. Louth.
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183
4. SWEDEN
OWNER TITLE NUMBER TENURE SHORT DESCRIPTION USE
Vato Produkter AB 1. Kristianstad, Araslov 1:170 Freehold Industrial site where Van Manufacturing, storage and
(Reg. No. 556025-9193) 2. Kristianstad, Isgrannatorp 1:15 den ▇▇▇▇▇ Foods AB office facilities.
3. Kristianstad, Isgrannatorp 1:16 manufactures dry mix
4. Kristianstad, Isgrannatorp 1:19 products.
5. Kristianstad, Isgrannatorp 1:21
AB Bjare Industrier 1. Kristianstad, Isgrannatorp 1:11 Freehold Industrial site where Van Manufacturing, storage and
(Reg. No. 556026-8970) 2. Kristianstad, Isgrannatorp 1:18 den ▇▇▇▇▇ Foods AB office facilities.
3. Kristianstad, Isgrannatorp 1:23 manufactures dry mix
4. Kristianstad, Isgrannatorp 1:26 products.
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184
Vato Produkter AB (Reg No. 1. Kristianstad Isgrannatorp 1:19 Leasehold Agricultural land Pasture land
5560259193) surrounding the Industrial
Side where Van Den ▇▇▇▇▇
Foods AB manufacture dry mix
products
Vato Produkter AB (Reg. No. 1. Kristianstad Isgrannatorp 1:18 Leasehold Agricultural land Pasture land
5560259193) surrounding the Industrial
Site where Van Den ▇▇▇▇▇
Foods AB manufacture dry mix
products
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185
PART D
COMPANY PROPERTIES
THE NETHERLANDS
OWNER TENURE SHORT DESCRIPTION USE VALUE (E)
Royco Voedingmiddelenfabrieken B.V. Leasehold Land at Land Registry Catharijne Section D Plant, property, lot, lodge
Number 8565 with registered title numbers
1695/54 and 1910/17.
Royco Voedingmiddelenfabrieken B.V. Leasehold Land at Land Registry Catharijne Section D Lodge, plant
Number 8586 with registered title numbers
6506/2 and 6611/38.
Royco Voedingmiddelenfabrieken B.V. Leasehold Land at Land Registry Catharijne Section D Entry
Number 8584 with registered title numbers
6506/2 and 6611/38.
186
SCHEDULE 10
(PENSIONS)
CONTENTS
PART 1
FULLY FINANCING
Page
1. Transferred Relevant Benefits to be Fully Financed 157
2. Actuarial Valuation 158
3. Shortfall 159
PROVISION OF BENEFITS
4. Benefits to be provided by the Purchaser 163
5. Benefits to be provided by the Sellers 169
6. Expatriate employees 169
INTERIM ARRANGEMENTS
7. Continued participation in Sellers' Group Plans 171
8. No increase in regular pension cost or liabilities 172
DISPUTES
9. Disputes 174
COVENANTS
10. Covenants 175
OTHER ISSUES
11. Transfers of assets from a funded Sellers' Group Plan 178
12. Position where Relevant Benefits are split 179
13. Transfer of Relevant Benefits 179
187
187
14. Voluntary Fund 181
15. Employees who become employees of the Sellers' Group after the Completion Date 182
16. Changes to Progress Pension Fund 182
17. Unilever (Ireland) Superannuation Fund 183
PART 2 - UK
PART 3 - DEFINITIONS AND INTERPRETATION
188
188
PART 1
FULLY FINANCING
1. TRANSFERRED RELEVANT BENEFITS TO BE FULLY FINANCED
1.1 Subject to PARAGRAPH 13 and PARAGRAPH 16.3(a), the Sellers shall use
their reasonable endeavours to procure that the funded Transferred
Relevant Benefits are Fully Financed promptly after the Value of such
funded Transferred Relevant Benefits has been determined in accordance
with this Schedule and all necessary consents and approvals have been
obtained.
1.2 PARAGRAPH 3 applies, subject to PARAGRAPH 13:
(a) in respect of funded Transferred Relevant Benefits, to the
extent the Transferred Relevant Benefits are not Fully
Financed; and
(b) in respect of unfunded Transferred Relevant Benefits.
1.3 "FULLY FINANCED" in respect of any funded Transferred Relevant Benefit
means that the Value of any Transferred Assets in respect of that
funded Transferred Relevant Benefit is equal to the Value of that
funded Transferred Relevant Benefit as at the Completion Date.
1.4 1.4.1 Neither the Sellers nor the Purchaser intend that any transfer
of surplus assets (being, in the case of Transferred Relevant
Benefits, Transferred Assets in excess of the Value of the
Transferred Relevant Benefits transferred to that Purchaser's
Group Plan, each valued as at the Completion Date) will be
made from a Sellers' Group Plan to a Purchaser's Group Plan
and each of the Sellers and the Purchaser will use their
respective reasonable endeavours to effect that intention.
1.4.2 Without prejudice to the generality of PARAGRAPH 1.4.1, any
surplus distributed or allocated by the Swedish Staff Pension
Society (SPP) to or for the benefit of any member of the
Sellers' Group in respect of ITP benefits shall be retained by
that member of the Sellers' Group and shall not be transferred
or allocated to a Purchaser's Group Plan or member of the
Purchaser's Group.
1.5 PARAGRAPH 1.6 shall apply notwithstanding any other provision of this
Schedule.
189
189
1.6 1.6.1 If a Benefit under a Relevant Sellers' Group Plan becomes
payable to or in respect of a Pensionable Employee as a result
of the termination of his employment on or with effect from
Completion, or prior to Completion where immediately after
such termination he becomes employed by another member of the
Group, that Benefit shall not be treated as a Transferred
Relevant Benefit for the purposes of this document.
1.6.2 If a Transferred Relevant Benefit is reduced as a result of a
benefit becoming payable to or in respect of a Pensionable
Employee as a result of the termination of his employment on
or with effect from Completion, or prior to Completion where
immediately after such termination he becomes employed by
another member of the Group, that reduction shall be treated
as if it had occurred as at Completion, and so reduce the
Value of the Transferred Relevant Benefit as at Completion,
and the Sellers and Purchaser agree that the provisions of
this document shall be applied in such a way as to give effect
to that principle, making appropriate allowance for the change
in the time value of money where calculations are performed as
at different dates.
1.7 To the extent the Sellers and the Purchaser are unable to agree on the
application of PARAGRAPH 1.6, PARAGRAPH 9 shall apply.
2. ACTUARIAL VALUATION
2.1 This PARAGRAPH 2 applies where the Value of a Transferred Relevant
Benefit or a Transferred Asset is to be determined.
2.2 Subject to PARAGRAPH 2.3, the actuarial method and assumptions to be
used for determining the Value of a Transferred Relevant Benefit are:
(a) those set out in the Actuarial Annex, if applicable;
(b) if (a) does not apply, those used in the last actuarial
valuation of the applicable Plan which was completed, and the
report in respect of which was signed by the Plan's actuary,
prior to the date of this Agreement and, in the case of a
Benefit provided under a funded Plan, also used for funding
the Benefit; or
(c) if neither (a) nor (b) applies, such reasonable actuarial
method and assumptions as may be agreed between the Sellers
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190
and the Purchaser or, in default of agreement, as determined
under PARAGRAPH 9.
2.3 2.3.1 For the avoidance of doubt:
(a) in determining the Value of a Transferred Relevant Benefit,
only the actuarial method and assumptions referred to in
PARAGRAPH 2.2(a), (b) or (c) shall apply. For example, where
an actuarial method and assumptions in respect of a Relevant
Sellers' Group Plan are set out in the Actuarial Annex,
PARAGRAPHS 2.2(b) and 2.2(c) shall be disregarded in relation
to that Relevant Sellers' Group Plan;
(b) without prejudice to the generality of (a) above, no allowance
shall be made under PARAGRAPH 2.2 (unless agreed by the
Sellers in their absolute discretion) for any established
practice referred to in PARAGRAPH 4.2.1 or for the provision
of lump sum death benefits except in each case to the extent
provided for (whether expressly or otherwise) in the actuarial
method and assumptions set out in the Actuarial Annex or
completed actuarial valuation.
2.3.2 If the valuation method referred to in PARAGRAPH 2.2 would
otherwise value the accrual of Transferred Relevant Benefits
by reference to service after the Completion Date, it shall
instead be based on service up to the Completion Date and any
contributions in respect of post-Completion Date service shall
be disregarded.
2.3.3 In valuing the Transferred Relevant Benefits it shall be
assumed there is no obligation to equalise benefits (to the
extent not already equalised under the Relevant Sellers' Group
Plan in question) under Article 141 including, without
limitation, accrued rights to guaranteed minimum pensions in
the UK.
2.4 2.4.1 Unless the Sellers and the Purchaser otherwise agree, the
actuarial valuations will be undertaken by the Sellers'
Actuary and agreed by the Purchaser's Actuary or, in default
of agreement, determined in accordance with PARAGRAPH 9.
2.4.2 The Sellers and the Purchaser shall each:
(a) use all reasonable endeavours to procure that any
information which may reasonably be required by the
Sellers' Actuary or the Purchaser's Actuary for the
purpose of undertaking and agreeing such valuation
191
191
shall, to the extent that it is within the power or
control of the Sellers or the Purchaser, as the case
may be, be supplied to such actuary and that any such
information so supplied shall be true, complete and
accurate in all material respects; and
(b) use all reasonable endeavours to procure that their
or its actuary acts promptly and that such valuations
are completed promptly.
3. SHORTFALL
3.1 This PARAGRAPH 3 applies, subject to PARAGRAPH 13, where there is a
Gross Shortfall. For the avoidance of doubt, the Sellers shall have no
obligation under this PARAGRAPH 3 in respect of any Transferred
Relevant Benefits in relation to which the Purchaser has not complied
with its obligations under PARAGRAPH 13.
3.2 If, in respect of any Transferred Relevant Benefit, A is less than B,
the amount of that shortfall is the "GROSS SHORTFALL".
3.3 A represents the Value of the Transferred Assets in respect of that
Transferred Relevant Benefit.
B represents the Value of the Transferred Relevant Benefit.
NOTE: EXCEPT IN THE CASE OF A RELEVANT SELLERS' SERA PLAN, THE VALUE OF
THE TRANSFERRED ASSETS IN RESPECT OF A TRANSFERRED RELEVANT BENEFIT
FROM AN UNFUNDED RELEVANT SELLERS' GROUP PLAN IS NIL.
3.4 3.4.1 If a Shortfall is determined in relation to any Transferred
Relevant Benefit the Sellers shall, subject to PARAGRAPH 3.5,
promptly pay to the Purchaser (by way of adjustment to the
Final Cash Consideration) an amount in Euros equal to the
aggregate of:
(a) that Shortfall divided by the Market Adjustment
Factor; plus
(b) an amount calculated as if it were interest at the
Agreed Rate (accrued daily and compounded monthly) on
an amount equal to the amount in (a) for the period
from and including the Completion Date to and
excluding the date of actual payment.
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192
3.4.2 Where the Transferred Relevant Benefit is transferring to a
funded Purchaser's Group Plan, the Purchaser shall pay any
amount received under PARAGRAPH 3.4.1 into that Plan.
3.4.3 Any such payment into the Purchaser's Group Plan shall be
made:
(a) promptly on receipt by the Purchaser of the amount
paid under PARAGRAPH 3.4.1; or
(b) to the extent necessary so as to ensure the maximum
degree of tax relief reasonably available is
obtainable for the payment, in instalments over a
period expiring on or before the third anniversary of
the Completion Date.
3.4.4 If the payment to the Purchaser's Group Plan is made in
instalments, the Purchaser shall increase the amount to be
paid in by an amount calculated as if it were interest at the
Agreed Rate (accrued daily and compounded monthly) on an
amount equal to the unpaid instalment for the period from and
including the date of payment under PARAGRAPH 3.4.1 to and
excluding the date of payment to the Purchaser's Group Plan.
3.5 3.5.1 (a) In relation to any Transferred Relevant Benefits in a
particular country, no Shortfall shall be payable
under this PARAGRAPH 3 until the Shortfalls have been
established in relation to all of the Transferred
Relevant Benefits in that country.
(b) PARAGRAPH 3.5.1(a) shall not apply in respect of the
Transferred Relevant Benefits under a Sellers' Group
Plan to which PARAGRAPH 7 applies.
(c) The country in respect of which a Transferred
Relevant Benefit arises shall be determined by
reference to the country listed in the Actuarial
Annex against the Relevant Sellers' Group Plan in
question. In relation to the Netherlands, any
Shortfall calculated by reference to PARAGRAPH 16
shall be disregarded for the purposes of this
PARAGRAPH 3.5.
3.5.2 An account shall then be taken of the Shortfalls arising under
this PARAGRAPH 3 to which PARAGRAPH 3.5.1(a) applies in
respect of the Transferred Relevant Benefits in the country in
question as at such date as may be agreed
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193
between the Sellers and the Purchaser for that country, or in
default of agreement, as at the last day of the calendar month
following the calendar month in which the last of such
Shortfalls has been determined (the "CALCULATION DATE" for
that country). For this purpose, the reference to the date of
actual payment in PARAGRAPH 3.4.1 shall be construed as a
reference to the Calculation Date.
3.5.3 No Shortfall shall be payable in relation to a country unless
the aggregate net amount of any Shortfalls in that country
exceeds E25,000.
3.7 Where a transfer of assets is made from a Sellers' Group Plan to a
Purchaser's Group Plan by instalments, the preceding provisions of this
PARAGRAPH 3 shall be applied with such changes as the parties may agree
to be fair to preserve the time value of the transferred assets as at
the Completion Date or, in default of agreement, as may be determined
under PARAGRAPH 9.
3.8
3.8.1 In this PARAGRAPH 3.8:
A represents the amount of monthly contribution a Pensionable
Employee could have been required to contribute to a Sellers'
Group Plan under the provisions of that Plan in force
immediately prior to the Completion Date but for any surplus
or deficit in that Plan; and
B represents the amount (if any) of monthly compulsory
contribution he pays to the Sellers' Group Plan in question at
the Completion Date.
3.8.2 where A exceeds B in relation to a Pensionable Employee under
any Sellers' Group Plan, the value as at Completion of (A-B)
for the period of 1 year from the Completion Date shall be
deemed to be a Transferred Relevant Benefit for the purposes
of PARAGRAPH 3.
3.9 The aggregate Value of the Transferred Relevant Benefits of all
Transferred Employees under a Relevant Sellers' Group Plan shall not be
less than the aggregate of the value of the statutory minimum transfer
value as at Completion applicable to all Transferred Employees under
that Relevant Sellers' Group Plan.
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194
PROVISION OF BENEFITS
4. BENEFITS TO BE PROVIDED BY THE PURCHASER
4.1 4.1.1 In relation to each Pensionable Employee and each Potential
Employee (as defined in Clause 17) who becomes an employee of
the Purchaser's Group on or after Completion ("FURTHER
EMPLOYEES"), the Purchaser will continue to provide or procure
to be provided equivalent Benefits in respect of service:
(a) prior to the Completion Date; and
(b) for the period of 3 years on and after the Completion
Date,
to the Benefits of that Pensionable Employee immediately prior
to the Completion Date under a Disclosed Sellers' Group Plan
or, in the case of a Further Employee, under a Sellers' Group
Plan whether or not a Disclosed Sellers' Group Plan and
payable, subject to PARAGRAPH 4.2, as of right.
4.1.2 Subject to PARAGRAPH 4.7, the obligation under PARAGRAPH
4.1.1(a) shall not apply to Benefits of a Pensionable Employee
which remain to be provided by a Sellers' Group Plan or a
member of the Sellers' Group.
4.2 4.2.1 Where there is an established practice as to the exercise of
discretions in relation to Benefits which, in the case of a
material established practice under a Principal Fund (as
defined in paragraph 45 of Schedule 3) is referred to in the
Disclosure Letter, the Purchaser shall make an announcement
which is in form and substance to the reasonable satisfaction
of the Sellers that it will, subject to PARAGRAPH 4.2.2,
continue that practice in relation to the Benefits at
PARAGRAPH 4.1.1(a) and (b).
