EXHIBIT 2.1
Dated November 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (1)
ASPECT VISION HOLDINGS LIMITED (2)
AND
THE ▇▇▇▇▇▇ COMPANIES, INC. (3)
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Umbrella Agreement
for the sale and purchase
of the issued share capital
of Aspect Vision Care Limited and other companies
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T + 44(0)171-367 3000
F + 44(0)171-367 2000
TABLE OF CONTENTS
1. Definitions and interpretation......................................1
2. Condition..........................................................10
3. Sale and purchase..................................................11
4. Consideration......................................................11
5. Completion.........................................................12
6. Completion Accounts................................................13
7. Warranties.........................................................14
8. Limitation of Vendor's liability...................................15
9. Indemnities........................................................16
10. Set Off............................................................16
11. TCC Stock Options and the Scheme...................................17
12. Environmental Indemnity............................................18
13. RTPA...............................................................19
14. Announcements......................................................19
15. Assignment.........................................................20
16. Remedies cumulative................................................20
17. Waiver, variation and release......................................20
18. Costs and expense..................................................21
19. Notices............................................................21
20. Counterparts.......................................................22
21. Language...........................................................22
22. Invalidity.........................................................22
23. Agreement to continue in full force and effect.....................22
24. Confidentiality....................................................23
25. Governing law and jurisdiction.....................................23
Schedule 1 The Sellers.................................................25
Part 1 - Aspect Vision Care Limited...............................25
Part 2 - New Focus Health Care Limited............................25
Part 3 - Contact Lens Technologies Limited........................26
Part 4 - Aspect Vision Italia s.r.l...............................26
Schedule 2 Part 1 - The Companies......................................27
Part 2 - The Subsidiaries.........................................31
Schedule 3 Properties..................................................35
Part 1 - General description......................................35
Part 2 - Leases...................................................36
Schedule 4.............................................................37
Schedule 5 The Warranties..............................................38
Schedule 6 Basis for preparation of the Completion Accounts............71
Schedule 7 Completion Part 1 - Delivery of documents by Vendor.........74
Part 2 - Actions by Vendor......................................74
Part 3 - Delivery of documents and actions by the Purchaser.....75
Part 4 - Delivery of documents and actions by TCC...............75
Schedule 8 Limitation of Vendor's liability............................76
Part 1 - General limitations...........................................76
Part 2 - Financial limitations under the Warranties,
Indemnities and the Deed of Tax Covenant.........................77
Part 3 - Time limitations under the Warranties (other than Tax
Warranties and Environmental Warranties).........................78
Part 4 - Time limitations under the Tax Warranties...............78
Part 5 - Environmental Warranties and Environmental Indemnity....79
Part 6 - Other provisions........................................79
Schedule 9 Part 1 - Exhibits...........................................80
Part 2 - Documents in the agreed terms...........................80
Schedule 10 TCC Stock Options..........................................81
THIS AGREEMENT is made the day of November 1997
BETWEEN:-
(1) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ of Beacon Wey, The Hangers, Bishops Waltham Hampshire S032
1FZ (the "Vendor");
(2) ASPECT VISION HOLDINGS LIMITED (registered in England with number 3448379)
whose registered office is at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ (the "Purchaser"); and
(3) THE ▇▇▇▇▇▇ COMPANIES, INC. a company incorporated in Delaware whose
principal office is at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ("TCC").
WHEREAS:-
(A) The Vendor is a shareholder in and/or a director of each of the Companies
(as defined below).
(B) The Purchaser wishes to purchase, directly or indirectly, the entire issued
share capitals of the Companies from the Sellers (as defined below) and the
Vendor has agreed to use all reasonable endeavours to procure the sale of
the Companies in each case upon and subject to the terms and conditions of
this Agreement.
WHEREBY IT IS AGREED as follows:-
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following words and expressions have the meanings
set opposite them:
"ACCOUNTS": the audited balance sheet as at the Balance Sheet
Date and the audited profit and loss account for
each Group Company and the notes, reports,
statements and other documents which are or would
be required by law to be annexed to the Accounts
of the company concerned and to be laid before
such company in general meeting for such
Financial Year, a copy of each of which is
contained in EXHIBIT A;
"ACCOUNTING STANDARDS": statements of standard accounting practice
(including financial reporting standards) issued
pursuant to section 256, CA 85 by the ASB;
"AGREED PROPORTIONS": has the meaning set out in clause 4 of the Deed
of Contribution;
"ASB": Accounting Standards Board Limited (registered
number 2526824) or such other body prescribed by
the Secretary of State from time to time pursuant
to section 256, CA 85;
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"AFFILIATE": in relation to any body corporate, any Holding
Company or subsidiary undertaking of such body
corporate or any subsidiary undertaking of a
Holding Company of such body corporate;
"AGREEMENT": this Agreement including its recitals and the
schedules hereto but not the Deed of Tax Covenant
or the Exhibits;
"AVC AGREEMENT": the agreement in the agreed terms to be entered
into at Completion between the Purchaser and
those Sellers holding shares in Aspect Vision
Care Limited relating to the sale and purchase of
those Shares;
"AUDITORS": ▇▇▇▇▇▇▇ ▇▇▇▇ Chartered Accountants;
"AVI AGREEMENT": the agreement in the agreed terms to be entered
into at Completion between the Purchaser and
those Sellers holding shares in Aspect Vision
Italia s.r.l relating to the sale and purchase of
those Shares;
"BALANCE SHEET DATE": 31 March 1997;
"BENEFICIARIES": means any and all of the Purchaser, TCC and the
Companies and in each case their directors,
officers, employees, agents and shareholders;
"BUSINESS": collectively the businesses of each Group Company
as carried on at any time in the twelve months
prior to the date hereof;
"BUSINESS DAY": a weekday (other than a Saturday) when banks are
open for business in London;
"CA 85": Companies ▇▇▇ ▇▇▇▇;
"CAA": Capital Allowances ▇▇▇ ▇▇▇▇;
"CASH CONSIDERATION": the cash consideration payable for the Shares;
"CLAIM AMOUNT": has the meaning set out in CLAUSE 10.2;
"CLT AGREEMENT": the agreement in the agreed terms to be entered
into at Completion between the Purchaser and
those Sellers holding shares in Contact Lens
Technologies Limited relating to the sale and
purchase of those Shares;
"COMPANIES": the companies details of which are set out in
PART 1 of SCHEDULE 2;
"COMPANIES ACTS": as defined in section 744, CA 85 together with
the Companies ▇▇▇ ▇▇▇▇;
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"COMPETENT
AUTHORITY": means any person or legal entity (including
any government or government agency) having
regulatory authority and/or any court of law
or tribunal, or any local or national agency,
authority, department, inspectorate, minister,
ministry, official or public or statutory person
(whether autonomous or not) of, or the government
of, the United Kingdom or the European Community;
"COMPLETION": completion of the sale and purchase of the Shares
pursuant to this Agreement and the Purchase
Agreements;
"COMPLETION ACCOUNTS": the accounts referred to in CLAUSE 6.1.1,
prepared in accordance with SCHEDULE 6;
"CONDITION": the condition referred to in CLAUSE 2.1;
"CONFIDENTIAL
INFORMATION": all information received or obtained by the
Vendor or supplied to the Vendor in the
negotiations leading to this Agreement and which
relates to TCC or any of its subsidiaries;
"CONNECTED PERSON": a person connected with any of the Sellers or the
Directors (or any former director of any Group
Company) within the meaning of section 839, TA
88;
"CONTAMINATED LAND
PROVISIONS": means Section 57 and Schedule 22 paragraph 162
respectively of the Environment ▇▇▇ ▇▇▇▇ and all
notices, codes of practice, guidance notes and
all subordinate legislation made under the above
statutory provisions;
"COPYRIGHT": copyright, design rights, topography rights and
database rights, whether or not the same are
registered or unregistered (including any
applications for registration of any such thing),
and rights under licences and consents in
relation to any such thing) and any similar or
analogous rights to any of the foregoing whether
arising or granted under the law of England or of
any other jurisdiction;
"DEED OF CONTRIBUTION": the deed of contribution in the agreed terms to
be entered into at Completion between the
Purchaser, TCC and the Sellers;
"DEED OF TAX
COVENANT": the deed in the agreed terms to be entered into
at Completion between the Vendor and the
Purchaser containing taxation covenants and
indemnities in respect of each Group Company;
"DIRECTORS": the directors of the Group Companies named as
such in SCHEDULE 2;
"DISCLOSED": fairly disclosed by the Disclosure Documents and
"Disclosure" shall be construed accordingly;
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"DISCLOSURE DOCUMENTS": the Disclosure Letter and the two identical
bundles of documents collated by or on behalf of
the Vendor, the outside covers of each of which