4.2.2 The Purchaser shall, subject to applicable law, have the same
rights of variation and discontinuance of that practice as the
relevant member of the Sellers' Group has immediately prior to
the Completion Date.
4.3 Subject to PARAGRAPH 4.2 of PART 2, the Purchaser shall procure that,
in the satisfaction of its obligation under PARAGRAPH 4.1.1(b),
compulsory contributions shall not be payable by a Pensionable
Employee, except to the extent otherwise expressly
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195
agreed in writing by that Pensionable Employee, at a rate greater than
the rate (if any) at which:
(a) he pays compulsory contributions at the Completion Date, for a
period of 1 year from the Completion Date; and
(b) he could have been required to contribute to the Sellers'
Group Plan in question under the provisions of that Plan in
force immediately prior to the Completion Date but for any
surplus or deficit in that Plan, for the remainder of the
period referred to in PARAGRAPH 4.1.1(b) after the expiry of
the period in (a) above.
4.4 The Purchaser shall procure that admission of a Pensionable Employee to
the applicable Purchaser's Group Plan is not conditional on his
consenting to the transfer of his Benefits in any Sellers' Group Plan
in respect of his past service.
4.5 If the Purchaser or a member of the Purchaser's Group disposes of a
member of the Purchaser's Group or all or any part of the business
thereof, the Purchaser shall procure that the buyer concerned honours
the obligations under PARAGRAPH 4.1 to 4.4 in respect of each
Pensionable Employee concerned in such a disposal.
4.6 For the purpose of PARAGRAPHS 4.1 to 4.5:
(a) "EQUIVALENT" means with an equivalent or greater Value
provided that if, in any case, the Sellers and the Purchaser
consider that the application of PARAGRAPH 2 would not be
appropriate for the purposes of determining such Value for the
purposes of this ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ 2.2(c) shall apply to
determine the actuarial method and assumptions to be used for
determining equivalent Value whether or not PARAGRAPHS 2.2(a)
or (b) apply;
(b) equivalent Benefits in respect of the service of each
Pensionable Employee for the period referred to in PARAGRAPH
4.1 must vest on the same or shorter timescale and at least in
the same circumstances as if the Employee concerned had
continued to be an active member of the Sellers' Group Plan in
question;
(c)(i) equivalent Benefits in respect of service prior to and on and
after the Completion Date must, in addition to satisfying (a)
above, also be of a type and form approved by the Sellers,
such approval not to be unreasonably withheld or delayed. For
this purpose, it is agreed that
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196
it will normally be reasonable for the Sellers not to approve
money purchase benefits in place of Benefits which are of a
defined benefit type, subject to the remaining provisions of
this PARAGRAPH 4.6(c);
(ii) without prejudice to the Purchaser's obligations under
PARAGRAPHS 4.6(b) and (e), if, immediately prior to the
Completion Date, no employee of the Purchaser's Group in
Belgium is entitled to Benefits of a defined benefit type in
respect of any period of his employment, the Sellers shall
approve money purchase benefits in place of Benefits which are
of a defined benefit type in relation to each Pensionable
Employee in Belgium provided that:
(aa) in relation to each month of service on and after the
Completion Date, the employer contribution rate for
equivalent money purchase benefits must not be less
than the aggregate of:
- the Sellers' Accounting Cost in respect of
the Benefits of a defined benefit type which
the money purchase benefits replace; plus
- in relation to the period of 1 year from the
Completion Date, (A-B), where:
A represents the amount of monthly
contribution he could have been
required to contribute to the
Sellers' Group plan in question
under the provisions of that Plan
in force immediately prior to the
Completion Date but for any surplus
or deficit in that Plan; and
B represents the amount (if any) of
monthly compulsory contribution he
pays to the Sellers' Group plan in
question at the Completion Date; or
- from time to time during the remainder of
the period referred to in PARAGRAPH 4.1.1(b)
after the expiry of the period of 1 year
from the Completion Date, (C-D), where:
C represents the amount of monthly
contribution he could have been
required to contribute to the
Sellers' Group plan in question
under the provisions of that Plan
in force immediately
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197
prior to the Completion Date but for any
surplus or deficit in that Plan; and
D represents the amount (if any) of monthly
compulsory contribution he pays to the
Purchaser's Group Plan from time to time
during that period;
(bb) in relation to service prior to the Completion Date,
the transfer of his Benefits under a Sellers' Group
Plan to a Purchaser's Group Plan shall be subject to
the consent of the Pensionable Employee concerned;
(cc) in relation to service prior to the Completion Date,
the Sellers and the Purchaser shall use their
respective reasonable endeavours to agree a treatment
of the Benefits in respect of each such Pensionable
Employee that will afford effective preservation of
defined benefit rights without loss of value to that
Pensionable Employee;
(dd) to the extent the Benefits to be provided in respect
of any Pensionable Employee in Belgium are not agreed
in accordance with (cc) above, (ee) below shall
apply;
(ee) in relation to service prior to the Completion Date,
equivalent Benefits in respect of each such
Pensionable Employee as at the Completion Date shall
not be less than the Sellers' Accounting Value as at
the Completion Date of the Benefits applicable in
relation to that Pensionable Employee (the "ASSESSED
VALUE") which shall be provided by the Purchaser
procuring that an amount equal to the amount by which
the Assessed Value exceeds the Value of that
Transferred Employee's Transferred Relevant Benefit
is credited to that Transferred Employee's money
purchase account under the relevant Purchaser's Group
Plan with effect from the Completion Date (with an
appropriate adjustment to reflect the time value of
money in respect of the period from the Completion
Date to the date on which the credit is made);
(iii) without prejudice to the Purchaser's obligations under
paragraphs 4.6(b) and (e), if, immediately prior to the
Completion Date, no employee of the Purchaser's Group in
Ireland is entitled to Benefits of a defined benefit type in
respect of any period of his employment, the Sellers shall
approve money purchase benefits in place of
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198
Benefits which are of a defined benefit type in relation to
each Pensionable Employee in Ireland provided that:
(aa) in relation to each month of service on and after the
Completion Date, the employer contribution rate for
equivalent money purchase benefits must not be less
than the aggregate of:
- the Sellers' Accounting Cost in respect of
the Benefits of a defined benefit type which
the money purchase benefits replace; plus
- in relation to the period of 1 year from the
Completion Date, (A-B), where:
A represents the amount of monthly
contribution he could have been
required to contribute to the
Sellers' Group plan in question
under the provisions of that Plan
in force immediately prior to the
Completion Date but for any surplus
or deficit in that Plan; and
B represents the amount (if any) of
monthly compulsory contribution he
pays to the Sellers' Group plan in
question at the Completion Date; or
- from time to time during the remainder of
the period referred to in PARAGRAPH 4.1.1(b)
after the expiry of the period of 1 year
from the Completion Date, (C-D), where:
C represents the amount of monthly
contribution he could have been
required to contribute to the
Sellers' Group plan in question
under the provisions of that Plan
in force immediately prior to the
Completion Date but for any surplus
or deficit in that Plan; and
D represents the amount (if any) of
monthly compulsory contribution he
pays to the Purchaser's Group Plan
from time to time during that
period;
(bb) in relation to service prior to the Completion Date,
the transfer of his Benefits under a Sellers' Group
Plan to a Purchaser's Group Plan shall be subject to
the consent of the Pensionable Employee concerned;
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199
(cc) in relation to service prior to the Completion Date,
the Sellers and the Purchaser shall use their
respective reasonable endeavours to agree a treatment
of the Benefits in respect of each such Pensionable
Employee that will afford effective preservation of
defined benefit rights without loss of value to that
Pensionable Employee;
(dd) to the extent the Benefits to be provided in respect
of any Pensionable Employee in Ireland are not agreed
in accordance with (cc) above, (ee) below shall
apply;
(ee) in relation to service prior to the Completion Date,
equivalent Benefits in respect of each such
Pensionable Employee shall be determined in
accordance with PARAGRAPH 4.6(a);
(iv) For the purpose of this PARAGRAPH 4.6(c), "EQUIVALENT" shall
relate to Benefits exclusive of administration costs and the
Sellers and the Purchaser agree to operate the provisions of
this PARAGRAPH 4.6(c) in accordance with that principle.
(v) For the purpose of this PARAGRAPH 4.6:
"SELLERS' ACCOUNTING COST" means the cost, expressed
as a percentage of pensionable pay, calculated in
accordance with the latest actuarial method and
assumptions used for Sellers' Group accounting
purposes prior to Completion, in respect of the
period of 12 months immediately prior to Completion
divided by 12 on the assumption that the Sellers'
Group Plan concerned is neither in surplus nor in
deficit or calculated on such other basis as the
Sellers and the Purchaser shall agree, provided that
the provisions of PARAGRAPH 9 shall not apply in the
event that there is no such agreement; and
"SELLERS' ACCOUNTING VALUE" means the present capital
value as at the Completion Date calculated in
accordance with the latest actuarial method and
assumptions used for Sellers' Group accounting
purposes prior to Completion or calculated on such
other basis as the Sellers and the Purchaser shall
agree, provided that the provisions of PARAGRAPH 9
shall not apply in the event that there is no such
agreement.
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(d) any transfer of Relevant Benefits from a Relevant Sellers'
SERA Plan will be made in accordance with PARAGRAPH 13 and the
Purchaser must procure that the Purchaser's Group Plan which
provides Benefits in respect of such a transfer and in respect
of service after the Completion Date which are equivalent to
Benefits under a Relevant Sellers' SERA Plan is, to the extent
permitted by law, funded;
(e) where Benefits are provided under a Disclosed Sellers' Group
Plan on the death or disability of a Pensionable Employee or
his spouse, child or dependant, equivalent Benefits must be
provided on such events which are payable in circumstances and
under conditions which are not materially less favourable to
the beneficiary concerned as those which would have applied
had the death or disability occurred whilst the beneficiary
was a beneficiary of the Disclosed Sellers' Group Plan in
question under the provisions of that Plan in force
immediately prior to the Completion Date;
(f) any announcement to be issued by the Sellers or a member of
the Purchaser's Group in relation to Benefits the subject of
this PARAGRAPH 4 must be consistent with the terms of this
PARAGRAPH 4 and, prior to the issue of any such announcement,
the Sellers or, as the case may be, the Purchaser, shall
provide to the other a copy of the intended announcement and
shall not issue it without prior consultation with the other.
4.7 4.7.1 This PARAGRAPH 4.7 applies, and PARAGRAPH 4.1.2 does not
apply:
(a) if, in respect of any Relevant Sellers' Group Plan,
the Purchaser does not comply with the provisions of
PARAGRAPH 13.2(d); and
(b) in respect of the SUPS in Sweden and Polaris (Section
A) in Finland.
4.7.2 Subject to PARAGRAPH 4.7.3, there shall be deducted from the
equivalent Benefits which the Purchaser is to provide or
procure to be provided the Benefits (if any) which remain to
be provided by:
(a) where PARAGRAPH 4.7.1(a) applies, the Relevant
Sellers' Group Plan in question; and
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(b) where PARAGRAPH 4.7.1(b) applies, the SUPS in Sweden
and Polaris (Section A) in Finland respectively.
4.7.3 If a transfer payment is made from a Relevant Sellers' Group
Plan in respect of a Pensionable Employee, PARAGRAPH 4.7.2
shall be modified in such manner as the Sellers and the
Purchaser agree to be fair and reasonable in respect of that
Pensionable Employee, or in default of agreement as determined
under PARAGRAPH 9.
4.7.4 Where PARAGRAPH 7 applies in relation to the Relevant Sellers'
Group Plan concerned, for the purposes of this PARAGRAPH 4.7
the reference in PARAGRAPH 4.1(a) to the Completion Date shall
be replaced by a reference to the day immediately after the
termination of pensionable service of the Pensionable Employee
concerned in that Relevant Sellers' Group Plan.
4.8 The Purchaser's agreement to the provisions of this PARAGRAPH 4 is
given by the Purchaser on the express understanding that, if the
Purchaser is in breach of any of such provisions, the Sellers may, at
their absolute discretion, and without limitation, seek to procure
compliance with such provisions by the Purchaser by applying to the
court for damages and/or specific performance.
5. BENEFITS TO BE PROVIDED BY THE SELLERS
The Sellers confirm that they or the appropriate
Sellers' Group Plan will retain all liabilities to
provide Benefits for or in respect of any person who
is not an Employee as at the Completion Date (save to
the extent that the Purchaser is obliged, in
accordance with the remainder of this Schedule, to
provide or procure the provision of Benefits for or
in respect of any person who is not an Employee but
which Benefits arise in respect of a Pensionable
Employee).
6. EXPATRIATE EMPLOYEES
The general principles to be applied in relation to
those Pensionable Employees who are employed in the
European Culinary Brands Business as at the
Completion Date in a country which is not their home
country ("EXPATRIATES") are that:
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(a) the Purchaser shall provide or procure the provision of
Benefits to Expatriates in accordance with the terms promised
to those Expatriates by the Sellers;
(b) the Sellers and the Purchaser shall, in relation to each such
Expatriate, agree the most appropriate and cost effective way
for those Benefits to be provided having regard to applicable
laws and tax regimes;
(c) to the extent Benefits in respect of Expatriates are
transferred to the Purchaser's Group or a Purchaser's Group
Plan, the provisions of PARAGRAPHS 1, 2, 3 and 10 shall apply
to such transferred Benefits as if they were Transferred
Relevant Benefits.
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INTERIM ARRANGEMENTS
7. CONTINUED PARTICIPATION IN SELLERS' GROUP PLANS
7.1 The Sellers shall use their reasonable endeavours to procure that,
subject to the approval or consent of any regulatory body or third
party which may be necessary, Pensionable Employees accruing Benefits
immediately prior to Completion under:
(a) the UPF (as defined in PART 2 of this document);
(b) 1999 SERA (as defined in PART 2 of this document);
(c) the Unilever Superannuation (Ireland) Fund; or
(d) such other Sellers' Group Plans as the Sellers and the
Purchaser may agree in writing,
are permitted to continue such accrual, and that the Purchaser, or the
relevant Purchaser's Group company, is admitted to participation, in
the appropriate Sellers' Group Plan for:
- except in the case of the UPF, such temporary period after the
Completion Date as may be agreed between the Purchaser and the
Sellers, such period not to exceed six months; and
- in the case of the UPF, for the period of 12 months after the
Completion Date, or such lesser period as may be agreed
between the Purchaser and the Sellers..
This PARAGRAPH 7 applies in relation to the continuing accrual of
Benefits by a Pensionable Employee pursuant to such permission.
7.2 The Purchaser shall procure that it or, if applicable, the member of
the Purchaser's Group which participates in the Sellers' Group Plan,
pays to the Sellers' Group Plan:
(a) contributions in respect of the Regular Pension Cost of that
continued accrual until its termination which shall be paid on
the same date or dates as they would otherwise normally have
been paid but for Completion (and but for any surplus or
deficit); and
(b) in respect of any contributions which are paid after the due
date referred to in (a) above, an amount calculated as if it
were interest on those contributions at the Agreed Local
Interest Rate (accrued daily and compounded monthly)
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for the period from and including the due date to and
excluding the date of actual payment.
7.3 The "REGULAR PENSION COST" in respect of the accrual of a Pensionable
Employee's Benefit during a period is the regular cost of that Benefit
determined by reference to the actuarial method and assumptions
referred to in PARAGRAPH 2 (but excluding paragraph 2.3.2) before any
reduction to take account of any surplus and before any increase to
take account of any deficit. For the avoidance of doubt, such regular
cost shall include an amount in respect of the insurance or self
insurance of risk benefits and administration expenses.
7.4 The Sellers may waive any obligation of the Purchaser under PARAGRAPH
7.2.
7.5 The Sellers shall use their reasonable endeavours to procure that, if a
Transferred Employee has Transferred Relevant Benefits in respect of a
Sellers' Group Plan in respect of which this PARAGRAPH 7 applies, the
Sellers' Group Plan shall transfer to the relevant funded Purchaser's
Group Plan an amount equal to:
(a) contributions in respect of that Transferred Employee which
have been paid under PARAGRAPH 7.2; less
(b) a reasonable deduction to reflect the cost of insuring or
self-insuring any risk benefits after the Completion Date and
a reasonable deduction in respect of administration expenses
after the Completion Date in each case, unless specified in
the Actuarial Annex, as agreed between the Sellers and the
Purchaser (or in default of agreement as determined under
PARAGRAPH 9),
such net contributions being adjusted in accordance with the Agreed
Local Adjustment Rate from and including the respective actual date of
payment of the same to and excluding the date of actual payment of the
transfer amount, or the date on which the Shortfall is determined in
relation to the Sellers' Group Plan in question (the "RELEVANT DATE").