have been signed for identification by or on
behalf of the Vendor and the Purchaser;
"DISCLOSURE LETTER": the letter described as such of even date
herewith addressed by the Vendor to the
Purchaser;
"EARN-OUT AGREEMENT": the agreement in the agreed terms to be entered
in at Completion between TCC, the Purchaser and
the Vendor relating to the EOLN and the Earn Out
Shares and conduct of the business and affairs of
the Purchaser;
"EARN OUT SHARES": the 4,500 ordinary shares of 10 ▇▇▇▇▇ each in the
capital of the Purchaser which may be the subject
of options pursuant to the Scheme in favour of
certain of the employees of the Group, following
Completion and which may be purchased by the
Purchaser pursuant to the Earn-Out Agreement;
"ENCUMBRANCE": any interest or equity of any person (including
any right to acquire, option or right of
pre-emption) or any mortgage, charge, pledge,
lien, assignment, hypothecation, security
interest, title retention or any other security
agreement or arrangement;
"ENVIRONMENT": any and all organisms (including without
limitation man and his senses), ecological
systems, property and the following media: air
(including without limitation, the air within
buildings and the air within other natural or
man-made structures made whether above or below
ground); water (including without limitation,
water under or within land or in drains or sewers
and coastal and inland waters); and land
(including without limitation, land under water);
"ENVIRONMENTAL
AGREEMENTS": any and all leases or licences or other
agreements which are binding upon any of the
Group Companies but only to the extent that they
relate, either wholly or in part, to the
protection of the Environment, and/or the
prevention of Harm or Damage;
"ENVIRONMENTAL
INDEMNITY": means the covenant in respect of Environmental
Losses in CLAUSE 12;
"ENVIRONMENTAL LAWS": any and all laws including European
Community or European Union regulations,
directives and decisions; statutes and
subordinate legislation; regulations, orders,
ordinances, Permits, codes of practice,
circulars, guidance notes and the like; common
law, local laws and bylaws; judgments, notices,
orders, directions, instructions or awards of any
Competent
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Authority applicable to any Group Company, the
Property and/or the Further Property and/or
conduct of the Business and which have as a
purpose or effect the protection of the
Environment, and/or prevention of Harm or Damage
and/or the provision of remedies in respect of
Harm or Damage;
"ENVIRONMENTAL
LIABILITY": liability (including liability in respect of
Remedial Action) on the part of any Group Company
and/or any of their directors or officers or
shareholders under Environmental Laws;
"ENVIRONMENTAL LOSS": means any and all losses, damages and liabilities
(including without limitation, consequential
loss, loss of profits, fines, penalties, Remedial
Action costs), and reasonably incurred costs and
expenses (including without limitation legal and
other professional fees) suffered by the
Beneficiaries under Environmental Laws and
arising out of any Environmental Matter;
"ENVIRONMENTAL
MATTERS": means any and all events, states of affairs,
conditions, circumstances, activities, practices,
incidences or actions which have occurred or are
occurring or have been or are in existence in,
at, on, under or about either the Property and or
Further Properties or in or about the conduct of
the Business at any time;
"ENVIRONMENTAL
WARRANTIES:" the warranties set out in PARAGRAPH 9 of SCHEDULE
5;
"EOLN": the loan note to be issued by the Purchaser to
the Vendor by way of further consideration for
the Shares purchased from the Vendor, in
accordance with the terms of the Earn Out
Agreement;
"ERA": the Employment Rights ▇▇▇ ▇▇▇▇;
"EXHIBITS": the exhibits referred to in this Agreement and
signed for the purposes of identification by or
on behalf of each party;
"FA": Finance Act;
"FINANCIAL YEAR": a financial year within the meaning ascribed to
such expression by section 223, CA 85;
"FURTHER PROPERTIES": means any and all land or property, other than
the Properties, owned or occupied at any time by
any one or more of the Companies;
"GAAP": Accounting Standards, the legal principles set
out in schedules 4 and 4A to CA 85, rulings and
abstracts of the urgent issues task force of the
ASB and guidelines, conventions, rules and
procedures of accounting practice in the United
Kingdom
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which are regarded as permissible by the ASB in
each case as generally accepted by the
accountancy profession;
"GROUP": together the Companies and each of the
Subsidiaries;
"GROUP COMPANY": any of the Companies or any of the Subsidiaries;
"HARM OR DAMAGE": harm or damage to, or other interference with,
the Environment;
"HAZARDOUS MATTER": any and all matter (whether alone or in
combination with other matter) which may or is
liable to cause Harm or Damage;
"HOLDING COMPANY": a holding company within the meaning ascribed to
such expression by sections 736 and 736A, CA 85;
"INDEMNITIES": the indemnities given by the Vendor in CLAUSE 9
and the Environmental Indemnity;
"INTELLECTUAL
PROPERTY": Patent Rights, Know How, Copyright, Trade Marks,
Software and IP Materials;
"INTELLECTUAL
PROPERTY
AGREEMENTS": material agreements or arrangements relating to
Intellectual Property owned, used or exploited by
any Group Company to which a Group Company is a
party;
"IP MATERIALS": all documents, records, tapes, discs, diskettes
and any other materials whatsoever containing
Copyright works, Know How or Software;
"ITA": the Inheritance Tax ▇▇▇ ▇▇▇▇;
"KNOW HOW": trade secrets and confidential business
information including details of supply
arrangements, customer lists and pricing policy;
sales targets, sales statistics, market share
statistics, marketing surveys and reports;
marketing research; unpatented technical and
other information including inventions,
discoveries, processes and procedures, ideas,
concepts, formulae, specifications, procedures
for experiments and tests and results of
experimentation and testing; information
comprised in Software; together with all common
law or statutory rights protecting the same
including by any action for breach of confidence
and any similar or analogous rights to any of the
foregoing whether arising or granted under the
law of England or any other jurisdiction;
"LOSSES": actions, proceedings, losses, damages,
liabilities, claims, costs and expenses including
legal and other professional fees;
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"MANAGEMENT ACCOUNTS": the management accounts for each Group Company
for the period from 1 April 1997 to 30 September
1997, a copy of each of which is contained in
EXHIBIT B;
"NET ASSETS": in relation to the Group, its consolidated fixed
assets plus its consolidated current assets less
its consolidated liabilities as set out in the
Completion Accounts;
"NFHC AGREEMENT": the agreement in the agreed terms to be entered
into at Completion between the Purchaser and
those Sellers holding shares in New Focus Health
Care Limited relating to the sale and purchase of
those Shares;
"NON-COMPETITION
AGREEMENTS": the agreements in the agreed terms to be entered
into at Completion between the Purchaser and the
Sellers relating to the protection of the
goodwill of the Business;
"PATENTS": the patents listed in SCHEDULE 4;
"PATENT LICENCE": the licence in the agreed terms to be entered
into at Completion between the CooperVision Inc.
and the Patent Owners relating to the Patents;
"PATENT OWNERS": ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇;
"PATENT RIGHTS": patent applications or patents, author
certificates, inventor certificates, utility
certificates, improvement patents and models and
certificates of addition including any divisions,
renewals, continuations, refilings,
confirmations-in-part, substitutions,
registrations, confirmations, additions,
extensions or reissues thereof and any similar or
analogous rights to any of the foregoing whether
arising or granted under the law of England or
any other jurisdiction;
"PENSION SCHEMES": agreements or arrangements (whether legally
enforceable or not) for the payment of any
pensions, allowances, lump sums or other like
benefits on retirement or on death or during
periods of sickness or disablement for the
benefit of any present or former director,
officer or employee of any of the Group Companies
or for the benefit of the dependants of any such
persons;
"PERMITS": any and all licences, consents, permits,
authorisations or the like, made or issued
pursuant to or under, or required by,
Environmental Laws in relation to the carrying on
of the Business at the Property;
"PROCEEDINGS": any proceeding, suit or action arising out of or
in connection with this Agreement or the Deed of
Tax Covenant;
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"PROPERTIES": the properties of which short particulars are set
out in SCHEDULE 3 and the expression "Property"
shall mean, where the context so admits, any one
or more of such properties and any part or parts
thereof;
"PURCHASE AGREEMENTS": together the NFHC Agreement, the AVC Agreement,
the CLT Agreement and the AVI Agreement;
"PURCHASE NOTES": the loan notes in the agreed terms to be issued
to the Sellers at Completion by the Purchaser and
guaranteed by TCC;
"PURCHASER'S GROUP": the Purchaser and its Affiliates;
"PURCHASER'S
SOLICITORS": ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
"REGISTERED
INTELLECTUAL
PROPERTY": such of the Intellectual Property used or
exploited by any Group Company as is (a) licenced
to or (b) registered in any public registry as
being owned by a Group Company;
"REMEDIAL ACTION": (a) preventing, limiting, removing, remedying,
cleaning-up, abating, containing or ameliorating
the presence or effect of any Hazardous Matter in
the Environment (including without limitation the
Environment at the Property and/or at the Further
Property) or (b) carrying out investigative work
and obtaining legal and other professional advice
as is reasonably required in relation to (a);
"RTPA": Restrictive Trade Practices ▇▇▇ ▇▇▇▇;
"SCHEME": the unapproved share option scheme to be adopted
by the Purchaser, as exhibited to the Earn-Out
Agreement;
"SELLERS": the persons whose names and details are set out
in COLUMN (1) of SCHEDULE 1;
"SERVICE AGREEMENTS": the service agreements to be entered into between
Aspect Vision Care Limited and each of the
Vendor, ▇. ▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇, ▇. ▇▇▇▇▇, ▇.
▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇▇
and ▇. ▇▇▇▇▇▇;
"SERVICE DOCUMENT": a writ, summons, order, judgment or other
document relating to or in connection with any
Proceedings;
"SHARE CHARGE": the charge over the shares in the Purchaser held
by TCC to be granted by TCC to the Vendor in the
agreed terms;
"SHARES": the shares or, in respect of Aspect Vision Italia
s.r.l., the quotas in the capitals of each of the
Companies set out in COLUMN (2) of SCHEDULE 1;
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"SOFTWARE": any and all computer programs in both source and
object code form, including all modules, routines
and sub-routines thereof and all source and other
preparatory materials, relating thereto including
user requirements, functional specifications and
programming specifications, ideas, principles,
programming languages, algorithms, flow charts,
logic, logic diagrams, orthographic
representations, file structures, coding sheets,
coding and including any manuals or other
documentation relating thereto and computer
generated works;
"SSAP": a statement of standard accounting practice or
financial reporting standard in force at the date
hereof as issued by the Institute of Chartered
Accountants in England and Wales and adopted by
the ASB as an Accounting Standard;
"STOCK EXCHANGE": London Stock Exchange Limited;
"SUBORDINATION
AGREEMENT": the subordination agreement in the agreed terms
to be entered into at Completion between TCC,
Keybank National Association and the holders of
the Purchase Notes;
"SUBSIDIARY": a subsidiary within the meaning ascribed to such
expression by sections 736 and 736A, CA 85;
"SUBSIDIARY
UNDERTAKING": a subsidiary undertaking within the meaning
ascribed to such expression by section 258, CA
85;
"SUBSIDIARIES": the subsidiaries of Aspect Vision Care Limited
details of which are set out in PART 2 of
SCHEDULE 2;
"TA 88": the Income and Corporation Taxes ▇▇▇ ▇▇▇▇;
"TAXATION": (a) all forms of taxation excluding business
rates but including and without any limitation
any charge, tax, duty, levy, impost, withholding
or liability wherever chargeable imposed for
support of national, state, federal, municipal or
local government or any other person and whether
of the UK or any other jurisdiction; and
(b) any penalty, fine, surcharge, interest,
charges or costs payable in connection with any
taxation within (a) above;
"TAXATION AUTHORITY": the Inland Revenue, Customs & Excise, Department
of Social Security and any other, governmental,
or other authority whatsoever competent to impose
any Taxation whether in the United Kingdom or
elsewhere;
"TAXATION STATUTE": any directive, statute, enactment, law or
regulation wheresoever enacted or issued, coming
into force or entered into providing for or
imposing any Taxation and shall include orders,
regulations, instruments, bye-laws or other
subordinate
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legislation made under the relevant statute or
statutory provision and any directive, statute,
enactment, law, order, regulation or provision
which amends, extends, consolidates or replaces
the same or which has been amended, extended,
consolidated or replaced by the same;
"TAX WARRANTIES": the warranties set out in PART 2 of SCHEDULE 5;
"TCC STOCK OPTIONS": the options over shares of TCC common stock to be
issued by TCC to those persons listed in SCHEDULE
10 in accordance with CLAUSE 10;
"TCGA": the Taxation of Chargeable Gains ▇▇▇ ▇▇▇▇;
"TMA": the Taxes Management ▇▇▇ ▇▇▇▇;
"TRADE MARKS": trade or service ▇▇▇▇ applications or registered
trade or service marks, registered protected
designations of origin, registered protected
geographic origins, refilings, renewals or
reissues thereof, unregistered trade or service
marks, get up and company names in each case with
any and all associated goodwill and all rights or
forms of protection of a similar or analogous
nature including rights which protect goodwill
whether arising or granted under the law of
England or of any other jurisdiction;
"TRADE UNION": as defined in section 1, TULRCA;
"TULRCA": the Trade Union and Labour Relations
(Consolidation) ▇▇▇ ▇▇▇▇;
"TUPE": the Transfer of Undertakings (Protection of
Employment) Regulations 1981;
"UNREGISTERED
INTELLECTUAL PROPERTY": Intellectual Property owned, licensed, used or
exploited by any Group Company other than
Registered Intellectual Property;
"VAT": value added tax;
"VATA": the Value Added Tax ▇▇▇ ▇▇▇▇;
"VENDOR'S SOLICITORS": ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ of ▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
"WARRANTIES": the warranties set out in CLAUSE 7 and SCHEDULE
5; and
"IN THE AGREED TERMS": in the form agreed between the Vendor and the
Purchaser and signed for the purposes of
identification by or on behalf of each party.
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1.2 The table of contents and headings in this Agreement are inserted for
convenience only and shall not affect its construction.
1.3 Unless the context otherwise requires words denoting the singular shall
include the plural and vice versa, references to any gender shall include
all other genders and references to persons shall include bodies
corporate, unincorporated associations and partnerships in each case
whether or not having a separate legal personality. References to the word
"include" or "including" are to be construed without limitation.
1.4 References to recitals, schedules and clauses are to recitals and
schedules to and clauses of this Agreement unless otherwise specified and
references within a schedule to paragraphs are to paragraphs of that
schedule unless otherwise specified.
1.5 References in this Agreement to any statute, statutory provision or EC
Directive include a reference to that statute, statutory provision or EC
Directive as amended, extended, consolidated or replaced from time to time
(whether before or after the date of this Agreement) and include any
order, regulation, instrument or other subordinate legislation made under
the relevant statute, statutory provision or EC Directive and any such
references in the Warranties shall be deemed to include, as regards Aspect
Vision Italia s.r.l., that which most approximates them in Italy.
1.6 References to any English legal term for any action, remedy, method of
judicial proceeding, legal document, legal status, court, official or any
legal concept or thing shall in respect of any jurisdiction other than
England be deemed to include that which most approximates in that
jurisdiction to the English legal term.
1.7 Any reference to "writing" or "written" includes faxes and any
non-transitory form of visible reproduction of words.
1.8 References to times of the day are to London time and references to a day
are to a period of 24 hours running from midnight to midnight.
2. CONDITION
2.1 Condition precedent
Subject to CLAUSE 2.3, this Agreement is subject to and conditional upon
the Vendor receiving from the Board of Inland Revenue clearances under
section 138 TCGA and under section 707 TA on terms reasonably satisfactory
to him.
2.2 Time limit for satisfaction of Condition
2.2.1 If the condition in CLAUSE 2.1 has not been fulfilled or waived (by
mutual agreement of the parties) by 31 December 1997 (or by such
later date as may be agreed in writing between the parties) this
Agreement shall thereupon become null and void at initio and none
of the parties shall have any rights against any other party
hereunder.
2.2.2 The Vendor shall notify the Purchaser, TCC and the Purchaser's
Solicitor in writing forthwith upon satisfaction of the Condition.
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2.3 Operations provisions
Notwithstanding CLAUSE 2.1, CLAUSES 14 - 17 (inclusive), 18 (other than
CLAUSE 18.2) and 19 - 25 (inclusive) shall come into force on the
execution and exchange of this Agreement and the remainder of the
Agreement shall come into force on the fulfilment and/or waiver of the
Condition.
3. SALE AND PURCHASE
3.1 Obligation to sell and purchase
Subject to the terms of this Agreement the Vendor shall use all reasonable
endeavours to procure that each of the Sellers shall, with effect from 1
November 1997, sell those Shares set opposite his name in COLUMN (2) of
SCHEDULE 1 and the Purchaser shall purchase such interests in the same
together with all rights attaching thereto with effect from 1 November
1997.
3.2 Dividends and distributions
From Completion the Purchaser shall be entitled to receive all dividends
and distributions declared, paid or made by any of the Companies in
respect of the Shares on or after 1 November 1997.
3.3 Sale of all Shares
The Purchaser shall not be obliged to complete the purchase of any of the
Shares unless the purchase of all the Shares is completed simultaneously.
4. CONSIDERATION
4.1 Consideration
The consideration for the Shares shall be as set out in the Purchase
Agreements and shall be:
4.1.1 in part payable in cash;
4.1.2 in part satisfied by the issue of the Purchase Notes but subject to
adjustment as provided in CLAUSE 6.2; and
4.1.3 the right for the Vendor to be issued the EOLN in accordance with
the terms of the Earn Out Agreement.
4.2 Entitlement to consideration
The consideration, other than the right to the EOLN which shall be for the
Vendor, shall be allocated such that the Cash Consideration and the
Purchase Notes shall belong or, as the case may be, be issued to the
Sellers in the proportions set out in the Purchase Agreements.
4.3 Reduction in consideration
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Any payment made by the Vendor in respect of a breach of any Warranties
or payment made under the Indemnities or the Deed of Tax Covenant, or any
other payment made pursuant to this Agreement, shall be and shall be
deemed to be pro tanto a reduction in the price paid for the Shares under
this Agreement.
4.4 Guarantee of Purchase Notes
TCC agrees to guarantee the obligations of the Purchaser in respect of the
Purchase Notes on the terms set out in the Purchase Notes.
5. COMPLETION
5.1 Time and location
Subject as provided in CLAUSE 5.5, Completion shall take place at the
offices of the Purchaser's Solicitors on the fifth Business Day following
satisfaction or waiver of the condition or such other date as may be
agreed in writing between the Purchaser and the Vendor.
5.2 Vendor's obligations
At Completion:-
5.2.1 the Vendor shall deliver to the Purchaser each of the documents
listed in PART 1 of SCHEDULE 7;
5.2.2 the Vendor shall use all reasonable endeavours to procure that all
necessary steps are taken properly to effect the matters listed in
PART 2 of SCHEDULE 7.
5.3 Purchaser's obligations
Subject to the Vendor complying with his obligations under CLAUSE 5.2, the
Purchaser shall at Completion deliver the documents and effect the actions
listed in PART 3 of SCHEDULE 7.
5.4 TCC's obligations
Subject to the Vendor complying with his obligations under CLAUSE 5.2, TCC
shall at Completion deliver the documents and effect the actions listed in
PART 4 of SCHEDULE 7.
5.5 Failure to comply
If in any respect material to the Purchaser the provisions of CLAUSE 5.2
and PARTS 1 and 2 of SCHEDULE 7 or if in any respect material to the
Vendor the provisions of CLAUSES 5.3 and 5.4 and PARTS 3 and 4 of SCHEDULE
7 are not complied with on the date of Completion referred to under CLAUSE
5.1, the Purchaser or, as the case may be, the Vendor shall not be obliged
to complete this Agreement and may:-
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5.5.1 defer Completion to a date not more than twenty-eight days after
the date set by CLAUSE 5.1 (and so that the provisions of this
CLAUSE 5.5 shall apply to Completion as so deferred); or
5.5.2 proceed to Completion so far as practicable and without prejudice
to their rights under this Agreement; or
5.5.3 rescind this Agreement without prejudice to their rights and
remedies under this Agreement; or
5.5.4 waive all or any of the requirements contained in CLAUSE 5.2 or, as
the case may be, CLAUSES 5.3 and 5.4, at their discretion.