7.6 To the extent the net contributions referred to in PARAGRAPH 7.5 are
not transferred to the relevant funded Purchaser's Group Plan, the
provisions of PARAGRAPH 3 shall apply mutatis mutandis, except that any
Gross Shortfall shall be determined as at the Relevant Date, rather
than the Completion Date, and PARAGRAPH 3 shall be interpreted
accordingly for the purpose of this PARAGRAPH 7.6.
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8. NO INCREASE IN REGULAR PENSION COST OR LIABILITIES
8.1 With effect from the Completion Date, neither the Purchaser nor any
member of the Purchaser's Group will, without the prior written consent
of the Sellers, take any action or exercise or permit the exercise of
any right, power or discretion which would have the consequence of
increasing the cost to a member of the Sellers' Group or to any
Sellers' Group Plan in respect of the Benefits of any Pensionable
Employee (or former employee or any one claiming through or by
reference to any Pensionable Employee or former employee) whether as a
result of creating new liabilities or increasing existing liabilities
in a Sellers' Group Plan or otherwise, save that the annual pensionable
salary of any Pensionable Employee may be increased by up to the
percentage (pro-rated to reflect the length of the period referred to
in PARAGRAPH 7.1) assumed for annual pensionable salary increases in
the actuarial assumptions referred to in PARAGRAPH 2 (the "MAXIMUM
ANNUAL RATE") (such percentage being reduced by the percentage amount
of any increase awarded since the last annual pensionable salary
increase awarded prior to the Completion Date) or such greater
percentage agreed in writing by the Sellers and the Purchaser.
8.2 The Sellers shall use all reasonable endeavours to ensure that during
and in respect of the period referred to in PARAGRAPH 7.1:
(i) no Sellers' Group Plan referred to in PARAGRAPH 7.1 shall be
terminated or lose any tax favoured status which it may have
prior to Completion;
(ii) no amendments to any such Plan shall be made which will
diminish or otherwise affect the benefits of the Pensionable
Employees;
(iii) no amendments to any such Plan shall be made which would
increase the obligations of the Purchaser (or relevant member
of the Purchaser's Group, as the case may be);
without the prior written agreement of the Purchaser.
8.3 The Purchaser's agreement referred to in PARAGRAPH 8.2 shall not be
unreasonably withheld or delayed and if withheld or delayed in relation
to any Sellers' Group Plan the Sellers shall be entitled to specify by
not less than two months' written notice to the Purchaser that the
period referred to in PARAGRAPH 7.1 in respect of that Sellers' Group
Plan shall terminate on such date as shall be specified in said notice.
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DISPUTES
9. DISPUTES
9.1 Any dispute between the Sellers and the Purchaser or between the
Sellers' Actuary and the Purchaser's Actuary concerning the
determination or valuation or agreement of any matter to be
specifically determined, valued or agreed under this Schedule shall, in
the absence of agreement between them, be referred to an independent
actuary agreed by the Sellers and the Purchaser or, failing such
agreement, appointed by the President for the time being of the
Institute of Actuaries in England at the request of the party first
applying. In any such case, the independent actuary shall be a person
who possesses appropriate expertise in relation to the jurisdiction in
respect of which the matter has arisen.
9.2 Such independent actuary shall act as an expert and not as an
arbitrator. His decision shall be final and binding on the parties and
his expenses shall be borne as the independent actuary may direct.
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COVENANTS
10. COVENANTS
10.1 10.1.1 For the purposes of this PARAGRAPH 10.1:
(a) "RELEVANT CLAIM" means a claim brought by or on behalf of a
Relevant Person which relates to Benefits attributable to any
period of employment prior to the Completion Date or, if
later, if PARAGRAPH 7 applies, the date pensionable service in
a Sellers' Group Plan ends, under a Disclosed Sellers' Group
Plan in respect of which a transfer of Relevant Benefits has
been made to the Purchaser's Group or a Purchaser's Group
Plan, save that no claim in respect of Relevant Benefits on
the grounds that a Relevant Person was denied access to a
Sellers' Group Plan prior to the Completion Date shall
constitute a Relevant Claim.
(b) "RELEVANT PERSON" means any person who is a Pensionable
Employee (or any person whose benefits arise on the death of
such a Pensionable Employee) or a former employee and those
whose benefits arise on the death of such former employee, and
whose Relevant Benefits in respect of any period of service
prior to the Completion Date, or, if later, if PARAGRAPH 7
applies, the date pensionable service in a Sellers' Group Plan
ends, transfer to the Purchaser's Group or a Purchaser's Group
Plan.
(c) "LIABILITY" means any liability, loss, damage, cost, claim or
reasonable expense arising out of or in connection with any
Relevant Claim.
10.1.2 The Purchaser covenants with the Sellers to pay to the Sellers
forthwith upon demand an amount equal to any Liability which
is incurred or sustained by the Sellers, any member of the
Sellers' Group or a Sellers' Group Plan arising out of or in
connection with any Relevant Claim brought by a Relevant
Person.
10.1.3 Insofar as any Liability relates to the value of any Relevant
Benefits, the amount of such Liability shall be calculated
using such reasonable actuarial method and assumptions as may
be agreed between the Sellers and Purchaser or, in default of
agreement, as may be determined in accordance with PARAGRAPH
9.
10.1.4 Where any Liability is determined in a currency other than
Euros it shall be converted into Euros at the Agreed
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Payment Date Exchange Rate at the date of payment by the
Purchaser.
10.1.5 The time value of the amount payable under PARAGRAPH 10.1.2
shall be maintained by increasing it by an amount calculated
as if it were interest at the Agreed Local Interest Rate
(accrued daily and compounded monthly) on the amount under
PARAGRAPH 10.1.2 for the period from the date as at which the
amount of the Liability has been quantified to the date of
payment of the amount in question to the Sellers.
10.1.6 (a) Subject to PARAGRAPH 10.1.6(c), any Relevant Claim
against the Sellers shall constitute a claim giving
rise to a claim for indemnification for the purposes
of CLAUSE 31 of this Agreement, which shall take
effect accordingly.
(b) If a Relevant Claim is made against the trustees or
administrators of a Sellers' Group Plan, the Sellers
shall, to the extent that they may lawfully do so,
direct (and will otherwise use reasonable endeavours
to persuade) such trustees or administrators to
comply with the terms of CLAUSE 31 of this Agreement.
10.2 10.2.1 For the purposes of this PARAGRAPH 10.2:
(a) "RELEVANT CLAIM" means a claim brought by or on behalf of a
Relevant Person which relates to Benefits attributable to any
period of employment prior to the Completion Date under a
Disclosed Sellers' Group Plan in respect of which a transfer
of Relevant Benefits has not been made to the Purchaser's
Group or a Purchaser's Group Plan.
(b) "RELEVANT PERSON" means any person who is a Pensionable
Employee (or any person whose benefits arise on the death of
such a Pensionable Employee) or a former employee and those
whose benefits arise on the death of such former employee, and
whose Relevant Benefits in respect of any period of service
prior to the Completion Date do not transfer to the
Purchaser's Group or a Purchaser's Group Plan.
(c) "LIABILITY" means any liability, loss, damage, cost, claim or
reasonable expense arising out of or in connection with any
Relevant Claim.
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10.2.2 The Sellers covenant with the Purchaser to pay to the
Purchaser forthwith upon demand an amount equal to any
Liability which is incurred or sustained by the Purchaser or
any member of the Purchaser's Group arising out of or in
connection with any Relevant Claim brought by a Relevant
Person.
10.2.3 Insofar as any Liability relates to the value of any Relevant
Benefits, the amount of such Liability shall be calculated
using such reasonable actuarial method and assumptions as may
be agreed between the Sellers and Purchaser or, in default of
agreement, as may be determined in accordance with PARAGRAPH
9.
10.3
10.3.1 This PARAGRAPH 10.3 applies if and to the extent
that, as a result of the Purchaser or relevant member
of the Purchaser's Group ceasing to employ persons in
the description or category of employment to which
the UPF or the Unilever Superannuation (Ireland) Fund
(the "US(I)F") relates as a result of the sale of the
European Culinary Brands Business, a debt becomes due
from the Purchaser or relevant member of the
Purchaser's Group to the UPF under section 75 of the
Pensions ▇▇▇ ▇▇▇▇ or to the US(I)F under a provision
of Irish legislation with equivalent effect and the
UPF or the US(I)F as the case may be notifies the
Purchaser or relevant member of the Purchaser's Group
that it requires payment of that debt.
10.3.2 Where this PARAGRAPH 10.3 applies, the Sellers
undertake to indemnify the Purchaser and each member
of the Purchaser's Group against the amount of such
debt.
10.4 The Sellers will indemnify the Purchaser and each member of
the Purchaser's Group against any liability to provide
Relevant Benefits on the grounds that an employee of the
European Culinary Brands Business who becomes employed by the
Purchaser's Group with effect from Completion was denied
access to a Sellers' Group Plan prior to the Completion Date
to the extent such claim relates to the period prior to the
Completion Date.
10.5 10.5.1 This PARAGRAPH 10.5 applies in relation to PARAGRAPHS
10.2, 10.3 and 10.4.
10.5.2 Where any liability is determined in a currency other
than Euros it shall be converted into Euros at the
Agreed
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Payment Date Exchange Rate at the date of payment by the
Sellers.
10.5.3 The time value of the amount payable shall be maintained by
increasing it by an amount calculated as if it were interest
at the Agreed Local Interest Rate (accrued daily and
compounded monthly) on the amount for the period from the date
as at which the amount of the liability has been quantified to
the date of payment of the amount in question to the
Purchaser.
10.5.4 Any claim against the Purchaser shall constitute a claim
giving rise to a claim for indemnification for the purposes of
CLAUSE 31 of this Agreement, which shall take effect
accordingly.
10.5.5 The provisions of paragraphs 4 to 9 inclusive and paragraph 12
of Schedule 4 to the Agreement shall apply with respect to any
claim as though references therein to claims for breach of
Warranty were references to claims under PARAGRAPHS 10.2, 10.3
and/or 10.4, as the case may be.
10.5.6 No claim shall be brought against the Sellers or either of
them under PARAGRAPH 10.4 unless the Purchaser shall have
given to the Sellers written notice of such claim giving
reasonable detail thereof on or before the tenth anniversary
of the Completion Date, provided that the liability of the
Sellers in respect of such claim shall absolutely terminate
(if such claim has not been previously satisfied, settled or
withdrawn) if legal proceedings in respect of such claim shall
not have been commenced within six months of the tenth
anniversary of the Completion Date and for this purpose
proceedings shall not be deemed to have been commenced unless
they shall have been properly issued and validly served upon
the Sellers.
OTHER ISSUES
11. TRANSFERS OF ASSETS FROM A FUNDED SELLERS' GROUP PLAN
11.1 The Purchaser undertakes to take no action and to give no assistance
(and to procure that no member of the Purchaser's Group does so)
whether directly or indirectly to any person in any manner which would
or might result in a Sellers' Group Plan from which a transfer of
assets is made to a Purchaser's Group Plan having to transfer more than
the amount which is such that the Relevant Benefits which transfer to
the Purchaser's Group
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Plan are Fully Financed, adjusted in accordance with the remaining
provisions of this PART 1.
11.2 If any assets are transferred from a Sellers' Group Plan to a
Purchaser's Group Plan after the transfer of assets taken into account
in determining whether the Relevant Benefits which transfer from that
Sellers' Group Plan to that Purchaser's Group Plan are Fully Financed,
and if that further transfer of assets arises in respect of the
transfer of the same Relevant Benefits, the Purchaser shall promptly
pay to the Sellers an amount in Euros equal to:
(a) the value of the further assets transferred multiplied by the
Tax Adjustment Factor; plus
(b) an amount calculated as if it were interest at the Agreed Rate
(accrued daily and compounded monthly) on an amount equal to
(a) above for the period from and including the date of
transfer to and excluding the date of payment.
No payment shall be due from the Purchaser under this PARAGRAPH 11.2
unless the Sellers have used all reasonable endeavours to procure that
no transfer of assets as described in this PARAGRAPH 11.2 takes place.
11.3 For the purposes of PARAGRAPH 11.2:
(a) the value of the assets shall be calculated on a basis
consistent with the foregoing provisions of this document and
shall be agreed between the Sellers and the Purchaser and, in
default of agreement, determined under PARAGRAPH 9; and
(b) if the value of the further assets transferred is determined
in a currency other than Euros it shall be converted into
Euros at the Agreed Payment Date Exchange Rate at the date of
the further transfer of assets.
12. POSITION WHERE RELEVANT BENEFITS ARE SPLIT
12.1 Where the Relevant Benefits of a Pensionable Employee are in part
transferred to a Purchaser's Group Plan or a member of the Purchaser's
Group and in part retained by a member of the Sellers' Group or a
Sellers' Group Plan, this PART 1 shall apply separately to the Relevant
Benefits which transfer and to the Relevant Benefits which do not
transfer. This is to the intent that it is only the Relevant Benefits
which transfer which are to be Fully Financed and so to be dealt with
under PARAGRAPHS 1,
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2 and 3 and that, in calculating whether they are Fully Financed, a
deduction will be made, calculated in accordance with PARAGRAPH 2, from
the entire Relevant Benefits of the Transferred Employee in respect of
those Benefits which do not transfer.
12.2 Where PARAGRAPH 12.1 applies, the remaining provisions of this PART 1
shall be modified accordingly.
13. TRANSFER OF RELEVANT BENEFITS
13.1 Where any transfer of Relevant Benefits or assets in respect of those
Relevant Benefits requires the approval or consent of any regulatory
body or any third party (including the Pensionable Employees), the
Sellers and the Purchaser shall use their respective reasonable
endeavours to obtain such approvals and consents.
13.2 In relation to the transfer to a Purchaser's Group Plan of Relevant
Benefits provided under a funded Sellers' Group Plan or a Relevant
Sellers' SERA Plan:
(a) the Sellers shall use their reasonable endeavours to procure that:
(i) a transfer of assets is made from that funded
Sellers' Group Plan; or
(ii) in the case of a Relevant Sellers' SERA Plan, to the
extent permitted by law and the provisions of the
Relevant Sellers' SERA Plan in question, from, at the
Sellers' option:
- a funded Sellers' Group Plan;
- by a transfer from the Sellers to a
Purchaser's Group Plan; and/or
- by a transfer from the Sellers to the
Purchaser which the Purchaser shall, on
receipt of any such amount, promptly pay
into such Plan;
(b) the Purchaser shall use its reasonable endeavours to procure
that the Purchaser's Group Plan:
(i) has all necessary powers, approvals and consents to
accept that transfer; and
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(ii) accepts that transfer;
(c) the Sellers and the Purchaser shall use their respective
reasonable endeavours to procure that the transfer takes place
promptly after the valuation in PARAGRAPH 2 has been
completed. The date of transfer shall be agreed by the Sellers
and the Purchaser (or, in default of agreement, determined
under PARAGRAPH 9); and
(d) no transfer shall take place unless:
(i) the Purchaser produces evidence as to the adequacy of
the funding of the Purchaser's Group Plan which is to
the reasonable satisfaction of the Sellers, and the
Purchaser must procure that the funding of the
Purchaser's Group Plan is to the reasonable
satisfaction of the Sellers; or
(ii) the Purchaser agrees to amend the provisions of the
Purchaser's Group Plan in such a way, which is to the
reasonable satisfaction of the Sellers, that
ring-fences the liabilities and assets in relation to
the Transferred Employees from all other liabilities
and assets of the Purchaser's Group Plan both on an
ongoing basis and on a termination or winding-up of
the Purchaser's Group Plan.
The Purchaser's obligation under this PARAGRAPH 13.2(d) shall
include an obligation to amend the relevant Purchaser's Group
Plan or, to the extent that is not within the control of the
Purchaser's Group, to establish or make available an
alternative Purchaser's Group Plan.
For the purpose of this PARAGRAPH 13.2(d), the funding of a
Purchaser's Group Plan shall be deemed to be to the reasonable
satisfaction of the Sellers:
- if, on the basis of such reasonable actuarial method
and assumptions as are proposed by the Sellers'
Actuary and agreed by the Purchaser's Actuary, the
assets of the Purchaser's Group Plan are at least
equal to its liabilities as at the date in question.
In default of agreement between the Sellers' Actuary
and the Purchaser's Actuary the provisions of
PARAGRAPH 9 shall apply; or
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- the Purchaser's Actuary certifies to the Sellers that
the Purchaser's Group Plan has no liabilities as at
the date in question.
13.3 If:
(a) the proposed transfer does not receive the approvals or
consents referred to in PARAGRAPH 13.1; or
(b) the Purchaser's Group Plan does not have the necessary powers
or does not accept the transfer as referred to in PARAGRAPH
13.2(b),
the Purchaser will, without prejudice to its obligations under
PARAGRAPH 13.2, use its reasonable endeavours to make such arrangements
(which may include amendment of the relevant Purchaser's Group Plan or
the establishment or making available of an alternative Purchaser's
Group Plan) to enable the proposed transfer to take place.
13.4 13.4.1 Subject to PARAGRAPH 13.4.2, the transfer of assets from a
funded Relevant Sellers' Group Plan to a Purchaser's Group
Plan shall be made by the transfer of a reasonable cross
section of the assets of the Relevant Sellers' Group Plan in
question (as agreed by the Relevant Sellers' Group Plan and
the Purchaser's Group Plan).
13.4.2 For the avoidance of doubt, neither the Sellers nor any
Relevant Sellers' Group Plan shall be under any obligation to
agree to transfer any assets other than cash in respect of the
Fully Financing of Relevant Benefits to be transferred from
the Relevant Sellers' Group Plan.
14. VOLUNTARY FUND
14.1 In this PARAGRAPH 14 the expression "VOLUNTARY FUND" means a fund
comprising those voluntary contributions, or the investment or moneys
representing them and any income derived from them, in respect of which
the entitlements of the members who have paid them are not related to
earnings (however defined) but are based on the respective parts of
such Voluntary Fund which are attributable to them.
14.2 Notwithstanding the preceding provisions of this document, if within
any Sellers' Group Plan there is a Voluntary Fund, the Voluntary Fund
and the benefits payable from it and the contributions payable to it
and any transfer payment made from
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it shall be disregarded for all the preceding provisions of
this PART 1.
14.3 14.3.1 Where the company being sold participates in a Relevant
Sellers' Group Plan, the Sellers shall use their reasonable
endeavours to procure that the part of the Voluntary Fund
attributable to the Transferred Employees in question in
accordance with the provisions of the Relevant Sellers' Group
Plan is transferred to the Purchaser's Group Plan at the same
time as the transfer amount in respect of the Relevant
Benefits of those Transferred Employees in the Relevant
Sellers' Group Plan is transferred to the Purchaser's Group
Plan.
14.3.2 The provisions of PARAGRAPH 14.3.1 shall apply, with any
necessary changes, on the sale of a business where the
Relevant Benefits of the Transferred Employees in question are
provided under a Relevant Sellers' Group Plan.
15. EMPLOYEES WHO BECOME EMPLOYEES OF THE SELLERS' GROUP AFTER THE
COMPLETION DATE
15.1 This PARAGRAPH 15 applies in respect of any Pensionable Employee who:
(a) returns to the employment of the Sellers' Group within one
year after the Completion Date; or
(b) prior to the Completion Date, is given the right to elect to
return to the employment of the Sellers' Group within a period
after the Completion Date and who exercises that right.
15.2 The provisions of PARAGRAPHS 1, 2 AND 3 shall apply on the basis set
out in this PARAGRAPH 15, with such modifications as the Sellers and
the Purchaser shall agree to be necessary, in respect of the transfer
of the Benefits of the Pensionable Employee under a Purchaser's Group
Plan which provides Benefits corresponding to the Relevant Sellers'
Group Plan in respect of which that Pensionable Employee had Relevant
Benefits prior to the Completion Date ("RETURNED TRANSFERRED
BENEFITS").
15.3 The Value of the Returned Transferred Benefits shall be determined as
at the date of termination of employment of the Pensionable Employee by
the Purchaser's Group by reference to pensionable service to and
pensionable salary at that date.
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15.4 The Value of the Returned Transferred Benefits shall be reduced to the
extent the Benefits under the corresponding Relevant Sellers' Group
Plan referred to in PARAGRAPH 15.2 have not been Fully Financed in
accordance with PARAGRAPH 2, adjusted to reflect the gross amount of
any Shortfall paid under PARAGRAPH 3.
16. CHANGES TO PROGRESS PENSION FUND
16.1 The Sellers recognise that certain changes are to be made to the
Benefits under the Progress Pension Fund in the Netherlands (the
"PROGRESS FUND"). The principles underlying these changes have been
announced to employees but the changes have not yet been agreed in
detail and will not be implemented until after Completion. A copy of
the announcement is comprised in the Data Room.
16.2 For the purposes of this PARAGRAPH 16:
"ADDITIONAL PROGRESS BENEFITS" means the improvements
to Benefits under the
Progress Fund which are
made in accordance with
the announcement referred
to in PARAGRAPH 16.1;
"IMPLEMENTATION DATE" means the date as
from which the Additional
Progress Benefits become
effective or such earlier
date as the Sellers shall
notify to the Purchaser.
16.3 The Sellers and the Purchaser shall apply the principles of this
Schedule in respect of the Additional Progress Benefits to the effect
that:
(a) in respect of those Pensionable Employees whose Relevant
Benefits have been transferred from the Progress Fund to the
Purchaser's Group Plan, the Additional Progress Benefits, to
the extent they relate to service completed prior to the
Completion Date, shall be treated as Transferred Relevant
Benefits and the provisions of PARAGRAPH 3 shall apply (and
those of PARAGRAPH 1.1 shall not apply) in respect of such
Transferred Relevant Benefits;
(b) for this purpose, the Value of the Additional Progress
Benefits treated as Transferred Relevant Benefits shall
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be determined in accordance with PARAGRAPH 2 promptly after
the Implementation Date;
(c) PARAGRAPH 4 shall apply as if the Additional Progress Benefits
had become effective from the Completion Date, but this
PARAGRAPH 16.3(c) shall not take effect until the
Implementation Date.
17. UNILEVER (IRELAND) SUPERANNUATION FUND
17.1 The Sellers recognise that the claim referred to at paragraph 48
(Ireland) of the Disclosure Letter may result in an amendment to the
benefits provided under the Unilever (Ireland) Superannuation Fund (the
"US(I)F") in relation to certain of the Pensionable Employees; such an
amendment (if any) to the extent it results directly from such a claim
is referred to in this PARAGRAPH 17 as the "US(I)F EQUALISATION
AMENDMENT".
17.2 The Value of the Transferred Relevant Benefit in relation to the US(I)F
will take into account the US(I)F Equalisation Amendment in relation to
Transferred Employees to whom the US(I)F Equalisation Amendment relates
if the US(I)F Equalisation Amendment is made prior to the date on which
Transferred Assets are transferred from the US(I)F to a Purchaser's
Group Plan.
17.3 If the US(I)F Equalisation Amendment is made on or after the date on
which Transferred Assets are transferred from the US(I)F to a
Purchaser's Group Plan, the Sellers and the Purchaser shall apply the
principles of this Schedule in respect of the additional Benefits
effected by the US(I)F Equalisation Amendment in respect of the
Transferred Employees concerned to the effect that such additional
Benefits, to the extent they relate to service completed prior to the
Completion Date, shall be treated as Transferred Relevant Benefits and
the provisions of PARAGRAPHS 1.1 and 3 shall apply in respect of such
Transferred Relevant Benefits.
17.4 If, at any time, neither PARAGRAPH 17.2 or 17.3 apply, PARAGRAPH 10.2
shall apply as if the definitions of Relevant Claim and Relevant Person
were deleted and replaced by the following:
"RELEVANT CLAIM" means a claim brought by or on behalf of a Relevant
Person which relates to Benefits attributable to any period of
employment prior to the Completion Date under the US(I)F in relation to
the subject matter of the claim referred to at paragraph 48 (Ireland)
of the Disclosure Letter; and
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"RELEVANT PERSON" means any person who is a Pensionable Employee under
the US(I)F (or any person whose benefits arise on the death of such a
Pensionable Employee).
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PART 2 - UK
PART 1 of this document applies to the Unilever Pension Fund and 1999 SERA
subject to the modifications set out in this PART 2. To the extent there is any
inconsistency between PART 1 and this PART 2 in relation to the UPF or 1999
SERA, this PART 2 shall prevail.
FULLY FINANCING
1. TRANSFERRED RELEVANT BENEFITS TO BE FULLY FINANCED
2. ACTUARIAL VALUATION
3. SHORTFALL
3.1 If a Shortfall is determined in relation to any Transferred Relevant
Benefit the Sellers shall, subject to PARAGRAPH 3.6 of PART 1, promptly
pay to the Purchaser (by way of adjustment to the Final Cash
Consideration) an amount in Euros equal to the aggregate of:
(a) that Shortfall:
- adjusted in respect of the period from the
Completion Date to 31st October, 2000 by
interest at the rate of 7.5 per cent. per
annum to give its value at 31st October,
2000;
- divided by the Market Adjustment Factor;
- adjusted in respect of the period from 31st
October, 2000 to the Completion Date by
reference to the Agreed Local Adjustment
Rate to give its value at the Completion
Date; plus
(b) an amount calculated as if it were interest at the
Agreed Rate (accrued daily and compounded monthly) on
an amount equal to the amount in (a) for the period
from and including the Completion Date to and
excluding the date of actual payment.
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PROVISION OF BENEFITS
4. BENEFITS TO BE PROVIDED BY THE PURCHASER
4.1 4.1.1 This PARAGRAPH 4.1 applies in respect of Pensionable Employees
who have Benefits under the UPF.
4.1.2 The Purchaser shall procure that the Purchaser's Group Plan
under which Benefits are to be provided under PARAGRAPH 4 of
PART 1 to those Pensionable Employees who have Benefits under
the UPF shall be contracted-out on the basis specified in
Section 9(2B) of the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (as amended) and
approved under Chapter I of Part XIV of the Income and
Corporation Taxes Act 1988 by the Board of Inland Revenue.
4.1.3 In determining whether Benefits under the Purchaser's Group
Plan are "EQUIVALENT" to Benefits under the UPF, Benefits in
the UPF shall be deemed to include, and Benefits to be
provided or procured to be provided by the Purchaser shall for
the purposes of this Schedule be deemed to include:
(a) a right to receive benefits unreduced from age 60
NOTE: Pre 1st October, 1987 female members of the UPF have
this benefit as of right under the UPF rules. Pre 1st
October, 1987 male members have this benefit as of
right in respect of post 16th May, 1990 pensionable
service. For other members (and for pre 17th May, 1990
pensionable service for pre 1st October, 1987 male
members) due allowance for unreduced benefits from age
60 is made in cash equivalent calculations and see
also the allowance made in the Actuarial Annex; and
(b) where a Pensionable Employee elects, at any time
before the Scheme Change Date, under Rule C3 of the
UPF to purchase a service credit and the period over
which contributions are payable in respect of the
cost of that credit has not expired before the Scheme
Change Date, a right, for so long as he remains in
pensionable service by reference to the Purchaser's
Group Plan, to purchase over the period commencing on
the Scheme Change Date the balance of the service
credit which he would have been entitled to purchase
had he remained in pensionable service by reference
to the UPF on the same terms and conditions as apply
under the provisions of the UPF in force immediately
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prior to the Completion Date. Notwithstanding
PARAGRAPH 4.1.1(a) of PART 1, once such an election
has been made, the obligation of the Purchaser under
this (b) shall continue to apply until the expiry of
the period over which contributions are payable in
respect of the cost of the service credit.
4.2 PARAGRAPH 4.3 of PART 1 and PARAGRAPH 7.2 shall not apply to any
employee contributions due in respect of the purchase of a service
credit under the UPF, as referred to in PARAGRAPH 4.1.3(b).
4.3 Any transfer of Relevant Benefits from 1999 SERA will be made in
accordance with PARAGRAPH 13 of PART 1 and the Purchaser must procure
that the Purchaser's Group Plan which provides Benefits in respect of
such a transfer and in respect of service after the Completion Date
which are equivalent to Benefits under 1999 SERA is, to the extent such
Benefits are capable of tax approval, funded.
5. BENEFITS TO BE PROVIDED BY THE SELLERS
6. EXPATRIATE EMPLOYEES
INTERIM ARRANGEMENTS
7. CONTINUED PARTICIPATION IN SELLERS' GROUP PLANS
7.1 Subject to obtaining all necessary consents and approvals, the Sellers
will use all reasonable endeavours to procure that the Purchaser or
relevant member of the Purchaser's Group is permitted to participate in
the UPF and 1999 SERA during the Holding Period in respect of:
(a) Employees who are members of the UPF and 1999 SERA on the
Completion Date; and
(b) Employees who are or become eligible during the Holding Period
to become members of the UPF and who become members of it
during the Holding Period.
7.2 Subject to PARAGRAPH 4.2, no contributions shall be payable during the
Holding Period by Employees or other persons who are or become members
of the UPF apart from additional voluntary contributions.
7.3 The Purchaser shall, or shall procure that the relevant member of the
Purchaser's Group shall:
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(a) comply during the Holding Period in all respects with the
provisions of the UPF;
(b) not do or omit to do during the Holding Period any act or
thing whereby the approval of the UPF as an exempt approved
scheme or as a contracted-out scheme would or might be
prejudiced;
(c) not exercise any power, right or discretion conferred on it by
the UPF except on such terms (whether as to payment of
additional contributions to the UPF or otherwise) as the
Sellers may agree;
(d) complete promptly all contracting-out elections and issue
promptly all contracting-out notices which the Sellers may
reasonably require to be completed or issued;
(e) supply to the Sellers and to the trustees of the UPF copies of
any notices to be issued to the Pensionable Employees in
connection with the matters contemplated by this document
before they are issued to the Pensionable Employees;
(f) use its reasonable endeavours to procure that the consent by a
Pensionable Employee to the transfer to the Purchaser's Group
Plan of his Relevant Benefits in the UPF in respect of his
service up to the Scheme Change Date shall include a discharge
to the trustee of the UPF and the members of the Sellers'
Group for any liability to or in respect of him under the UPF
in such form as the Sellers and the Purchaser shall agree (the
consent of the Purchaser not to be unreasonably withheld or
delayed);
(g) use all reasonable endeavours to help the Sellers and the
trustees of the UPF meet any statutory obligations which
relate to the Pensionable Employees during the Holding Period;
and
(h) gives the notice required under Clause 23(b)(i) of the Trust
Deed of the UPF to terminate its participation in the UPF with
effect from the day before the Scheme Change Date.
7.4 For the purposes of PARAGRAPH 7.3 of PART 1, the "REGULAR PENSION COST"
in respect of the UPF shall be 16.7 per cent. of "pensionable pay" as
defined in the rules of the UPF of the Pensionable Employees concerned
plus the employer cost of the purchase of any service credit under the
UPF referred to in PARAGRAPH 4.1 to the extent that cost relates to the
Holding Period.
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7.5 In addition to the contributions required under PARAGRAPH 7.4, the
Purchaser shall pay or procure the payment of contributions, in respect
of those Pensionable Employees who are members of 1999 SERA, to
Unilever UK Central Resources Limited of 7 per cent. of "pensionable
pay" (as defined in the governing documentation of 1999 SERA) of the
Pensionable Employees concerned.
7.6 For the purposes of PARAGRAPH 7.5(b) of PART 1, the aggregate
adjustment to reflect the cost of self insuring risk benefits and
administration expenses shall be 3.3 per cent. of "pensionable pay" (as
defined in the UPF Trust Deed) of the Pensionable Employees in respect
of the Holding Period.