6. COMPLETION ACCOUNTS
6.1 Preparation of Completion Accounts
6.1.1 The Vendor shall procure that accounts are prepared by the Auditors
for the Group as at the close of business on 31 October 1997 and
that a draft of such accounts is submitted to the Purchaser for
review within 75 days after Completion. The Vendor shall be
entitled to submit amendments to the draft accounts to the
Purchaser at any time prior to the later of 150 days from
Completion and the agreement of such accounts with the Purchaser.
The Purchaser shall be entitled to not less than 30 days to
consider any amendments to the draft accounts submitted by the
Vendor.
6.1.2 If the Vendor shall fail to procure the preparation of Completion
Accounts in accordance with CLAUSE 6.1.1 the Purchaser may procure
the same at the Vendor's expense.
6.1.3 The Completion Accounts shall be prepared in accordance with the
principles set out in SCHEDULE 6.
6.1.4 Unless within 60 days after receipt of the Completion Accounts
pursuant to CLAUSE 6.1.1 the Purchaser notifies the Vendor in
writing of any disagreement or difference of opinion relating to
the Completion Accounts, the parties shall be deemed to have
accepted such accounts as accurate but without prejudice to any
claim which the Purchaser may have against the Vendor in respect of
any breach of the Warranties or any other provisions of this
Agreement.
6.1.5 If within the period of 60 days referred to in CLAUSE 6.1.4 the
Purchaser notifies the Vendor of any disagreement or difference of
opinion relating to the Completion Accounts ("Notice of
Disagreement") and if they are able to resolve such disagreement or
difference of opinion within 30 days of the date of the Notice of
Disagreement, the parties shall be deemed to have accepted the
Completion Accounts as accurate but without prejudice to any claim
which the Purchaser may have against the Vendor in respect of any
breach of the Warranties or any other provision of this Agreement.
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6.1.6 If the Vendor and the Purchaser are unable to reach agreement
within 30 days of the date of the Notice of Disagreement, the
matter in dispute shall be referred to the decision of an
independent chartered accountant (the "Independent Accountant") to
be appointed (in default of nomination by agreement between the
Vendor and the Purchaser) by the President for the time being of
the Institute of Chartered Accountants in England and Wales.
6.1.7 The Independent Accountant shall act as an expert and not as an
arbitrator, the Arbitration Acts 1950 and 1979 shall not apply and
his decision on the matter in dispute shall (in the absence of
manifest error) be final and binding on the Vendor and the
Purchaser. The costs of the Independent Accountant shall be
apportioned between the Vendor and the Purchaser as the Independent
Accountant shall decide but each party shall be responsible for its
own costs of presenting its case to the Independent Accountant.
6.2 Adjustment of consideration
The consideration payable by the Purchaser to each Seller shall be
adjusted after Completion in accordance with the following provisions of
this CLAUSE 6.2 such that:
6.2.1 subject to CLAUSE 6.2.2, if the Net Assets are less than 'L'6
million but more than 'L'5.5 million the Vendor shall, subject
to CLAUSE 10, pay to the Purchaser the amount of the deficiency
below 'L'6 million; but
6.2.2 if the Net Assets are less than 'L'5.5 million the Vendor
shall, subject to CLAUSE 10, pay to the Purchaser the sum of
'L'500,000 plus an amount ascertained by multiplying the
deficiency below 'L'5.5 million by two and the provisions of
CLAUSE 6.2.1 shall not apply.
6.3 Any amount due to the Purchaser from the Vendor pursuant to CLAUSE 6.2
shall be paid in accordance with CLAUSE 10.
7. WARRANTIES
7.1 Extent of Warranties
In consideration of the Purchaser agreeing to purchase the Shares on the
terms contained in this Agreement, the Vendor hereby:-
7.1.1 in relation to each Group Company warrants, represents and
undertakes to the Purchaser, in the terms set out in SCHEDULE 5;
and
7.1.2 undertakes to the Purchaser that upon becoming aware of the
occurrence or the impending or threatened occurrence or
non-occurrence of any matter, event or circumstance (including any
omission to act) which he knows would or might reasonably be
expected to cause or constitute a breach of any of the Warranties
or which he knows would or might give rise to a claim under the
Deed of Tax Covenant he will promptly give written notice of such
matter, event or circumstance to the Purchaser.
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7.2 Obligation to make enquiries
Where any of the Warranties referred to in COLUMN (2) of SCHEDULE 12 are
made or given "so far as the Vendor is aware", such Warranties shall be
deemed to be given to the best of the knowledge, information and belief of
the Vendor after making due and careful enquiries of the Sellers and ▇▇▇▇
▇▇▇▇▇▇▇.
7.3 Investigation by Purchaser
None of the Warranties or the Indemnities or the Deed of Tax Covenant
shall be deemed in any way modified or discharged by reason of any
investigation or inquiry made by or on behalf of the Purchaser, and no
information relating to any Group Company of which the Purchaser has
knowledge (actual or constructive) other than by reason of its being
Disclosed shall prejudice any claim which the Purchaser shall be entitled
to bring or shall operate to reduce any amount recoverable by the
Purchaser under this Agreement.
7.4 Information supplied by the Group Companies
7.4.1 Subject to CLAUSES 7.4.2, any information supplied by or on behalf
of any Group Company (or by any officer, employee or agent of any
of them) to the Vendor or his advisers in connection with the
Warranties, the Indemnities, the Deed of Tax Covenant or the
information Disclosed shall not constitute a warranty,
representation or guarantee as to the accuracy of such information
in favour of the Vendor and the Vendor hereby undertakes to the
Purchaser to waive any and all claims which he might otherwise have
against any Group Company or against any officer, employee or agent
of any of them in respect of such claims but so that this shall not
preclude the Vendor from claiming against any Seller under any
right of contribution or indemnity to which he may be entitled.
7.4.2 Nothing contained in CLAUSE 7.4.1 shall preclude any action against
any adviser to any Group Company to the extent that such action
shall not result in any liability for any Group Company.
7.5 Separate and independent warranties
Each of the Warranties set out in the separate paragraphs of SCHEDULE 5
shall be separate and independent and save as expressly otherwise provided
shall not be limited by reference to any other such Warranty.
7.6 Reliance
The Purchaser has entered into this Agreement and the Purchase Agreements
upon the basis of and in reliance upon the Warranties and the Indemnities
and the same together with any provision of this Agreement or the Deed of
Tax Covenant which shall not have been fully performed at Completion shall
remain in force notwithstanding that Completion shall have taken place.
8. LIMITATION OF VENDOR'S LIABILITY
8.1 Limitations on liability
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The liability of the Vendor in respect of any claim under the Warranties,
the Indemnities and the Deed of Tax Covenant shall be limited as provided
in SCHEDULE 8 but so that the limitations on the liability of the Vendor
under this CLAUSE 8.1 and SCHEDULE 8 shall not apply in relation to the
Warranties set out in PARAGRAPH 2.4.1 of SCHEDULE 5.
8.2 Exclusions from CLAUSE 8
Notwithstanding any other provision of this Agreement, the provisions of
this CLAUSE 8 and SCHEDULE 8 shall not apply to any claim made against the
Vendor in the case of any fraudulent misrepresentation or dishonest act or
omission by or on behalf of the Vendor as against the Purchaser.
8.3 Other operative provisions
The provisions of SCHEDULE 8 shall have immediate effect.
9. INDEMNITIES
9.1 The Vendor undertakes to indemnify and keep the Purchaser indemnified from
and against and in respect of and to pay on demand to the Purchaser an
amount equivalent to:-
9.1.1 all Losses incurred by the Purchaser or any Group Company prior to
the fifth anniversary of Completion in relation to or arising from
any breach or alleged breach prior to Completion by any Group
Company of the patents held by Allergan, Inc. (such Losses not to
include any Losses resulting from any decision to continue any
process after Completion);
9.1.2 all Losses incurred by any Group Company or the Purchaser prior to
the second anniversary of Completion in relation to claims by any
employees of any Group Company in respect of their cessation of
employment prior to Completion but only to the extent such Losses
exceed (pound)25,000; and
9.1.3 all Losses incurred by or arising from any Group Company or the
Purchaser prior to the second anniversary of Completion, including
any revenues lost by any Group Company, as a result of or arising
from any material breach or alleged material breach prior to
Completion by a Group Company of any OEM Agreement.
9.2 Any sum payable by the Vendor pursuant to this CLAUSE 9 shall be paid free
and clear of any deduction or withholding whatsoever, save only as may be
required by law.
9.3 If any deduction or withholding is required by law to be made from any
payment by the Vendor pursuant to this CLAUSE 9 or if the Purchaser is
subject to Taxation in respect of such payment the Vendor shall increase
the amount of the payment by such additional amount as is necessary to
ensure that the net amount received and retained by the Purchaser (after
taking account of all deductions or withholdings or Taxation) is equal to
the amount which it would have received and retained had the payment in
question not been subject to any deductions or withholdings or Taxation.