8. NO INCREASE IN REGULAR PENSION COST OR LIABILITIES
8.1 For the purposes of PARAGRAPH 8 of PART 1:
(a) the Maximum Annual Rate in relation to the UPF is 5 per cent.;
(b) pensionable salary means "pensionable pay" as defined in the
rules of the UPF ; and
(c) the consent of the Sellers may be given on such terms and
conditions whether as to payment of contributions to the UPF
or otherwise as the Sellers may stipulate.
8.2 For the avoidance of doubt, PARAGRAPH 8 of PART 1 shall not prevent any
Pensionable Employees retiring from the UPF during the Holding Period
on or after age 60 on an unreduced basis and no consent shall be
required from the Sellers under PARAGRAPH 8 of PART 1 in respect of any
such retirement on that basis.
DISPUTES
9. DISPUTES
COVENANTS
10. COVENANTS
OTHER ISSUES
11. TRANSFERS OF ASSETS FROM A FUNDED SELLERS' GROUP PLAN
11.1 The Purchaser undertakes to the Sellers that, prior to any transfer of
assets from the UPF to the Purchaser's Group Plan, it will use its
reasonable endeavours to secure the agreement of the trustees
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of the Purchaser's Group Plan not to accept that part of the total
payment proposed to be made to the trustees of the Purchaser's Group
Plan by the trustee of the UPF which exceeds the aggregate of the
amount which is such that the Relevant Benefits in the UPF of the
Pensionable Employees who consent to the transfer thereof are Fully
Financed as at the Completion Date plus the net contributions referred
to in PARAGRAPH 7.5, adjusted as described in that paragraph.
12. POSITION WHERE RELEVANT BENEFITS ARE SPLIT
13. TRANSFER OF RELEVANT BENEFITS
13.1 It is a pre-condition (which the Purchaser shall use its best
endeavours to procure is fulfilled) to the transfer of assets from the
UPF to the Purchaser's Group Plan under PARAGRAPH 13 of PART 1 and to
the Sellers' Fully Financing of Relevant Benefits under the UPF that:
(a) the trustees of the Purchaser's Group Plan deliver to the
trustee of the UPF an undertaking under which the trustees of
the Purchaser's Group Plan agree:
(i) to accept the assets to be transferred from the UPF
in accordance with this document;
(ii) subject to receipt of such assets from the UPF and,
where applicable, to a balancing payment being made
or credited to the Purchaser, to provide benefits to
the Transferred Employees in accordance with this
document;
(iii) to comply with the applicable requirements of Clause
19(b) (Bulk transfers-out) of the UPF Trust Deed,
being:
- any undertakings given by the UPF to the
Commissioners of Inland Revenue;
- the preservation requirements of the ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (and any regulations
relating to the preservation requirements
made under that Act); and
- the contracting-out requirements of the
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (and any
regulations relating to the contracting-out
requirements made under that or any other
Act),
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in each case to the extent applicable; and
(b) the employer of the Transferred Employees in question is named
in a contracting-out certificate issued for contracting-out on
the basis specified in Section 9(2B) of the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ (as amended by the Pensions Act 1995) in relation to
the Purchaser's Group Plan.
13.2 13.2.1 Subject to PARAGRAPH 13.4.2 of PART 1, the transfer of assets
from the UPF to the Purchaser's Group Plan shall be made by
the transfer of a reasonable cross section of the assets of
the UPF (as agreed by the trustee of the UPF and the trustees
of the Purchaser's Group Plan).
13.2.2 If such respective trustees are unable to agree some or all of
the particular assets to be transferred, that part of the
Transfer payment for which the assets are not agreed shall be
in cash and every L99.50 of cash in the transfer of assets
paid for this reason shall count as L100 in cash before being
adjusted in accordance with the definition "VALUE" to give the
value of the assets transferred as at the Completion Date.
14. VOLUNTARY FUND
15. EMPLOYEES WHO BECOME EMPLOYEES OF THE SELLERS' GROUP AFTER THE
COMPLETION DATE
16. CHANGES TO PROGRESS PENSION FUND
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ANNEX TO PART 2 - UK - DEFINITIONS AND INTERPRETATION
1.1 In this PART 2:
"HOLDING PERIOD" means the period commencing on and including
the Completion Date and ending immediately
before the Scheme Change Date.
"1999 SERA" means the arrangements constituted by a letter
from Unilever UK Central Resources Limited to
the Pensionable Employee in question, entitled
"Senior Managers' Pension Arrangements: 1999
SERA Letter".
"SCHEME CHANGE DATE" means the date 6 months after the Completion
Date or such other date as the Sellers and the
Purchaser may agree in writing.
"UPF" means the Unilever Pension Fund, constituted by
a definitive trust deed and rules dated 31st
January, 2000 (as amended) or, if the context
so requires, the trustee of the Unilever
Pension Fund.
"VALUE" has the same meaning as in PART 1, save that
sub-paragraph (b) within the definition of
"VALUE" shall be deleted and replaced by the
following:
"(b) in respect of a Transferred Asset, an
amount in Euros which is equal to:
- (A x B);
- adjusted in respect of the period
from 31st October, 2000 to the
Completion Date by reference to
interest at the rate of 7.5 per
cent. per annum to give its value as
at the Completion Date;
- multiplied by C;
where:
A subject to PARAGRAPH 13.2.2, represents
its mid-market value in local currency
at the date it is transferred to,
assumed by or retained by a member of
the Purchaser's Group or a Purchaser's
Group Plan (such mid-market
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value being as agreed by the Sellers'
Actuary and the Purchaser's Actuary or,
in default of agreement, as determined
under PARAGRAPH 9 of PART 1 of this
Schedule), adjusted in respect of the
period from that date to 31st October,
2000 by reference to the Agreed Local
Adjustment Rate to give its value as at
31st October, 2000;
B represents the Market Adjustment
Factor; and
C represents the Currency Adjustment
Factor."
1.2 Save where specifically defined or where the context otherwise
requires, words and expressions used in Chapter I of Part XIV of the
Income and Corporation Taxes ▇▇▇ ▇▇▇▇ or in the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ (as amended) shall have the same meanings in this PART 2.
1.3 References to "PART 1" are to PART 1 of this Schedule.
1.4 References in this PART 2 to paragraphs are to paragraphs of this PART
2, unless otherwise stated.
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PART 3 - DEFINITIONS AND INTERPRETATION
1.1 In this Schedule (excluding PART 2 where any expression defined in this
PART 3 is also defined in PART 2):
"ACTUARIAL ANNEX" means the Annex to this Schedule entitled
"Disclosed Sellers' Group Plans and
Actuarial Annex".
"AGREED COMPLETION DATE EXCHANGE means, subject to PARAGRAPH 1.4 of this
RATE" PART 3 of this Schedule, in respect of
any amount, the prevailing exchange rate
applicable to a translation of that
amount into Euros at the spot rate of
exchange (closing mid-point) on the
business day in London immediately prior
to the Completion Date published in the
London edition of The Financial Times
first published thereafter or where no
such rate of exchange is published on
that date, the rate quoted by Citibank
N.A. as at the close of business in
London on that date.
"AGREED LOCAL ADJUSTMENT RATE" means, in respect of any period:
(a) the interest rate, timing adjustment
or rate of return identified as such
in the Actuarial Annex in respect of
that period; or
(b) if (a) does not apply, the Agreed
Local Interest Rate.
"AGREED LOCAL INTEREST RATE" means the rate determined by the Sellers
as equivalent to the cost to the Sellers
of borrowing in the currency in question
for the period in question and agreed by
the Purchaser or, in default of
agreement, as may be determined under
PARAGRAPH 9.
"AGREED PAYMENT DATE EXCHANGE RATE" means, subject to PARAGRAPH 1.4 of this
PART 3 of this document, in respect of
any amount which is paid on a given date,
the prevailing exchange rate applicable
to a translation of that amount into
Euros at the spot rate of exchange
(closing mid-point) on the business day
in London immediately prior to that date
published in the London edition of The
Financial Times first published
thereafter or
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where no such rate of exchange is
published on that date, the rate quoted
by Citibank N.A. as at the close of
business in London on that date.
"ARTICLE 141" means Article 141 of the Treaty of Rome
or any current or future legislation
which implements Article 141 or which
implements any EC Directive relating to
equal treatment. References to the EC
shall be taken to include the European
Community (formerly the European Economic
Community) and the European Union.
"BENEFIT" means any pension, lump sum, gratuity,
payment of costs (including, without
limitation, medical, dental or other
healthcare costs), or other like benefit
provided or to be provided:
- on or after retirement;
- on death;
- on or after termination of
employment, except to the extent
the benefits referred to above are
enhanced where such termination is
on account of redundancy or at the
request of the employer;
- on or in connection with disability
(but excluding those benefits
described in SCHEDULE 11 to this
Agreement),
but excluding any benefit provided under
an arrangement the sole purpose of which
is to provide benefits on injury or death
by accident occurring whilst an Employee.
"CALCULATION DATE" has the meaning given to that expression
in PARAGRAPH 3.5.2.
"CURRENCY ADJUSTMENT FACTOR" means, in respect of any amount to which
it is stated to apply:
(a) if the amount is expressed in
Euros, one;
(b) if the amount is expressed in a
currency other than Euros, the
Agreed Completion
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Date Exchange Rate.
"DISCLOSED SELLERS' GROUP PLAN" means all or any of the Sellers' Group
Plans which are listed in the document in
the Actuarial Annex or details of which
are comprised in the Data Room.
"EXPATRIATES" has the meaning given to that expression
in PARAGRAPH 6.
"FULLY FINANCED" has the meaning given to that expression
in PARAGRAPH 1.3, and derivative
expressions shall be construed
accordingly.
"GROSS SHORTFALL" has the meaning given to that expression
in PARAGRAPH 3.2.2.
"LIABILITY" has the meaning given to that expression
in PARAGRAPH 10.1.
"MARKET ADJUSTMENT FACTOR" means:
(a) in a case identified in the
Actuarial Annex as being one to
which a market value adjustment is
to apply:
(i) the market adjustment factor
stated in the Actuarial
Annex; or
(ii) if (i) does not apply, a
market adjustment factor
agreed by the Vendors and the
Purchaser (or, in default of
agreement, determined in
accordance with PARAGRAPH 9)
which is consistent with the
actuarial valuation method
and assumptions used under
PARAGRAPH 2 for valuing
liabilities in respect of the
Sellers' Group Plan to which
the Benefits in question
relate; or
(b) if (a) does not apply, one.
"PENSIONABLE EMPLOYEE" means an Employee who has, or in respect
of whom another person has, immediately
prior to the Completion Date, an
entitlement (whether present, future or
contingent) to Benefit
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under a Sellers' Group Plan.
"PLAN" means any scheme, plan, fund or
arrangement, whether or not funded or
insured.
"PURCHASER'S ACTUARY" means such actuary or firm of actuaries
as the Purchaser may determine for the
purpose of this document.
"PURCHASER'S GROUP PLAN" means any Plan of any member of the
Purchaser's Group under which Benefits
are provided or, if the context so
requires, the trustees or managers of any
such Plan.
"REGULAR PENSION COST" has the meaning given to that expression
in PARAGRAPH 7.3.
"RELEVANT BENEFIT" means a liability (whether present,
future or contingent) determined, to the
extent applicable, in accordance with
PARAGRAPH 2 which arises under a Relevant
Sellers' Group Plan to provide a Benefit.
"RELEVANT CLAIM" has the meaning given to that expression
in PARAGRAPH 10.1.
"RELEVANT DATE" has the meaning given to that expression
in PARAGRAPH 7.5.
"RELEVANT PERSON" has the meaning given to that expression
in PARAGRAPH 10.1.
"RELEVANT SELLERS' GROUP PLAN" means all or any of the Sellers' Group
Plans which are listed in the Actuarial
Annex and which are identified as
Relevant Sellers' Group Plans.
"RELEVANT SELLERS' SERA PLAN" means all or any of the Sellers' Group
Plans which are identified as unfunded
SERA Plans in the Actuarial Annex and
which the Sellers nominate, in their
absolute discretion and within one year
after the Completion Date, to be Relevant
Sellers' SERA Plans.
"SELLERS' ACTUARY" means such actuary or firm of actuaries
as the Sellers may determine for the
purpose of this document.
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"SELLERS' GROUP PLAN" means any Plan of any member of the
Sellers' Group or the Companies under
which Benefits are provided or, if the
context so requires, the trustees or
managers of any such Plan.
"SHORTFALL" means the Gross Shortfall multiplied by
the Tax Adjustment Factor.
"TAX ADJUSTMENT FACTOR" means, in respect of a Gross Shortfall
which arises under:
(a) a funded Relevant Sellers' Group
Plan, 1.0 - X, where X represents the
maximum effective tax rate (expressed as
the percentage rate divided by 100)
applicable as at Completion to corporate
profits made in the jurisdiction in which
that Relevant Seller's Group Plan is
established;
(b) an unfunded Relevant Sellers' Group
Plan, 1.0 - X, where:
- X represents zero, to the extent
there would be no corresponding
deferred tax asset in the Notional
Completion Balance Sheet; and
- X represents, to the extent there
would be a corresponding deferred
tax asset in the Notional Completion
Balance Sheet, the maximum effective
tax rate (expressed as the
percentage rate divided by 100)
applicable as at Completion to
corporate profits made in the
jurisdiction in which that Relevant
Sellers' Group Plan is established.
For the purpose of this definition,
"NOTIONAL COMPLETION BALANCE SHEET" means
a balance sheet in respect of the
European Culinary Brands Business drawn
up as at the Completion Date in
accordance with the accounting principles
and practices as set out in the Unilever
accounting policy manual effective
immediately prior to the Completion Date.
"TRANSFERRED ASSETS" means, in respect of any Benefit, the
assets which are comprised in the Plan
under which
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that Benefit is provided and which are
transferred to, assumed by or retained by
a member of the Purchaser's Group or a
Purchaser's Group Plan, but excluding any
such assets which are paid in
satisfaction of the Sellers' obligation
under PARAGRAPH 3.5, PARAGRAPH 7.5 and/or
7.6.
"TRANSFERRED EMPLOYEE" means a Pensionable Employee who:
(a) becomes a member of a
Purchaser's Group Plan with
effect from the day after his
pensionable service under the
relevant Sellers' Group Plan
terminates;
(b) who agrees in writing to the
Benefits under the relevant
Sellers' Group Plan of and in
respect of him being transferred
to a Purchaser's Group Plan
(such agreement in writing to
include a discharge in a form
agreed by the Sellers (whose
agreement shall not be
unreasonably withheld or
delayed) in favour of the
Sellers' Group Plan and each
member of the Sellers' Group for
any liability to or in respect
of that Pensionable Employee to
provide any Benefits under that
Sellers' Group Plan); and
(c) who does not withdraw that
agreement before such Benefits
are transferred to a Purchaser's
Group Plan,
provided that (b) of this definition
shall not apply:
- in relation to the transfer of the
Benefits of a Pensionable Employee
from a Sellers' Group Plan to a
Purchaser's Group Plan or any member
of the Purchaser's Group where under
applicable law that transfer takes
place automatically without the
Pensionable Employee's consent; or
- where the Sellers, in their absolute
discretion, so determine in relation
to one or more Pensionable Employees
or one or
234
234
more Sellers' Group Plans.
"TRANSFERRED RELEVANT BENEFIT" means a Relevant Benefit which is
transferred to or assumed by a member of
the Purchaser's Group or a Purchaser's
Group Plan but excluding any such
Relevant Benefit in respect of a
Pensionable Employee who does not become
a Transferred Employee in respect of that
Relevant Benefit (notwithstanding that it
is so transferred or assumed).
"VALUE" means:
(a) in respect of any Benefit, an
amount in Euros which is equal
to the actuarial value of that
Benefit as at the Completion
Date, determined in accordance
with the actuarial method and
assumptions which are to be
applied to that Benefit under
PARAGRAPH 2, multiplied by C;
(b) (i) in respect of a
Transferred Asset other
than an insurance
policy, an amount in
Euros which is equal to
(A x B x C);
(ii) in respect of a
Transferred Asset which
is an insurance policy,
equal to its value
calculated in
accordance with
PARAGRAPH 2.2, at the
date it is transferred
to, assumed by or
retained by a member of
the Purchaser's Group
or a Purchaser's Group
Plan adjusted in the
same way as A, and then
multiplied by C.
In each case where:
A represents its market
value in local currency at
the date it is transferred
to, assumed by or retained
by a member of the
Purchaser's Group or a
Purchaser's Group Plan,
adjusted in respect of the
period (if any) from that
date to the Completion
Date, by reference
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235
to the Agreed Local
Adjustment Rate to give
its value as at the
Completion Date;
B represents the Market
Adjustment Factor; and
C represents the Currency
Adjustment Factor.
"VOLUNTARY FUND" has the meaning given to that expression
in PARAGRAPH 14.
1.2 References in this document to "ASSETS" shall, unless the context
otherwise requires, include references to both cash and non-cash
assets.
1.3 References in PART 1 of this Schedule and in this PART 3 of this
Schedule to paragraphs are to paragraphs of PART 1 of this Schedule,
unless otherwise stated.
1.4 Any rate published or quoted and referred to in the definitions of
"AGREED COMPLETION DATE EXCHANGE RATE" or "AGREED PAYMENT DATE EXCHANGE
RATE" shall be determined by the Sellers' Actuary and agreed by the
Purchaser's Actuary or, in the absence of agreement, determined under
PARAGRAPH 9 of PART 1 of this Schedule.
236
236
PROJECT COLORADO - VENDORS' GROUP PLANS AND ACTUARIAL ANNEX - PART 1
237
237
PROJECT COLORADO SELLERS' GROUP PLANS AND ACTUARIAL ANNEX - PART 1
ACTUARIAL METHOD AND
APPLICABLE TYPE OF PLAN - FUNDED/ IS THE PLAN A RELEVANT ASSUMPTIONS RELEVANT FOR
COUNTRY PENSION PLAN DB/DC/HYBRID/OTHER UNFUNDED SELLERS' GROUP PLAN? CALCULATING VALUE
------- ------------ ------------------ -------- ---------------------- ------------------------
UK UNILEVER PENSION FUND DB FUNDED YES See Part 2 of this Annex
LONG SERVICE AWARDS OTHER UNFUNDED YES Methods and assumptions in
accordance with last valuation
used for Unilever group
accounting purposes in
accordance with Unilever
Accounting Manual.
1999 SERA DB UNFUNDED YES Per the Unilever Pension Fund
NETHERLANDS STICHTING UNILEVER DB FUNDED YES See Part 2 of this Annex
PENSIOENFONDS "PROGRESS"
(PROGRESS PENSION FUND)
SBR (REDUNDANCY) NO only applies to inactives -
Unilever retains
238
238
ACTUARIAL METHOD AND
APPLICABLE TYPE OF PLAN - FUNDED/ IS THE PLAN A RELEVANT ASSUMPTIONS RELEVANT FOR
COUNTRY PENSION PLAN DB/DC/HYBRID/OTHER UNFUNDED SELLERS' GROUP PLAN? CALCULATING VALUE
------- ------------ ------------------ -------- ---------------------- ------------------------
VUT (EARLY RET) NO only applies to inactives -
Unilever retains
LONG SERVICE AWARDS OTHER UNFUNDED YES Methods and assumptions in
accordance with last valuation
used for Unilever group
accounting purposes in Belgium
but using benefit structure
applicable in the Netherlands.
STEUN BIJ ZIEKTE POST-RETIREMENT UNFUNDED YES Method and assumptions of FAS106
MEDICAL report dated 7 February ▇▇▇▇
▇▇▇▇▇▇▇ PENSIOENFONDS "UNION"/ DB FUNDED YES See Part 2 of this Annex.
FONDS DE PENSION
"UNION"
LONG SERVICE AWARDS OTHER UNFUNDED YES Methods and assumptions in
accordance with last valuation
used for Unilever group
accounting purposes in
accordance with Unilever
Accounting Manual.
239
239
ACTUARIAL METHOD AND
APPLICABLE TYPE OF PLAN - FUNDED/ IS THE PLAN A RELEVANT ASSUMPTIONS RELEVANT FOR
COUNTRY PENSION PLAN DB/DC/HYBRID/OTHER UNFUNDED SELLERS' GROUP PLAN? CALCULATING VALUE
------- ------------ ------------------ -------- ---------------------- ------------------------
WINTERTHUR SAVINGS SCHEME DC FUNDED NO
FONDS DE PREVOYANCE POST RETIREMENT UNFUNDED YES Methods and assumptions of
UNILEVER MEDICAL FAS106 report dated 25 January
2000
FRANCE AGIRC Industry-wide scheme NO
(Royco)
ARRCO Industry-wide scheme NO
LONG SERVICE AWARDS OTHER UNFUNDED YES Methods and assumptions in
accordance with last valuation
used for Unilever group
accounting purposes in
accordance with Unilever
Accounting Manual.
240
240
ACTUARIAL METHOD AND
APPLICABLE TYPE OF PLAN - FUNDED/ IS THE PLAN A RELEVANT ASSUMPTIONS RELEVANT FOR
COUNTRY PENSION PLAN DB/DC/HYBRID/OTHER UNFUNDED SELLERS' GROUP PLAN? CALCULATING VALUE
------- ------------ ------------------ -------- ---------------------- ------------------------
LUMP SUM RETIREMENT BENEFIT DB UNFUNDED YES Method/assumptions of actuarial
UNDER ALLIANCE 7 COLLECTIVE report at 31/12/99, dated
AGREEMENT 29/9/00
TOP HAT SCHEME DB UNFUNDED YES Method/assumptions of actuarial
report at 31/12/99, dated
29/9/00
FRANCE AGIRC Industry-wide scheme NO
(▇▇▇▇▇▇▇)
ARRCO Industry-wide scheme NO
241
241
ACTUARIAL METHOD AND
APPLICABLE TYPE OF PLAN - FUNDED/ IS THE PLAN A RELEVANT ASSUMPTIONS RELEVANT FOR
COUNTRY PENSION PLAN DB/DC/HYBRID/OTHER UNFUNDED SELLERS' GROUP PLAN? CALCULATING VALUE
------- ------------ ------------------ -------- ---------------------- ------------------------
LONG SERVICE AWARDS OTHER UNFUNDED YES Methods and assumptions in
accordance with last valuation
used for Bestfoods group
accounting purposes.
LUMP SUM RETIREMENT BENEFIT DB UNFUNDED YES Method/assumptions of actuarial
UNDER IAD COLLECTIVE report at 31/08/00, dated
AGREEMENT 04/10/00.
SWEDEN SAF/LO (Previously STP) DC NO
(industry-wide)
SUPS DB FUNDED NO
LONG SERVICE AWARDS OTHER UNFUNDED YES Methods and assumptions in
accordance with last valuation
used for Unilever group
accounting purposes in
accordance with Unilever
Accounting Manual.
242
242
ACTUARIAL METHOD AND
APPLICABLE TYPE OF PLAN - FUNDED/ IS THE PLAN A RELEVANT ASSUMPTIONS RELEVANT FOR
COUNTRY PENSION PLAN DB/DC/HYBRID/OTHER UNFUNDED SELLERS' GROUP PLAN? CALCULATING VALUE
------- ------------ ------------------ -------- ---------------------- ------------------------
FINLAND Polaris - sections A & B DB FUNDED NO
LONG SERVICE AWARDS OTHER UNFUNDED YES Methods and assumptions in
accordance with last valuation
used for Unilever group
accounting purposes in
accordance with Unilever
Accounting Manual.
IRELAND UNILEVER SUPERANNUATION DB FUNDED YES See part 2 of this Annex
(IRELAND) FUND
LONG SERVICE AWARDS OTHER UNFUNDED YES Methods and assumptions in
accordance with last valuation
used for Unilever group
accounting purposes in
accordance with Unilever
Accounting Manual.
243
243
PROJECT COLORADO - VENDORS' GROUP PLANS AND ACTUARIAL ANNEX - PART 2
1. UK
Under the terms of paragraph 2.2 of Part 1 of Schedule 10, we set out below the
actuarial method and assumptions to be used for determining the Value of a
Transferred Relevant Benefit under the UPF.
The Value of a Transferred Relevant Benefit referred to above will be determined
on the UPF benefit pattern as at the Completion Date. Pensionable service will
be taken to the Completion Date and will include service credits for Pensionable
Employees who have elected under Rule C3 of the UPF to purchase such service
credits. Where contributions are still being made in respect of the purchase of
service credits, pensionable service will include only that proportion of the
service credit that the Pensionable Employee would have been entitled to had he
left pensionable service on Completion Date. Allowance will be made for salary
increases projected from the Completion Date up to Normal Retirement Age or
earlier leaving active service, having regard to the effective date of each
member's most recent review of salary prior to the Completion Date.
For members subject to the permitted maximum introduced by the Finance ▇▇▇ ▇▇▇▇,
benefits will be restricted by reference to the appropriate projected cap
figure. The projected level of the cap will be based on the figure for the
2000/2001 tax year (L91,800), increased as described in Schedule A.
For the avoidance of doubt, in calculating the Value of a Transferred Relevant
Benefit, it will be assumed that there is no obligation to equalise benefits for
post 16 May 1990 GMPs.
The Value of a Transferred Relevant Benefit will be determined on the valuation
assumptions summarised in Schedule A.
In the case of spouses' pensions payable on death in service and serious ill
health retirement pensions, the Value of a Transferred Relevant Benefit will be
taken to be in respect of that portion of the benefit which relates to
pensionable service to Completion Date (including the appropriate proportion of
service credits), with no allowance for pensionable service after Completion
Date.
In the case of lump sums payable on death in service, the Value of a Transferred
Relevant Benefit will be taken to be nil.
The Market Adjustment Factor will be taken as 0.806.
244
244
The Agreed Local Adjustment Rate means, in relation to a period, and in respect
of each sum to which this definition applies, the formula found by calculating:
(a) one half of the proportionate change during the period specified of the
FT/S&P Actuaries World Ex UK Pound Sterling Index with 86 per cent. of
the gross dividend income reinvested in the same index at the end of
each calendar month; plus
(b) one half of the proportionate change during the period specified of the
FTSE Actuaries All-Share Total Return Index.
The FT/S&P Actuaries World Ex UK Pound Sterling Index or the FTSE Actuaries
All-Share Total Return Index at a particular date is the Index for that date and
shall be determined by the Sellers' Actuary and agreed by the Purchaser's
Actuary and in default of agreement determined under PARAGRAPH 9 of PART 1 of
Schedule 10.
245
245
SCHEDULE A
SUMMARY OF LIABILITY ASSUMPTIONS
FINANCIAL ASSUMPTIONS
Investment Return 7.5%
General Increases to Pensionable Pay 5.0%
Increases to Non GMP Pensions in Payment 3.5%
and Deferred Benefits including Commutation
Lump Sums
Increases to Post 1988 GMPs in Payment 2.25%
Fixed Revaluation of GMPs 5%
Increases to Earnings Cap 3.5%
DEMOGRAPHIC AND OTHER ASSUMPTIONS
Promotional Increases in Pensionable Pay:
Scale : Salary = 1.00 at age 16 (minimum
age).
Salary then increases in steps of
0.10 from age 16 to age 30 and in
steps of 0.10, 0.09,..., 0.01
from age 30 to age 40.
: Salary = 2.95 at age 40 and
higher ages.
Leaving Service : As shown in the attached table.
Early Retirement from Active Service : As shown in the attached table.
Early Retirement from Deferred Status : At age 60.
Mortality before Retirement
Males : AM80(2) Ultimate, rated down one
year.
Females : AF80 Ultimate, rated down one
year.
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246
SCHEDULE A
SUMMARY OF LIABILITY ASSUMPTIONS (continued)
Mortality in Retirement for Future Pensioners
Males - Retirement in Normal Health : PMA80 (B = 1955) rated one year
higher.
Females - Retirement in Normal Health : PFA80 (B = 1955) rated one year
higher.
Males - Retirement due to Ill Health : PMA80 (B = 1955) rated six years
higher.
Females - Retirement due to Ill Health : PFA80 (B = 1955) rated six years
higher.
Mortality in Payment for Future Dependants:
Male Dependants : PMA80 (B = 1955) rated one year
higher.
Female Dependants : WA80 (B = 1955) rated one year
higher.
Family : 100% of members are assumed to
be married at retirement or
earlier death. No additional
allowance is made for children's
pensions.
: Wives are assumed to be three
years younger than their
husbands.
Commutation : Members are assumed to take a
lump sum of three eightieths of
pensionable pay for each year of
pensionable service.
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247
SCHEDULE A (continued)
TABLE
Probability of leaving employment during the next year
MEN WOMEN
LEAVING RETIREMENT (NORMAL RETIREMENT LEAVING RETIREMENT RETIREMENT
AGE SERVICE HEALTH) (ILL HEALTH) SERVICE (NORMAL HEALTH) (ILL HEALTH)
--- ------- ------- ------------ ------- --------------- ------------
16 0.170 0 0 0.2550 0 0
17 0.165 0 0 0.2475 0 0
18 0.160 0 0 0.2400 0 0
19 0.155 0 0 0.2325 0 0
20 0.150 0 0 0.2250 0 0
21 0.145 0 0 0.2175 0 0
22 0.140 0 0 0.2100 0 0
23 0.135 0 0 0.2025 0 0
24 0.130 0 0 0.1950 0 0
25 0.125 0 0 0.1875 0 0
26 0.120 0 0 0.1800 0 0
27 0.115 0 0 0.1725 0 0
28 0.110 0 0 0.1650 0 0
29 0.105 0 0 0.1575 0 0
30 0.100 0 0 0.1500 0 0
31 0.095 0 0 0.1425 0 0
32 0.090 0 0 0.1350 0 0
33 0.085 0 0 0.1275 0 0
34 0.080 0 0 0.1200 0 0
35 0.075 0 0 0.1125 0 0
36 0.070 0 0.00025 0.1050 0 0.00025
37 0.065 0 0.00050 0.0975 0 0.00050
38 0.060 0 0.00075 0.0900 0 0.00075
39 0.055 0 0.00100 0.0825 0 0.00100
40 0.050 0 0.00125 0.0750 0 0.00125
41 0.045 0 0.00150 0.0675 0 0.00150
42 0.040 0 0.00175 0.0600 0 0.00175
43 0.035 0 0.00200 0.0525 0 0.00200
44 0.030 0 0.00225 0.0450 0 0.00225
45 0.025 0 0.00250 0.0375 0 0.00250
46 0.020 0 0.00300 0.0300 0 0.00300
47 0.015 0 0.00350 0.0225 0 0.00350
48 0.010 0 0.00400 0.0150 0 0.00400
49 0.005 0 0.00450 0.0075 0 0.00450
50 0 0.015 0.00500 0 0.02 0.00500
51 0 0.030 0.00600 0 0.04 0.00600
52 0 0.045 0.00700 0 0.06 0.00700
53 0 0.060 0.00800 0 0.08 0.00800
54 0 0.075 0.00900 0 0.1 0.00900
55 0 0.090 0.01000 0 0.12 0.01000
56 0 0.105 0.01200 0 0.14 0.01200
57 0 0.120 0.01400 0 0.16 0.01400
58 0 0.135 0.01600 0 0.18 0.01600
59 0 0.150 0.01800 0 0.2 0.01800
60 0 0.300 0.02000 0 0.35 0.02000
61 0 0.300 0.02400 0 0.35 0.02400
62 0 0.300 0.02800 0 0.35 0.02800
63 0 0.300 0.03200 0 0.35 0.03200
64 0 0.300 0.03600 0 0.35 0.03600
65 0 1 0 0 1 0
248
248
(exact)
249
249
2. NETHERLANDS
The actuarial method and assumptions in respect of Stichting Unilever
Pensioenfonds "Progress" ("PROGRESS") are as follows:
These pensions shall be calculated in compliance with article 13 of the
rules of Progress as comprised in the Data Room at 9.8.8.1 (the
"PROGRESS RULES"), with the Completion Date being regarded as the date
of termination of participation referred to in section 2 of said
article 13.
In addition the accrued benefits under articles 21 and 22 of the
Progress Rules assuming that the payment of premium as referred to in
section 7 of said articles has been terminated on the Completion Date,
will be transferred on the same basis.