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10. SET OFF
10.1 In the event that the Purchaser has any claim against the Vendor pursuant
to the Net Asset adjustment mechanism in CLAUSE 6.2 ("Net Asset Claim"),
the Warranties, the Indemnities or the Deed of Tax Covenant (a "Claim"),
all or part of the Claim Amount shall be divided amongst the Sellers in
the Agreed Proportions or, in respect of a Net Asset Claim, pro rata to
the aggregate of the Cash Consideration and the Purchase Notes received by
each Seller for the Shares, and shall be satisfied in the following
order:-
10.1.1 firstly, the Claim Amount shall be set off against the Purchase
Notes in the Agreed Proportions or, in respect of a Net Asset
Claim, pro rata to the aggregate of the Cash Consideration and the
Purchase Notes received by each Seller for the Shares, and the
amounts (whether of principal, interest or otherwise) outstanding
under the Purchase Notes shall reduce and be cancelled accordingly
and in accordance with the terms of the Purchase Notes;
10.1.2 secondly, if a Purchase Note held by any Seller has been repaid or
has been reduced to zero by operation of CLAUSE 10.1.1, the balance
of that Seller's Agreed Proportion of the Claim Amount shall be
deducted from that Seller's share of the First Option Price or, if
that has already been paid or reduced to zero, the Second Option
Price (as each such term is defined in the Earn Out Agreement), or,
in the case of the Vendor, from the EOLN and retained by the
Purchaser; and
10.1.3 to the extent set-off is not available for any reason, the balance
of any Seller's Agreed Proportion of the Claim Amount shall be
payable in cash by the Vendor.
10.2 For the purposes of CLAUSE 10.1, a "Claim Amount" shall mean, in relation
to any Claim:-
10.2.1 the amount which is agreed by the Vendor; or
10.2.2 the amount which shall have been adjudged at first instance by a
court of competent jurisdiction to be payable by the Vendor to the
Purchaser.
11. TCC STOCK OPTIONS, THE SCHEME AND A TCC UNDERTAKING
11.1 Subjectto CLAUSE 11.2, TCC agree to use all reasonable endeavours
following Completion to procure that The ▇▇▇▇▇▇ Companies, Inc. 1988 Long
Term Incentive Plan (the "TCC Plan") is amended so as to enable United
Kingdom employees and full time directors of the Group to be granted
options over TCC common stock which have been approved under Schedule 9 to
the Income and Corporation Taxes Act 1988 ("ICTA"), by the United Kingdom
Board of Inland Revenue ("Approved Options").
11.2 The parties agree that:
11.2.1 if the amendments required to the TCC Plan referred to in CLAUSE
11.1 require the approval of the holders of TCC common stock then
TCC shall not be obliged to seek such approval of such stockholders
and CLAUSE 11.1 shall not apply; and
11.2.2 all costs of TCC (up to a maximum of 'L'3,000) in seeking to
make and in effecting any amendment of the TCC Plan pursuant to
CLAUSE 11.1 shall be borne by the
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Vendor and the Vendor hereby agrees to fully indemnify TCC and keep
TCC fully indemnified against all such costs.
11.3 TCC agrees that on the execution and exchange of this Agreement it shall
procure the grant to each of the persons listed in COLUMN 1 of PART A of
SCHEDULE 10 of such number of options over TCC common stock as are set
against their respective names in COLUMN 2 of PART A of SCHEDULE 10. The
exercise of any such options shall be conditional on Completion.
11.4 TCC agrees that within 30 days of approval being given (if given) by the
Board of Inland Revenue to the TCC Plan pursuant to CLAUSE 11.1 it shall
procure the grant to each of the persons listed in COLUMN 1 of PART B of
SCHEDULE 10 of such number of options over TCC common stock as are set
against their respective names in COLUMN 2 of PART B of SCHEDULE 10 of
which the maximum number permissible under paragraph 28 of schedule 9 to
ICTA shall be Approved Options.
11.5 If the TCC Plan shall not be amended pursuant to CLAUSE 11.1, whether
because approval of TCC stockholders would be required or because the
United Kingdom Inland Revenue refuses to grant approval of the amendments
or otherwise, then TCC shall, as soon as reasonably practicable, grant to
each of the persons listed in COLUMN 1 of PART B of SCHEDULE 10 such
number of options over TCC common stock as are set against their
respective names in COLUMN 2 of PART B of SCHEDULE 10.
11.6 Subject always to the rules of the TCC Plan, all options granted pursuant
to CLAUSES 11.3 to 11.5 shall have an exercise price per share of TCC
common stock equivalent to the average of the high and low selling price
of TCC common stock on the New York Stock Exchange ("Market Price") on the
last trading day prior to the execution and exchange of this Agreement or
in the case of the Approved Options, an exercise price per share
determined by reference to such other method of calculating the Market
Value of TCC common stock at their date of grant as the Board of Inland
Revenue may allow.
TCC agrees that, following Completion, it shall grant options over TCC
common stock, up to the maximum number of options set out in PART C of
SCHEDULE 11, to such employees of the Group as the Vendor may direct in
writing. The options granted pursuant to this CLAUSE 11.7 shall have an
exercise price which is the Market Price on the last trading day prior to
the date of grant. The options shall be granted by TCC within 30 days of a
written request from the Vendor.
11.7 The Purchaser agrees to grant, as soon as reasonably practicable following
Completion, options over the Earn-Out Shares pursuant to the Scheme to
such of the employees of the Group and in such numbers as the Vendor
shall, at any time within the three month period following Completion,
direct.
11.8 The Purchaser and TCC agree to use all reasonable endeavours to procure
that any Sellers who have given personal guarantees in respect of the
Group Companies shall be released from such personal guarantees and,
pending the obtaining of such releases, the Purchaser and TCC agree to
indemnify and keep indemnified such Sellers from and against all
liabilities in respect of such guarantees.
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12. ENVIRONMENTAL INDEMNITY
12.1 The Vendor undertakes to indemnify the Purchaser, for and on behalf of
itself and as trustee for each of the Beneficiaries, and keep the
Beneficiaries indemnified from and against and in respect of and to pay on
demand to the Purchaser (acting as aforesaid) an amount equal to:-
12.1.1 half of any Environmental Loss to the extent that such
Environmental Loss arises under any Environmental Law which is
enacted after the date hereof (in respect of which the parties
hereby acknowledge that the Contaminated Land Provisions were
enacted before the date of this Agreement);
12.1.2 half of any cost incurred by the Purchaser or any Group Company in
relation to the Purchaser or any Group Company complying with a
direction from a Competent Authority to undertake Remedial Action
in relation to the land adjacent to the temporary car park at the
Hamble Properties identified in the Dames & ▇▇▇▇▇ reports to the
Purchaser as being contaminated. Provided that no such claim shall
be made in circumstances where the said direction of the Competent
Authority arises out of any proposed change of use of the said
land;
12.1.3 the costs of removing asbestos and/or asbestos containing materials
from any buildings at or on the Thermoking Property;
12.1.4 any Losses which result from a failure by the Purchaser or any
Group Company to obtain a Permit in respect of the discharge of
wastewater from the Properties at Hamble referred to in the Dames &
▇▇▇▇▇ reports to the Purchaser; and
12.1.5 any Environmental Losses incurred by any Group Company or the
Purchaser where the Environmental Matter has arisen as a result of
ground contamination of gravels by hydrocarbons leaking from the
storage tank at the Thermoking Property that has been identified by
Dames & ▇▇▇▇▇ in a report to the Purchaser PROVIDED ALWAYS THAT the
Purchaser shall not voluntarily notify any environmental authority
(save where it is legally obliged to do so or is acting in the
ordinary course of business) of any matter which could give rise to
a claim against the Vendor under this CLAUSE 12.1.4.
12.2 Any sum payable by the Vendor pursuant to this CLAUSE 12 shall be paid
free and clear of any deduction or withholding whatsoever, save only as
may be required by law.
12.3 If any deduction or withholding is required by law to be made from any
payment by the Vendor pursuant to this CLAUSE 12 or if the Purchaser is
subject to Taxation in respect of such payment the Vendor shall increase
the amount of the payment by such additional amount as is necessary to
ensure that the net amount received and retained by the Purchaser (after
taking account of all deductions or withholdings or Taxation) is equal to
the amount which it would have received and retained had the payment in
question not been subject to any deductions or withholdings or Taxation.
13. RTPA
13.1 If there is any provision of this Agreement, or of any agreement or
arrangement of which this Agreement forms part, which causes or would
cause this Agreement or that agreement or
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arrangement to be subject to registration under the RTPA, then that
provision shall not take effect until the day after particulars of this
Agreement or of that agreement or arrangement (as the case may be) have
been furnished to the Director General of Fair Trading pursuant to section
24, RTPA.
13.2 The Purchaser shall furnish such particulars as are referred to in CLAUSE
13.1 as soon as is reasonably practicable after the date of this Agreement
and within the time limits specified in the RTPA and the Vendor undertakes
to provide such information and assistance as the Purchaser may reasonably
require in connection therewith.
14. ANNOUNCEMENTS
14.1 Restrictions on announcements
No announcement shall be made in relation to the subject matter of this
Agreement or a matter ancillary to this Agreement without the prior
written consent of the other party save as may be required by any:-
14.1.1 law;
14.1.2 existing contractual arrangements; or
14.1.3 the Stock Exchange or the Panel on Takeovers and Mergers or any
other applicable regulatory authority to which the Sellers are
subject where such requirement has the force of law,
provided such communication shall be made only after consultation with the
Purchaser.
14.2 Continuing effect
The restrictions contained in this clause shall continue to apply after
Completion without limit in time.
14.3 Legal and regulatory requirements
The Purchaser and the Vendor undertake to provide all such information
known to him or it as may reasonably be required by the Vendor or the
Purchaser, as the case may be, for the purpose of complying with the
requirements of law or of any applicable regulatory authority to which
either party is subject where such requirement has the force of law.
15. ASSIGNMENT
15.1 No party may assign the benefit of this Agreement whether absolutely or by
way of security except in the case of an absolute assignment of all or
part by the Purchaser to an Affiliate of the Purchaser and provided and so
long as it remains an Affiliate (failing which the benefit of this
Agreement shall no longer be available to such assignee nor to any
assignor) save that the Purchaser may assign such benefit absolutely or by
way of security to a person other than an Affiliate of the Purchaser with
the prior consent in writing of the Vendor such consent not to
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be unreasonably withheld or delayed and any purported assignment in
contravention of this clause shall be ineffective.