DISCOUNT RATE: 4%.
MORTALITY:
Males: mortality table GBM 1990-1995 ages set back by one year;
Females: mortality table GBV 1990-1995 ages set back by one year.
MATRIMONIAL ASSUMPTIONS:
A partner frequency of 100% is assumed for active members, which
decreases by the assumed mortality rates of the partner after age 65.
It is assumed that the male partner is three years older than the
female partner.
It is assumed that the potential orphan's pensions are covered by an
annual premium at 16 per thousand.
OPTIONAL PENSIONS:
Pensionable Employees who qualify for early retirement under article 7
of the Progress Rules are assumed to retire at age 60.
The actuarial effects of other options on pensions are disregarded.
AGES:
Ages will be rounded to nearest full months.
250
250
FOREIGN STATE PENSIONS:
Where applicable foreign state pensions will be subtracted from the
accrued benefits under the Progress Rules.
EXPENSES:
Net present values will be increased by a 2% loading for future
administrative expenses.
SALARY INCREASES
For the avoidance of doubt, there is no allowance for future salary
increases.
AGREED LOCAL ADJUSTMENT RATE: interest based on the relevant "U -
rendement" as published by the Dutch federation of life insurance
companies. The relevant "U-rendement" for this purpose is fixed for a
calendar year and is the rate in force at January 1 of the calendar
year, and shall be determined by the Sellers' Actuary and agreed by the
Purchaser's Actuary or, in default of agreement, determined under
PARAGRAPH 9 of PART 1 of Schedule 10.
251
251
3. BELGIUM
The actuarial method and assumptions in respect of the Pensioenfonds
"Union"/Fonds de Pension "Union" are as follows:
METHOD: as described in the plan rules in the Data Room:
- Pensioenfonds "Union"/Fonds de Pension
"Union" - Article 13.
ASSUMPTIONS:
Retirement age : 65
Discount rate : 4%
Mortality tables : mr for men and fr for women
Note : for participants having reached age 50 at
the Completion Date, the special early
retirement provisions of article 14
(Pensioenfonds "Union"/Fonds de Pension
"Union") of the plan rules are recognized.
Article 14 provides that, for participants
who leave the plan as from age 50, no
reduction is applied to the deferred accrued
pension between 60 and 65. Between age 55 and
60 a linear reduction of 5% p.a. is applied.
In addition, prior to age 55, an actuarial
reduction is applied as from age 55.
Salary increases : For the avoidance of doubt, there is no
allowance for future salary increases.
AGREED LOCAL ADJUSTMENT RATE: the EURIBOR 6 months rate, which shall
be determined by the Sellers' Actuary
and agreed by the Purchaser's Actuary
or, in default of agreement,
determined under PARAGRAPH 9 of PART 1
of Schedule 10.
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4. IRELAND
Under the terms of PARAGRAPH 2.2 of PART 1 of Schedule 10, we set out below the
actuarial method and assumptions to be used for determining the Value of a
Transferred Relevant Benefit.
The Transferred Relevant Benefit will be the accrued pension or contingent
spouses'/children's pension determined by reference to the rules of the Unilever
Superannuation (Ireland) Pension Fund (the "US(I)F"). Pensionable Service will
be taken to the Completion Date. Allowance will be made for salary increases
projected from the Completion Date up to Normal Retirement Age or earlier
leaving active service, having regard to the effective date of each member's
most recent review of salary prior to the Completion Date.
The Value of a Transferred Relevant Benefit will be determined using the
valuation assumptions summarised in Schedule A.
In the case of spouses' pensions payable on death in service and serious
ill-health retirement pensions, the Value of the Transferred Relevant Benefit
will be taken to be in respect of that portion of the benefit which relates to
pensionable service to Completion Date, with no allowance for pensionable
service after Completion Date.
In the case of lump sums payable on death in service, the Value of a Transferred
Relevant Benefit will be taken to be nil.
The Market Adjustment Factor shall be 1.0.
The Agreed Local Adjustment Rate is the return, income and capital (positive or
negative), recorded on the investments of the US(I)F during the period
determined by the Sellers' Actuary and agreed by the Purchaser's Actuary or, in
default of agreement, determined under PARAGRAPH 9 of PART 1 of Schedule 10.
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253
SCHEDULE A
SUMMARY OF LIABILITY ASSUMPTIONS
FINANCIAL ASSUMPTIONS
Investment Return 7.0% p.a.
General Increases to Pensionable Pay 5.0% p.a.
Increases in State Pension 4.0% p.a.
Increases in Pensions in Payment 3.0% p.a.
DEMOGRAPHIC AND OTHER ASSUMPTIONS
Promotional Increases in Pensionable Pay
Scale
- For Salaried Staff Salary scale as shown in
Schedule B
- Non-Salaried Staff Nil
Leaving Service Decrement shown in Schedule B
Ill-Health Retirement Decrement shown in Schedule B
Early Retirement from Deferred Status At age 65
Mortality before Retirement
- Males A67/70 Ultimate
- Females A67/70 ultimate, rated down
three years
Mortality in Retirement for Future Pensioners
Males - Retirement in Normal Health PA(90) rated down two years
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254
Females - Retirement in Normal Health PA(90) rated down two years
Males - Ill-Health Retirement PA(90) rated up two years
Females - Ill-Health Retirement PA(90) rated up two years
Mortality in Payment for Future Dependants
- Male Dependants PA(90) rated down two years
- Female Dependants PA(90) rated down two years
Family Statistics
- Proportion Married 85% of males and 70% of
females are assumed to be
married at retirement or
earlier death.
Children's Pensions 30% loading on the
spouse's pension
Age Differential Wives are assumed to be 3
years younger than their
husbands.
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255
SCHEDULE B
US(I)F DECREMENTS & SALARY SCALE
Decrement Tables
Male Female Male/Female Salary Scale
Leaving Leaving Retirement Ill health Staff Members Only
Age Service Service (Normal Health) Retirement Male Female
15 0 0 0 0 100 100
16 0 0 0 0 100 100
17 0 0 0 0 100 100
18 0 0 0 0 100 100
19 0 0 0 0 100 100
20 0 0 0 0.0002 100 100
21 0.076 0.1348 0 0.0002 113 106
22 0.075 0.1429 0 0.0002 124 112
23 0.074 0.1499 0 0.0002 133 117
24 0.073 0.1564 0 0.0002 143 122
25 0.072 0.1619 0 0.0002 153 127
26 0.0705 0.1649 0 0.0002 163 131
27 0.069 0.1649 0 0.0002 172 134
28 0.0675 0.1604 0 0.0002 181 136
29 0.066 0.1499 0 0.0002 189 138
256
256
30 0.0645 0.1319 0 0.0005 197 140
31 0.063 0.1139 0 0.0005 204 141
32 0.0615 0.0974 0 0.0005 211 142
33 0.06 0.084 0 0.0005 218 143
34 0.0585 0.0735 0 0.0005 225 144
35 0.057 0.066 0 0.0005 232 145
36 0.0555 0.06 0 0.0005 238 146
37 0.054 0.0555 0 0.0005 244 147
38 0.0525 0.0525 0 0.0005 250 148
39 0.0505 0.0495 0 0.0005 256 149
40 0.0485 0.045 0 0.002 261 150
41 0.0465 0.0405 0 0.002 266 151
42 0.044 0.036 0 0.002 271 152
43 0.0415 0.0315 0 0.002 276 153
44 0.039 0.027 0 0.002 279 154
45 0.036 0.0225 0 0.002 283 155
46 0.033 0.018 0 0.002 286 156
47 0.0299 0.0135 0 0.002 288 157
48 0.0269 0.009 0 0.002 290 158
49 0.0239 0.0045 0 0.002 292 159
50 0.0209 0 0 0.008 294 160
51 0.018 0 0 0.008 296 161
52 0.0134 0 0 0.008 297 162
53 0.009 0 0 0.008 298 163
257
257
54 0.0045 0 0 0.008 298 164
55 0 0 0.01 0.008 298 164
56 0 0 0.0202 0.008 298 164
57 0 0 0.0515 0.008 298 164
58 0 0 0.0652 0.008 298 164
59 0 0 0.093 0.008 298 164
60 0 0 0.2564 0.02 298 164
61 0 0 0.3448 0.02 298 164
62 0 0 0.3947 0.02 298 164
63 0 0 0.3487 0.02 298 164
64 0 0 0.3333 0.02 298 164
65 (exact) 0 0 1 0 298 164
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258
SCHEDULE 11
(Employees)
PART 1: UNITED KINGDOM
1. If any UK Employee is made redundant by, or ceases on the grounds of
Ill-Health to be employed by, any member of the Purchaser's Group (or
any person to whom the Business or part thereof or any member of the
Purchaser's Group is transferred) within three years of the Completion
Date the Purchaser shall, subject to paragraph 5 below:
(a) procure that there shall be paid to such UK Employee a sum of
money as redundancy pay or Ill-Health pay which shall be
calculated in such a manner as to be no less favourable than a
calculation done in accordance with the terms applicable to
the particular UK Employee comprised in the Data Room; and
(b) comply with the provisions of paragraphs 2 and 3 in respect of
such UK Employee, to the extent applicable.
2. Subject to paragraph 3, if any UK Employee (whether or not a
Transferred Employee (as defined in Schedule 10)) to whom the
provisions of paragraph 1 apply is at the date of redundancy or
cessation of employment on grounds of Ill-Health:
(a) aged 50 or more; and
(b) has completed at least 10 years' Pensionable Service (as
defined in paragraph 4),
then the payment to be made to such UK Employee shall be calculated in
accordance with the early retirement terms comprised in the Data Room
(the "EARLY RETIREMENT TERMS").
3. (a) If:
(i) the date of redundancy or cessation of employment on
grounds of Ill-Health referred to in paragraph 2 is
before the Scheme Change Date in respect of the UPF
(each such expression as defined in Schedule 10); and
(ii) the UK Employee is at the date of such redundancy or
cessation of employment on grounds of Ill-Health in
Pensionable Service in the UPF,
then the Purchaser shall pay an amount of cash (the "CASH
SUM") to the UPF and/or Unilever UK Central Resources Limited
in the
259
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proportions specified by the Sellers to the Purchaser in
writing being an amount that is in aggregate equal to the
value of additional benefits under paragraph 2 using the
assumptions in respect of the UPF set out in the Actuarial
Annex (as defined in Schedule 10);
(b) The proportion of the Cash Sum which the Sellers direct to be
paid by the Purchaser to the UPF will be received by the UPF
as agent for the Purchaser insofar as such proportion does not
exceed in aggregate the benefits which the Sellers and the
trustee of the UPF agree may be provided by the UPF and in its
own right as regards any excess. The Sellers shall procure
that the UPF makes payment of such benefits to the relevant UK
Employees as the Sellers and the trustee of the UPF shall
agree may be provided by the UPF in respect of the proportion
of the Cash Sum which the Sellers direct to be paid by the
Purchaser to the UPF;
(c) The proportion of the Cash Sum which the Sellers direct to be
paid by the Purchaser to Unilever UK Central Resources Limited
will be received by Unilever UK Central Resources Limited on
the basis described in (i) or (ii) below on the understanding
that Unilever UK Central Resources Limited will be wholly
responsible for the payment to the relevant UK Employees of
the balance of the benefits not paid to the relevant UK
Employees by the UPF under paragraph 3(b):
(i) as agent for the Purchaser insofar as the balance of
the benefits actually payable to the relevant UK
Employees does not exceed in aggregate the proportion
of the Cash Sum so received by Unilever UK Central
Resources Limited; and
(ii) in its own right as regards any excess.
4. "PENSIONABLE SERVICE" for the purpose of paragraph 2 means service
which is pensionable service under the UPF and under the Purchaser's
Group Plan in question (as defined in Schedule 10) and includes linked
qualifying service. Pensionable Service shall be construed in
accordance with Section 70 of the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and linked
qualifying service shall be construed in accordance with Section 179 of
the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇.
5. For the purposes of this Part 1 of this Schedule:
(a) a UK Employee shall be redundant where:
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(i) he or she is entitled to a redundancy payment under
the Employment Rights ▇▇▇ ▇▇▇▇; or
(ii) his or her employment is terminated at the request of
his or her employer otherwise than in circumstances
in which paragraph (i) applies; and
(b) "ILL-HEALTH" means ill-health such that the individual
concerned is unable to follow his normal occupation with his
employer.
PART 2: BELGIUM
The Sellers and the Purchaser undertake to inform and consult all works councils
involved in the transactions contemplated by this Agreement in accordance with
this Agreement.
PART 3: FRANCE
The Purchaser undertakes to respond to questions posed by the works council of
the Generale Condimentaire S.A.S. and/or Bestfoods France S.A. and/or Fralib
Sourcing Unit S.A. in relation to the transactions envisaged by this Agreement
(including, if so reasonably required by any such works council, attending
meetings in order to respond to such questions).
PART 4: REPUBLIC OF IRELAND
1. If any Irish Employee is made redundant by, or ceases on the grounds of
Ill-Health to be employed by, any member of the Purchaser's Group (or
any person to whom the Business or part thereof or any member of the
Purchaser's Group is transferred) within three years of the Completion
Date the Purchaser shall, subject to paragraph 5 below:
(a) procure that there shall be paid to such Irish Employee a sum
of money as redundancy pay or Ill-Health pay which shall be
calculated in such a manner as to be no less favourable than a
calculation done in accordance with the terms applicable to
the particular Irish Employee comprised in the Data Room; and
(b) comply with the provisions of paragraphs 2 and 3 in respect of
such Irish Employee, to the extent applicable.
2. Subject to paragraph 3, if any Irish Employee (whether or not a
Transferred Employee (as defined in Schedule 10)) to whom the
provisions of paragraph 1 apply is at the date of redundancy or
cessation of employment on grounds of Ill-Health:
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(a) aged 55 or more; and
(b) has completed at least 10 years' Pensionable Service (as
defined in paragraph 4),
then the payment to be made to such Irish Employee shall be calculated
in accordance with the early retirement terms comprised in the Data
Room (the "EARLY RETIREMENT TERMS").
3. (a) If:
(i) the date of redundancy or cessation of employment on
grounds of Ill-Health referred to in paragraph 2 is
during the temporary period referred to in paragraph
7 of Part 1 of Schedule 10 in respect of the Unilever
Superannuation (Ireland) Fund (the "US(I)F"); and
(ii) the Irish Employee is at the date of such redundancy
or cessation of employment on grounds of Ill-Health
in Pensionable Service in the US(I)F,
then the Purchaser shall pay an amount of cash (the "CASH
SUM") to the US(I)F and/or Unilever Management Services
(Ireland) Limited in the proportions specified by the Sellers
to the Purchaser in writing being an amount that is in
aggregate equal to the value of additional benefits under
paragraph 2 using the assumptions in respect of the US(I)F set
out in the Actuarial Annex (as defined in Schedule 10);
(b) The proportion of the Cash Sum which the Sellers direct to be
paid by the Purchaser to the US(I)F will be received by the
US(I)F as agent for the Purchaser insofar as such proportion
does not exceed in aggregate the benefits which the Sellers
and the trustee of the US(I)F agree may be provided by the
US(I)F and in its own right as regards any excess. The Sellers
shall procure that the US(I)F makes payment of such benefits
to the relevant Irish Employees as the Sellers and the trustee
of the US(I)F shall agree may be provided by the US(I)F in
respect of the proportion of the Cash Sum which the Sellers
direct to be paid by the Purchaser to the US(I)F;
(c) The proportion of the Cash Sum which the Sellers direct to be
paid by the Purchaser to Unilever Management Services
(Ireland) Limited will be received by Unilever Management
Services (Ireland) Limited on the basis described in (i) or
(ii) below on the understanding that Unilever Management
Services (Ireland) Limited will be wholly responsible for the
payment to
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the relevant Irish Employees of the balance of the benefits
not paid to the relevant Irish Employees by the US(I)F under
paragraph 3(b):
(i) as agent for the Purchaser insofar as the balance of
the benefits actually payable to the relevant Irish
Employees does not exceed in aggregate the proportion
of the Cash Sum so received by Unilever Management
Services (Ireland) Limited; and
(ii) in its own right as regards any excess.