15.2 Subject to CLAUSE 15.1, this Agreement shall be binding upon and enure for
the benefit of the personal representatives and assigns and successors in
title of each of the parties.
16. REMEDIES CUMULATIVE
16.1 The rights, powers and remedies provided in this Agreement or expressly
referred to herein are cumulative and do not exclude any rights, powers or
remedies provided by law or by any other document other than this
Agreement.
16.2 Nothing in this Agreement, the Deed of Tax Covenant, the Disclosure
Documents or in any document in the agreed terms shall be read or
construed as excluding any liability or remedy as a result of fraud.
16.3 Nothing in this Agreement shall entitle the Purchaser to rescind this
Agreement.
17. WAIVER, VARIATION AND RELEASE
17.1 No omission to exercise or delay in exercising on the part of any party to
this Agreement any right, power or remedy provided by law or under this
Agreement shall constitute a waiver of such right, power or remedy or any
other right, power or remedy or impair such right, power or remedy. No
single or partial exercise of any such right, power or remedy shall
preclude or impair any other or further exercise thereof or the exercise
of any other right, power or remedy provided by law or under this
Agreement.
17.2 Any waiver of any right, power or remedy under this Agreement must be in
writing and may be given subject to any conditions thought fit by the
grantor. Unless otherwise expressly stated any waiver shall be effective
only in the instance and only for the purpose for which it is given.
17.3 No variation to this Agreement shall be of any effect unless it is agreed
in writing and signed by or on behalf of each party.
18. COSTS AND EXPENSE
18.1 General
Save as otherwise stated in this Agreement, each party shall pay its own
costs and expenses in relation to the negotiation, preparation, execution
and carrying into effect of this Agreement and other agreements forming
part of the transaction.
18.2 TCC's contribution
TCC shall contribute 'L'50,000, including VAT, towards the legal costs
and expenses of the Vendor.
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18.3 Group Companies to pay no costs
For the avoidance of doubt, no Group Company shall pay any legal or other
professional charges and expenses in connection with any investigation of
the affairs of the Group or the negotiation, preparation, execution and
carrying into effect of this Agreement or any other agreement forming part
of the transaction.
19. NOTICES
19.1 Any communication to be given in connection with the matters contemplated
by this Agreement shall except where expressly provided otherwise be in
writing and shall either be delivered by hand or sent by first class
pre-paid post or sent by air mail. Delivery by courier shall be regarded
as delivery by hand.
19.2 Such communication shall be sent to the address of the relevant party
referred to in this Agreement or to such other address as may previously
have been communicated to the other party in accordance with this clause.
Each communication shall be marked for the attention of the relevant
person.
19.3 A communication shall be deemed to have been served:-
19.3.1 if delivered by hand at the address referred to in CLAUSE 19.2, at
the time of delivery;
19.3.2 if sent by first class pre-paid post to the address referred to in
CLAUSE 19.2, at the expiration of two clear days after the time of
posting; and
19.3.3 if sent by air mail to the address referred to in CLAUSE 19.2, at
the expiration of five clear days after posting.
If a communication would otherwise be deemed to have been delivered
outside of normal business hours (being 9:30 a.m. to 5:30 p.m. on a
Business Day) in the time zone of the territory of the recipient under the
preceding provisions of this clause, it shall be deemed to have been
delivered at the opening of business on the next Business Day.
19.4 In proving service of the communication, it shall be sufficient to show
that delivery by hand was made or that the envelope containing the
communication was properly addressed and posted as a first class pre-paid
letter or air mail letter.
19.5 A party may notify the other parties to this Agreement of a change to its
name, relevant person or address for the purposes of CLAUSE 19.1 PROVIDED
THAT such notification shall only be effective on:-
19.5.1 the date specified in the notification as the date on which the
change is to take place; or
19.5.2 if no date is specified or the date specified is less than five
clear Business Days after the date on which notice is deemed to
have been served, the date falling five clear Business Days after
notice of any such change is deemed to have been given.
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19.6 For the avoidance of doubt, the parties agree that the provisions of this
clause shall not apply in relation to the service of Service Documents.
20. COUNTERPARTS
20.1 This Agreement may be executed in any number of counterparts and by the
parties on different counterparts, but shall not be effective until each
party has executed at least one counterpart.
20.2 Each counterpart shall constitute an original of this Agreement but all
the counterparts shall together constitute one and the same Agreement.
21. LANGUAGE
21.1 This Agreement is drawn up in the English language and if this Agreement
is translated into any language other than English, the English language
text shall prevail.
21.2 Each notice, instrument, certificate or other communication to be given by
one party to another hereunder or in connection with this Agreement shall
be in the English language (being the language of negotiation of this
Agreement) and in the event that such notice, instrument, certificate or
other communication or this Agreement is translated into any other
language, the English language text shall prevail.
22. INVALIDITY
Each of the provisions of this Agreement is severable. If any such
provision is or becomes illegal, invalid or unenforceable in any respect
under the law of any jurisdiction, the legality, validity or
enforceability in that jurisdiction of the remaining provisions of this
Agreement of that provision or any other provision of this Agreement,
shall not in any way be affected or impaired thereby.
23. AGREEMENT TO CONTINUE IN FULL FORCE AND EFFECT
This Agreement shall, to the extent that it remains to be performed,
continue in full force and effect notwithstanding Completion.
24. CONFIDENTIALITY
24.1 The Vendor hereby undertakes with the Purchaser that it shall both during
and after the term of this Agreement keep confidential and not directly or
indirectly reveal, report, publish, disclose or transfer or use for his
own or any other purposes Confidential Information except:-
24.1.1 in the circumstances set out in CLAUSE 24.2; or
24.1.2 to the extent otherwise expressly permitted by this Agreement; or
-24-
24.1.3 with the prior consent in writing of the party to whose affairs
such Confidential Information relates. The circumstances referred
to in CLAUSE 24.1.1 above are:-
24.2.1 where the Confidential Information, before it is furnished to or
comes into the knowledge or possession of the Vendor, is in the
public domain; or
24.2.2 where the Confidential Information, after it is furnished to or
comes into the knowledge or possession of the Vendor enters the
public domain otherwise than as a result of (a) a breach by the
Vendor of its obligations in this CLAUSE 24 or (b) a breach by the
person who disclosed that Confidential Information of his
confidentiality obligation and the Vendor is aware of such breach;
or
24.2.3 if and to the extent the Vendor makes disclosure of the
Confidential Information to any person:
(a) in compliance with any requirement of law; or
(b) in response to a requirement of the Stock Exchange or the Panel
on Take-overs and Mergers or any other applicable Competent
Authority to which the Vendor is subject where such requirement
has the force of law; or
(c) in order to obtain tax or other clearances or consents from the
Inland Revenue or other relevant taxing or regulatory
authorities; or
24.2.4 to the consultants and professional advisers of the Vendor, in each
case on the basis that they will comply with the Vendor's
obligations of confidence hereunder,
PROVIDED THAT any such information disclosable pursuant to CLAUSES 24.2.3
(A), (B) OR (C) shall be disclosed to the extent permitted by law and only
after consultation with the other party.
24.3 The restrictions contained in this clause shall continue to apply after
the Completion without limit in time.
25. GOVERNING LAW AND JURISDICTION
25.1 English law
This Agreement shall be governed by and construed in accordance with
English law.
25.2 Courts of England and Wales
The parties to this Agreement irrevocably agree that the courts of England
shall have the non-exclusive jurisdiction to settle any dispute which may
arise out of or in connection with this Agreement and that accordingly any
Proceedings may be brought in such courts.
25.3 Acceptance by Vendor and Purchaser
-25-
For the avoidance of doubt, the Vendor and the Purchaser expressly and
specifically agree and accept the terms of this clause and signs below in
recognition of this fact.
AS WITNESS the hands of the parties or their duly authorised representatives on
the date first appearing at the head of this Agreement.
-26-
SCHEDULE 1
THE SELLERS
PART 1 - ASPECT VISION CARE LIMITED
(1) (2)
Name address and fax number (if any) Number of Shares
▇▇▇▇ ▇▇ ▇▇▇▇▇ 200,899
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 66,966
▇▇▇ ▇▇▇▇▇▇▇▇▇ 105,233
▇▇▇ ▇▇▇▇▇ 105,233
▇▇▇▇▇▇ ▇▇▇▇▇ 60,421
▇▇▇▇ ▇▇▇▇▇▇▇▇ 15,105
PART 2 - NEW FOCUS HEALTH CARE LIMITED
(1) (2)
Name address and fax number (if any) Number of Shares
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 221,303
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 261,302
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 208,303
▇▇▇▇▇▇▇ Family Trust 33,000
-27-
PART 3 - CONTACT LENS TECHNOLOGIES LIMITED
(1) (2)
Name address and fax number (if any) Number of Shares
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 350
▇▇▇▇▇▇ ▇▇▇▇▇ 200
▇▇▇▇ ▇▇▇▇▇▇▇▇ 25
▇▇▇▇ ▇▇▇▇▇ 25
PART 4 - ASPECT VISION ITALIA s.r.l.
(1) (2)
Name address and fax number (if any) Value of Quotas (Lire)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 177,687,000
Fabrizio Lambertini 11,464,000
-28-
SCHEDULE 2
PART 1 - THE COMPANIES
Name: NEW FOCUS HEALTHCARE LIMITED
Date and place of 12 September 1984
incorporation: England and Wales
Registered number: 1847802
Registered office: ▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Authorised share capital: 'L'30,000 divided into 500,000 ordinary shares of
1p each, 900,000 convertible redeemable preferred
ordinary shares of 1p each 1,600,000 preferred
ordinary shares of 1p each
Issued share capital: 'L'7,239.08
Registered and beneficial owner Number and Class
------------------------------- ----------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Galley 221,303 Ordinary
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 261,302 Ordinary
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 208,303 Ordinary
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and 33,000 Ordinary
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ as trustees
for the ▇▇ ▇▇▇▇▇▇▇ Family
Trust.
Directors: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Galley
Secretary: Ian ▇▇▇▇▇▇ ▇▇▇▇▇▇
Auditor: ▇▇▇▇▇▇▇ ▇▇▇▇ Chartered Accountants
Bank: National Westminster Bank plc
Accounting reference date: 31 March
-29-
Name: CONTACT LENS TECHNOLOGIES LIMITED
Date and place of 14 March 1994
incorporation: England and Wales
Registered number: 02908056
Registered office: ▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Authorised share capital: 'L'5,000,000 divided into 5,000,000 ordinary shares
of 'L'1 each
Issued share capital: 'L'1,000
Registered and beneficial owner Number and class
------------------------------- ----------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Galley 200 Ordinary
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 350 Ordinary
▇▇▇▇▇▇ ▇▇▇▇▇ 200 Ordinary
▇▇▇▇ ▇▇▇▇▇▇▇▇ 25 Ordinary
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ 25 Ordinary
▇▇▇▇▇ ▇▇▇▇▇▇ 200 Ordinary
Directors: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
Secretary: Ian ▇▇▇▇▇▇ ▇▇▇▇▇▇
Auditor: ▇▇▇▇▇▇▇ ▇▇▇▇ Chartered Accountants
Bank: National Westminster Bank plc
Accounting reference date: 31 March
-30-
Name: ASPECT VISION CARE LIMITED
Date and place of 17 September 1973
incorporation: England and Wales
Registered number: 01134463
Registered office: ▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Authorised share capital: 'L'5,000,000 divided into 5,000,000 ordinary shares
of 'L'1 each
Issued share capital: 'L'1,510,522
Registered and beneficial owner Number and class
------------------------------- ----------------
New Focus Healthcare Limited 994,428 Ordinary
▇ ▇ ▇▇ ▇▇▇▇▇ 183,048 Ordinary
I A ▇▇▇▇▇▇▇▇▇ 97,680 Ordinary
▇ ▇ ▇▇▇▇▇ 97,680 Ordinary
C T ▇▇ ▇▇▇▇▇ 62,160 Ordinary
B ▇▇▇▇▇ 60,421 Ordinary
I ▇▇▇▇▇▇▇▇ 15,105 Ordinary
Directors: ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Secretary: Ian ▇▇▇▇▇▇ ▇▇▇▇▇▇
Auditor: ▇▇▇▇▇▇▇ ▇▇▇▇ Chartered Accountants
Bank: National Westminster Bank plc
Accounting reference date: 31 March
-31-
Name: ASPECT VISION ITALIA s.r.l.
Date of incorporation: 15 April 1992
Registered number: 325566
Taxpayer number: 10653750157
Registered office: 27 Via ▇. ▇▇▇▇▇▇▇, Milan
Capital: Lire 590 million (registered, subscribed and paid)
Capital holders:
Name Value of capital (Lire)
---- -----------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 177,687,000
Fabrizio Lambertini 11,464,000
Aspect Vision Care Limited 400,849,000
Directors: Giacorno ▇▇▇▇▇▇
▇▇▇▇▇▇▇ D Galley
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
-32-
PART 2 - THE SUBSIDIARIES
Name: FOCUS SOLUTIONS LIMITED
Date and place of 7 May 1987
incorporation: England and Wales
Registered number: 02128972
Registered office: ▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Authorised share capital: 'L'100 divided into 100 ordinary shares of 'L'1 each
Issued share capital: 'L'100
Registered and beneficial owner Number and class
------------------------------ ----------------
Aspect Vision Care Limited 99 Ordinary
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Galley 1 Ordinary
Directors: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Galley
Secretary: Ian ▇▇▇▇▇▇ ▇▇▇▇▇▇
Auditor: ▇▇▇▇▇▇▇ ▇▇▇▇ Chartered Accountants
Bank: N/A
Accounting reference date: 31 March
-33-
Name: ASPECT SPECIALITY LIMITED
Date and place of 2 March 1988
incorporation: England and Wales
Registered number: 02226443
Registered office: ▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Authorised share capital: 'L'5,000,000 divided into 5,000,000 ordinary shares
of 'L'1 each
Issued share capital: 'L'10,000
Registered and beneficial owner Number and class
------------------------------ ----------------
Aspect Vision Care Limited 10,000 Ordinary
Directors: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Galley
Secretary: Ian ▇▇▇▇▇▇ ▇▇▇▇▇▇
Auditor: ▇▇▇▇▇▇▇ ▇▇▇▇ Chartered Accountants
Bank:
Accounting reference date: 31 March
-34-
Name: AVERLAN COMPANY LIMITED
Date and place of 22 October 1971
incorporation: England and Wales
Registered number: 01028262
Registered office: ▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
Authorised share capital: 'L'62,065 divided into 40,000 A ordinary shares of
'L'1 each and 22,065 B ordinary shares of 'L'1 each
Issued share capital: 'L'57,143 divided into 40,000 A ordinary shares of
'L'1 each and 17,143 B ordinary shares of 'L'1 each
Registered and beneficial owner Number and class
------------------------------- ----------------
Aspect Vision Care Limited 40,000 A Ordinary Shares
Aspect Vision Care Limited 17,143 B Ordinary Shares
Directors: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Secretary: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Auditor: ▇▇▇▇▇▇▇ ▇▇▇▇ Chartered Accountants
Bank:
Accounting reference date: 31 March
-35-
Name: ASPECT CONTACT LENSES LIMITED
Date and place of 24th September 1986
incorporation: England and Wales
Registered number: 2057962
Registered office: ▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Authorised share capital: 'L'100 divided into 100 ordinary shares of 'L'1 each
Issued share capital: 'L'100
Registered and beneficial owner Number and class
------------------------------- ----------------
Aspect Vision Care Limited 99
▇▇▇▇ ▇▇ ▇▇▇▇▇ (as nominee 1
for Aspect Vision Care
Limited)
Directors: ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
J de ▇▇▇▇▇
▇ ▇▇ ▇▇▇▇▇
Secretary: Ian ▇▇▇▇▇▇ ▇▇▇▇▇▇
Auditor: ▇▇▇▇▇▇▇ ▇▇▇▇ Chartered Accountants
Bank: N/A
Accounting reference date: 31 March
-36-
SCHEDULE 3
PROPERTIES
PART 1 - GENERAL DESCRIPTION
(1) (2) (3) (4)
Title number and
Description of Registered or grade of title
Property Tenure unregistered (if registered)
------------- ------ -------------- -----------------
Former Thermo King
Building Freehold Registered HP 359537
Hamble
▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ Registered HP 513392
Hamble
▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ Registered HP 525215
Hamble
-37-
PART 2 - LEASES
(1) (2) (3) (4) (5)
Property Date Term Parties Current yearly rent
-------- ---- ---- ------- --------------------
▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇ 12th January 1983 25 years Gibbswood Builders Limited(1) No details of current rent
Trading Estate, Averlan Company Limited (2)
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇▇ 18th June 1992 3 years Hillgate Industrial Estates Ltd(1) No details of current
Road New Focus Health Care Ltd(2) rent
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇ 31st August 1995 3 years ▇▇▇▇▇▇ Intercom Limited(1) 'L'40,000 (exclusive of VAT)
Industrial Estate, Aspect Vision Care Ltd(2)
Billitt Lane
Berkhamstead
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇ July 1995 1 year Aspect Vision Italia s.r.l.
Roma, Italy ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Via ▇▇▇▇▇▇▇▇ 5 7 July 1995 6 years Aspect Vision Italia s.r.l.
Milano Italy Ralari, Spa
-38-
SCHEDULE 4
A: Granted Patents
----------------------------------------------------------------------------
NO. COUNTRY PATENT NO. STATUS
----------------------------------------------------------------------------
1. Australia 629280 Granted Patent
----------------------------------------------------------------------------
2. Great Britain 2,226,977 A Lapsed and replaced by
European Patent
----------------------------------------------------------------------------
3. Singapore 1137/93 Registered European Patent
----------------------------------------------------------------------------
4. Europe 0,383,425 Granted Patent Austria,
Belgium, Switzerland,
Liechtenstein, Germany,
Denmark, Spain, France,
Greece, Italy, Luxembourg,
Netherlands, Sweden
----------------------------------------------------------------------------
5. Taiwan 39682 Granted Patent
----------------------------------------------------------------------------
6. USA 5,087,015 Granted Patent
----------------------------------------------------------------------------
B: Patent Applications
----------------------------------------------------------------------------
COUNTRY APPLICATION NO. STATUS
----------------------------------------------------------------------------
7. Canada 2,007,536 Pending
----------------------------------------------------------------------------
8. Japan 3697/90 Pending
----------------------------------------------------------------------------
9. S Korea 90355 Pending
----------------------------------------------------------------------------
-39-
SCHEDULE 5
THE WARRANTIES
PART 1
1. PRELIMINARY
1.1 Power to contract
The Vendor has full power to enter into and perform this Agreement, the
Deed of Tax Covenant and such other of the documents in the agreed terms
as he is a party to respectively and all such agreements and deeds
constitute binding obligations on the Vendor in accordance with their
terms.
2. THE COMPANY
2 The particulars of each Group Company set out in schedule 2 are true and
complete.
2.2 Memorandum and articles of association
The copies of the memorandum and articles of association of each Group
Company which are comprised in the EXHIBIT C are true and complete in all
respects and have embodied in them or annexed to them a copy of every such
resolution and agreement as is referred to in section 380(4), CA 85 and
each Group Company has at all times carried on its business and affairs in
all respects in accordance with its memorandum and articles of association
and all such resolutions and agreements.