4. "PENSIONABLE SERVICE" for the purpose of paragraph 2 means service
which is pensionable service under the US(I)F and under the Purchaser's
Group Plan in question (as defined in Schedule 10).
5. For the purposes of this Part 4 of this Schedule:
(a) a Irish Employee shall be redundant where:
(i) he or she is entitled to a statutory redundancy
payment; or
(ii) his or her employment is terminated at the request of
his or her employer otherwise than in circumstances
in which paragraph (i) applies;
(b) "ILL-HEALTH" means ill-health such that the individual
concerned is unable to follow his or her normal occupation
with his or her employer; and
(c) "IRISH EMPLOYEES" means Employees employed by a member of the
Sellers' Group incorporated in the Republic of Ireland.
PART 5: THE NETHERLANDS
1. The Sellers and the Purchaser acknowledge that:
(i) the obligations referred to in Clause 2(a)(iii) in so far as
they relate to the Netherlands will, without prejudice to
Clause 2(f) require the parties to procure the taking of all
steps reasonably necessary or desirable to comply with the
applicable provisions of the Dutch Works Council Act and the
Dutch Merger Code, including:
(a) the obtaining of advice from the competent works
council under the Works Council Act; and
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(b) the carrying out of consultation with the competent
trade unions under Chapter II of the Merger Code; and
(ii) reasonable changes to certain relevant provisions of this
Agreement may be necessary or desirable as a result of
consultations with employee representatives as required by the
Dutch Works Council Act and the Dutch Merger Code PROVIDED
THAT:
(a) such changes will not result in terms less favourable
to the relevant employees than those contained in
this Agreement; and
(b) the position of the Sellers or any other member of
the Sellers' Group will not be adversely affected by
any such changes.
2. The Sellers shall use their reasonable endeavours to ensure that the
position of the Purchaser or any other member of the Purchaser's Group
will not be adversely affected by any of the changes referred to at
1.(ii) above.
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SCHEDULE 12
(VAT)
1. The Sellers and the Purchaser shall use all reasonable endeavours to
procure that the supply of those Business Assets under this Agreement
which would otherwise be chargeable to VAT (but for the sale being
treated, for the purposes of applicable VAT legislation, as a transfer
of all or part of the assets of a business as a going concern as
hereinafter mentioned) and which the Sellers and the Purchaser consider
should qualify as a transfer of all or part of the assets of a business
as a going concern for the purposes of applicable VAT legislation is so
treated by the relevant Tax Authority, except that the Sellers shall
not be required by virtue of this sub-clause to make any appeal to any
court against any determination of the relevant Tax Authority that that
sale does not fall to be so treated.
2. The Purchaser declares that it (or, if it procures that the Business
Assets referred to in paragraph 1 are acquired by another person, that
other person) is or will as a result of such acquisition become a
taxable person for the purposes of VAT and the Purchaser undertakes to
procure that the Purchaser or such person is either duly registered for
VAT purposes in the relevant jurisdiction or jurisdictions or a member
of a group of companies for VAT purposes of which the representative
member is duly registered for those purposes in the relevant
jurisdiction or jurisdictions, in either case by Completion, and the
Purchaser declares that the Purchaser or such person shall upon and
immediately after Completion use the Business Assets referred to in
paragraph 1 to carry on the same kind of business (whether or not as
part of any existing business of the Purchaser or such other person) as
that carried on by the relevant Business Seller or Business Sellers in
relation to the Business Assets referred to in paragraph 1 owned by
such Business Seller or Business Sellers before Completion.
The Sellers represent and warrant to the Purchaser and any relevant
Designated Purchaser that each of the Business Sellers is registered
for the purposes of VAT.
3. The Sellers shall be entitled if the relevant VAT legislation so
permits to retain all those records of the Business which under any
relevant VAT legislation are required to be preserved after Completion
and shall request the relevant Tax Authority so to direct in accordance
with applicable VAT legislation. The Purchaser shall render all
reasonable assistance to the Sellers in connection with such a request.
If the relevant Tax Authority declines so to direct, the Sellers shall
deliver to the relevant Designated Purchaser such
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records and paragraph 4 below shall apply to those records as if
references therein to "the Sellers" were replaced with "the Purchaser"
and references therein to "the Purchaser" were replaced with "the
Sellers".
4. The Sellers shall for such period as may be required by applicable law
preserve in good order and for such period as shall be required by law
all the records of the Business that it is entitled to retain pursuant
to paragraph 3 and, upon being given reasonable notice by the Purchaser
or its agents, the Sellers shall make those records available (without
charge) and give reasonable access to the Purchaser or its agents for
inspection or copying (at the Purchaser's expense).
5. If, notwithstanding the provisions of paragraph 1, the relevant Tax
Authority shall determine that VAT is chargeable in respect of the
supply of all or any of the Business Assets referred to in paragraph 1
under this Agreement, the Sellers shall notify the Purchaser of that
determination within five Business Days of its being so advised by the
relevant Tax Authority and the Purchaser (on behalf of the relevant
Designated Purchaser) shall pay to the Sellers (on behalf of the
relevant Business Seller or Business Sellers) by way of additional
consideration a sum equal to the amount of VAT (together, where the
declarations made by the Purchaser in paragraph 2 above are incorrect
or the Purchaser has failed to comply with its undertakings in
paragraph 2 above, with any interest and/or penalties relating thereto)
determined by the relevant Tax Authority to be so chargeable on
Completion or, if later, within five Business Days of the Sellers'
notifying the Purchaser of that determination (against delivery by the
Sellers on behalf of the relevant Business Seller or Business Sellers
of an appropriate tax invoice for VAT purposes).
6. Subject to paragraph 11 below, at Completion, the Purchaser (on behalf
of the relevant Designated Purchaser) shall pay to the Sellers (on
behalf of the relevant Business Seller or Business Sellers) by way of
additional consideration for the Business Assets a sum equal to the
amount of any VAT chargeable on the supply of the Business Assets which
are not referred to in paragraph 1 against delivery by the Sellers (on
behalf of the relevant Business Seller or Business Sellers) of an
appropriate tax invoice for VAT purposes. If the Purchaser (on behalf
of the relevant Designated Purchaser) pays to the Sellers (on behalf of
the relevant Business Seller or Business Sellers) any sum as described
above and the relevant Tax Authority subsequently confirms that no VAT
is chargeable on the supply of any Business Assets to which that sum
(or any part of that sum) related and repays to the Sellers or another
member of the Sellers' Group any VAT accounted for in respect of such
Business Assets, the Sellers (on
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behalf of the relevant Business Seller or Business Sellers)
shall pay to the Purchaser (on behalf of the relevant
Designated Purchaser):
(a) such part of that sum paid by the Purchaser pursuant to this
paragraph 6 as relates to the supply of such Business Assets;
and
(b) any interest or other amounts received from the relevant Tax
Authority and referable to the amount previously taken to be
VAT charged in respect of the supply of such Business Assets.
7. The Sellers will procure that the Company which, prior to Completion,
is treated (for the purposes of Dutch VAT legislation) as constituting,
together with one or more other persons, a single taxable person in the
Netherlands (the "VAT GROUP") will be excluded from the VAT Group with
effect from Completion.
8. Where any part of the European Culinary Brands Business is being
carried on by the Company, the Sellers shall arrange for all VAT
returns for the VAT Group for any period prior to Completion to be
prepared and submitted to the relevant Tax Authority and the Purchaser
shall procure that the Company provides to the Sellers or their agents
all information as may be required for the preparation of such returns.
9. The Purchaser shall procure that the Company shall promptly upon the
written request of any Seller or its agent provide such information
(including copies of documents, where relevant) requested by any
Business Seller to enable it to make full replies to any enquiries
raised by any relevant Tax Authority in respect of VAT returns made up
to Completion.
10. The Sellers shall indemnify on an after Tax basis the Purchaser (and if
the Purchaser procures that the Business Assets referred to in
paragraph 1 are acquired by another person, that other person) against
any liabilities in respect of any VAT suffered in the Netherlands in
respect of the Business Assets by reference to transactions, actions or
omissions occurring (or deemed to occur) on or before Completion or in
respect of any period ending on or before Completion except to the
extent that the Purchaser or such person is indemnified in respect of
such VAT under another provision of this Agreement.
11. Notwithstanding paragraph 6 above:
(a) at Completion, the Purchaser (on behalf of Erasco GmbH) shall
be entitled to assign to the Sellers (on behalf of Union
Deutsche Lebensmittelwerke GmbH ("UDL") a right to a German
VAT refund of Euro 10,671,680 to which Erasco GmbH or the
representative member of the German VAT group of which Erasco
GmbH is a member is entitled instead of paying an amount equal
to the German VAT of Euro 10,671,680 arising on the sale by
UDL of its business goodwill and brands and the tax invoices
for German VAT purposes that are required to be delivered at
Completion in respect of the assets to be sold by UDL pursuant
to this Agreement shall reflect such assignment. In order to
carry out this assignment, the Purchaser shall deliver to the
Sellers an assignment agreement executed by Erasco GmbH or, as
the case may be, the representative member of the German VAT
group of which Erasco GmbH is a member, assigning to UDL (or
the representative member of the German VAT group of which UDL
is a member) a right to a refund of German VAT in the amount
set out above. The Sellers shall procure that UDL (or the
representative member of the German VAT group of which UDL is
a member) shall at, or as soon as reasonably practicable (and
in any event prior to 18th May, 2001) after, Completion sign
such assignment agreement and return the original of such
assignment agreement to Erasco GmbH or, as the case may be,
the representative member of the German VAT group of which
Erasco GmbH is a member; and
(b) provided that the Sellers have complied with their obligations
under paragraph (a) above, the Purchaser will procure that, on
or before 10th June, 2001, the representative member of the
German VAT group of which Erasco GmbH is a member will file
its German VAT return in respect of May, 2001 and that, on or
before 15th June, 2001, the representative member of the
German VAT group of which Erasco GmbH is a member will confirm
to UDL or the representative member of the German VAT group of
which UDL is a member that the aggregate entitlement of the
German VAT group of which Erasco GmbH is a member to a refund
of German VAT as set out in that return is at least Euro
10,671,680. If it transpires that, as at 10th June, 2001, the
amount which UDL (or the representative member of the German
VAT group of which UDL is a member) is entitled to receive by
way of German VAT refund pursuant to the assignment referred
to in paragraph 11(a) above is less than Euro 10,671,680, the
Purchaser (on behalf of Erasco GmbH) shall pay to the Sellers
(on behalf of UDL) an amount equal to the shortfall against
delivery by the Sellers (on behalf of UDL) of an appropriate
tax invoice for German VAT purposes and a release in writing
by UDL (or the representative member of the German VAT group
of which UDL is a member) of the VAT assignment referred to in
paragraph 11(a) above to the extent of the shortfall.
12. At Completion, the Purchaser (on behalf of ▇▇▇▇▇▇▇▇ Generale
Condimentaire) shall pay to the Sellers (on behalf of Bestfoods France
Societe Industrielle S.A.) the sum of Euro 55,034.84 and to the Sellers
(on behalf of Generale Condimentaire S.A.S.) the sum of Euro 444,082.80
in each case in respect of French VAT required to be repaid by those
Business Sellers as a result of their sale of certain Business
Properties pursuant to this Agreement and the Sellers (on behalf of
each of Bestfoods France Societe Industrielle S.A. and Generale
Condimentaire S.A.S.) will provide to the Purchaser (on behalf of
▇▇▇▇▇▇▇▇ Generale Condimentaire) appropriate tax invoices for French
VAT purposes in respect of those payments.
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SCHEDULE 13
IT SEPARATION
1. NORDIC REGION
(A) The Sellers will, with the support and assistance of the Purchaser,
procure the creation of a stand-alone organisation consisting of (i) an
IT System (excluding networks) for that part of the Business in Sweden,
Denmark and Finland (ii) personnel to run such IT System (excluding
networks) and the order processing, invoicing and financial accounting
functions for the Business in these countries (the "STAND ALONE
ORGANISATION"). The Stand Alone Organisation will be based in the
Business Property in Kristianstad. In order to achieve this, the
Sellers will provide IT and financial project resources. Responsibility
for the management of the Stand Alone Organisation will be transferred
to the relevant Designated Purchaser when the Purchaser and the Sellers
mutually agree that the Stand Alone Organisation is (i) operating to
the same capacity, performance and functionality as the equivalent of
the Stand Alone Organisation as operated within the Business on the
date of this Agreement and (ii) is independent of the Sellers' Group's
IT Systems and at such point the Sellers shall transfer, or shall
procure the transfer of, all of the IT Systems included in the Stand
Alone Organisation excluding networks to a Designated Purchaser.
(B) Nothing shall oblige the Sellers to provide any element of the Stand
Alone Organisation with a greater level of functionality, performance
or capacity than the levels enjoyed by that part of the Business in
Sweden, Denmark and Finland on the date of this Agreement.
(C) For the avoidance of doubt, it is understood that the current Swedish
and Finnish IT Systems used by the Business will not be integrated with
each other but will be transferred to the Business Property in
Kristianstad as two separate IT Systems which will have been separated
from the existing systems of the Swedish and Finnish businesses
PROVIDED THAT nothing shall oblige the Sellers to provide such systems
with a greater level of functionality, performance or capacity than the
levels of the existing systems.
(D) The Sellers shall consult the Purchaser on key decisions in relation to
the creation of the Stand Alone Organisation including the selection
and purchase of hardware and infrastructure.
(E) If the Stand Alone Organisation is not operating to the same capacity,
performance and functionality as the equivalent of the Stand Alone
Organisation as operated within the relevant part of the Business on
the date of this Agreement by the Completion Date, then the project to
create a Stand Alone Organisation will continue and
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transitional services will be provided in Sweden, Denmark and Finland
as set out in the Transitional Services Agreement.
2. NETHERLANDS AND FRENCH FACTORY IT SEPARATIONS
(A) The Sellers shall procure as soon as reasonably practicable after
Completion and in any event by no later than 12 months from Completion
the creation of the following stand-alone computer systems:
(i) the separation of the MFG-Pro manufacturing and SAP business
solutions to the equivalent capacity, performance and
functionality as currently used to run the factory at Utrecht;
and
(ii) the separation of the BPCS systems to the equivalent capacity,
performance and functionality as currently used by Generale
Condimentaire S.A.S. to run the factory at Grande Synthe,
France
and responsibility for the management of such computer systems will be
transferred to the Purchaser when the Purchaser and the Sellers
mutually agree that the stand-alone computer systems are running
adequately on a stand-alone basis PROVIDED THAT nothing shall oblige
the Sellers to provide any such systems which have a greater level of
functionality, performance or capacity than the levels such systems
have at the date of this Agreement.
(B) As soon as the stand alone computer systems described in paragraph 2(a)
above are created and separated from the IT Systems of the Sellers'
Group, the Sellers shall transfer, or shall procure the transfer of,
all of the IT Systems included in such stand alone computer systems
(excluding networks) to a Designated Purchaser.
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Signed by ▇▇▇▇ ▇▇▇▇▇▇▇* )
as duly authorised attorney )
for and on behalf of ) ▇. ▇▇▇▇▇▇▇
UNILEVER N.V. ) /s/________________________
Signed by ▇▇▇▇ ▇▇▇▇▇▇▇ )
as duly authorised attorney )
for and on behalf of ) ▇. ▇▇▇▇▇▇▇
UNILEVER PLC ) /s/________________________
Signed by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇** )
as duly authorised attorney )
for and on behalf of ) ▇. ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇ SOUP COMPANY ) /s/________________________
Note: The original Sale and Purchase Agreement was signed in London by the
individuals noted above. The Amendment Agreement dated 4th May, 2001
between Unilever N.V., Unilever PLC and ▇▇▇▇▇▇▇▇ Soup Company was
signed in Rotterdam by ▇▇▇▇ ▇▇▇▇▇ as attorney for Unilever N.V., by
▇▇▇ ▇▇▇▇▇▇▇▇ as attorney for Unilever PLC and by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as
attorney for ▇▇▇▇▇▇▇▇ Soup Company.
CEO11270004 1.doc
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* Financial Director
** Vice President - Corporate Development and Strategic Planning