2.3 Statutory returns
Each Group Company has complied with the provisions of the Companies Acts
and all returns, particulars, resolutions and other documents required to
be filed with or delivered to the Registrar of Companies or to any other
authority whatsoever by a Group Company have been correctly and properly
prepared and so filed or delivered.
2.4 Share capital
2.4.1 There is no Encumbrance or any form of agreement (including
conversion rights and rights of pre-emption) on, over or affecting
the Shares being transferred by the Vendor or any unissued shares,
debentures or other securities of any Group Company and there is no
agreement or commitment to give or create any of the foregoing. No
claim has been made by any person to be entitled to any of the
foregoing and no person has the right (exercisable now or in the
future and whether contingent or not) to call for the issue of any
share or loan capital of any Group Company under any of the
foregoing.
-40-
2.4.2 No Group Company has at any time:-
(a) repaid, redeemed or purchased (or agreed to repay, redeem or
purchase) any of its shares, or otherwise reduced (or agreed
to reduce) its issued share capital or any class of it or
capitalised (or agreed to capitalise) in the form of shares,
debentures or other securities or in paying up any amounts
unpaid on any shares, debentures or other securities, any
profits or reserves of any class or description or passed
(or agreed to pass) any resolution to do so; or
(b) directly or indirectly provided any financial assistance for
the purpose of the acquisition of shares in the Company or
any holding company of the Company or for the purpose of
reducing or discharging any liability incurred in such an
acquisition whether pursuant to sections 155 and 156, CA 85
or otherwise.
2.5 Solvency
2.5.1 No Group Company is insolvent or unable to pay its debts
according to section 123, Insolvency ▇▇▇ ▇▇▇▇.
2.5.2 No order has been made or petition presented or resolution
passed for the winding up of any Group Company and no distress,
execution or other process has been levied on any of their
assets. No administrative or other receiver has been appointed
by any person over the business or assets of any Group Company
or any part thereof, nor has any order been made or petition
presented for the appointment of an administrator in respect of
any Group Company.
3. CONNECTED BUSINESS
3.1 Subsidiaries
The particulars of the Subsidiaries set out in PART 2 of SCHEDULE 2
are true and complete and the shares of the Subsidiaries are held and
owned as shown in PART 2 of SCHEDULE 2 free from all Encumbrances and
with all rights now or hereafter attaching thereto.
3.2 Connected transactions
No Group Company:-
3.2.1 is or has agreed to become the holder or other owner of any
class of any shares, debentures or other securities of any
other company (whether incorporated in the United Kingdom or
elsewhere) other than the Subsidiaries;
3.2.2 has agreed to become a subsidiary of any other company or under
the control of any group of companies or consortium;
-41-
3.2.3 is or has agreed to become a member of any partnership, joint
venture, consortium or other unincorporated association other
than a recognised trade association or agreement or arrangement
for sharing commissions or other income;
3.2.4 has a branch, place of business or substantial assets outside
England and Wales or any permanent establishment (as that
expression is defined in any relevant Order in Council made
pursuant to section 788, Taxes Act) in any country outside the
United Kingdom; and
3.2.5 save as otherwise Disclosed pursuant to PARAGRAPHS 3.2.1 TO
3.2.4, has any interest, legal or beneficial, in any shares or
other capital or securities or otherwise howsoever in any other
firm, company, association, venture or legal person or entity.
4. ACCOUNTS
4.1 General
The Accounts:-
4.1.1 were prepared in accordance with the requirements of all
relevant statutes, with good accounting principles and
practices generally accepted at the date hereof in the United
Kingdom (including the Accounting Standards) for companies
carrying on a similar business to that of the Group Companies
and on a basis consistent with preceding accounting periods of
the Group Company concerned and with the books of account of
the Group Company concerned and are true and accurate in all
material respects; and
4.1.2 show a true and fair view of the assets and liabilities of the
relevant Group Company at the Balance Sheet Date and of its
profits for the financial year ended on such date.
4.2 Stock-in-trade and work-in-progress
The basis of valuation for stock-in-trade and work-in-progress has
remained in all material respects consistent with that adopted for
the purpose of the Group's audited accounts of the Group Company
concerned in respect of the beginning and end of each of the
accounting periods of the Group Company for the last three financial
years.
4.3 Profits
The profits of the Group Companies for the three years ended on the
Balance Sheet Date as shown by the Accounts and by the audited
accounts of the Company for previous periods delivered to the
Purchaser and the trend of profits shown by them have not (except as
disclosed in them) been affected to a material extent by
inconsistencies of accounting practices, by the inclusion of
non-recurring items of income or expenditure, by transactions entered
into otherwise than on normal commercial terms or so far as the
Vendor is aware by any other factors rendering such profits for all
or any of such periods exceptionally high or low.
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4.4 Management Accounts
The Management Accounts:-
4.4.1 have been prepared on a proper and consistent basis in
accordance with applicable standards, principles and practices
generally accepted in the United Kingdom and on a basis
consistent with the Accounts; and
4.4.2 without prejudice to the generality of the foregoing, do not
reflect the turnover and the cost of sales of the Group for the
period they cover in a materially inaccurate way.
5. POST-BALANCE SHEET DATE EVENTS
5.1 Since the Balance Sheet Date each Group Company:-
5.1.1 has carried on its business in the ordinary and usual course
and without entering into any transaction, assuming any
liability or making any payment not provided for in the
Accounts which is not in the ordinary course of business and
without any interruption or alteration in the nature, scope or
manner of its business;
5.1.2 has not experienced any material deterioration in its financial
position or, so far as the Vendor is aware, in its prospects or
turnover or, so far as the Vendor is aware, suffered any
diminution of its assets by the wrongful act of any person and
no Group Company has had its business, profitability or
prospects materially and adversely affected by the loss of any
important customer or source of supply or, so far as the Vendor
is aware, by any other factor and, so far as the Vendor is
aware, there are no facts which are likely to give rise to any
such effects;
5.1.3 has not acquired or disposed of or agreed to acquire or dispose
of any assets or assumed or incurred or agreed to assume or
incur any material liabilities (actual or contingent) otherwise
than in the ordinary course of business;
5.1.4 has not declared, made or paid any dividend, bonus or other
distribution of capital or income (whether a qualifying
distribution or otherwise) and (excluding fluctuations in
overdrawn current accounts with bankers) no loan or loan
capital of any Group Company has been repaid in whole or in
part or has become due or is liable to be declared due by
reason of either service of a notice or lapse of time or
otherwise howsoever;
5.1.5 has not made any change to the remuneration, terms of
employment, emoluments or pension benefits of any present or
former director, officer or employee of any Group Company who
on the Balance Sheet Date was entitled to remuneration in
excess of 'L'30,000 per annum and has not appointed or employed
any additional director, officer or employee entitled as
aforesaid;
5.1.6 has not entered into contracts involving capital expenditure in
an amount exceeding 'L'100,000 in the aggregate;
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5.1.7 has not become aware that any event has occurred which would
entitle any third party to terminate any contract or any
benefit enjoyed by it or call in any money before the normal
due date therefor;
5.1.8 has not purchased stocks in quantities or at prices materially
greater than was the practice of the relevant Group Company
prior to the Balance Sheet Date;
5.1.9 where applicable, has paid its creditors within the times
agreed with such creditors and does not have any debts
outstanding which are overdue for payment by more than
four weeks;
5.1.10 has not borrowed or raised any money or taken any financial
facility (except such short term borrowings from bankers as are
within the amount of any overdraft facility which was available
to the relevant Group Company at the Balance Sheet Date) or
since the Balance Sheet Date renegotiated or received any
notice from any banker that such banker wishes to renegotiate
any overdraft facility available to the relevant Group Company
at the Balance Sheet Date;
5.1.11 has not made any change to its accounting reference date and
no accounting period of a Group Company has ended since the
Balance Sheet Date;
5.1.12 (including any class of its members) has not passed any
resolution whether in general meeting or otherwise.
6. TRANSACTIONS WITH THE SELLERS, DIRECTORS AND CONNECTED PERSONS
6.1 Loans and debts
There is not outstanding:-
6.1.1 any indebtedness or other liability (actual or contingent)
owing by any Group Company to any Seller or Director or any
Connected Person or owing to any Group Company by any Seller,
or Director or any Connected Person; or
6.1.2 any guarantee or security for any such indebtedness or
liability as aforesaid.
6.2 Arrangements with Connected Persons
There is not outstanding any agreement, arrangement or
understanding (whether legally enforceable or not) to which any
Group Company is a party and in which any Seller, Director or
former director of any Group Company or any Connected Person is
or has been interested whether directly or indirectly (other
than any form of service agreement).
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6.3 Competitive interests
6.3.1 Neither the Vendor nor, so far as the Vendor is aware, any
Seller, Director, former director of any Group Company nor any
Connected Person, either individually, collectively or with any
other person or persons, has any estate, right or interest,
directly or indirectly, in any business (including, without
prejudice to the generality of the foregoing, Ocular Sciences,
Inc.) other than that now carried on by the Group Company which
is or is likely to be or become competitive with the Business
save as registered holder or other owner of any class of
securities of any company if such class of securities is listed
on any recognised investment exchange (as defined in the
Financial Services Act 1986) and if such person (together with
Connected Persons and Affiliates) holds or is otherwise
interested in less than five per cent of such class.
6.3.2 Neither the Vendor nor, so far as the Vendor is aware, the
other Sellers either individually, collectively or with any
other person or persons are interested in any way whatsoever in
any Intellectual Property used and not wholly owned by the
Company.
7. FINANCE
7.1 Borrowings
The total amount borrowed by any Group Company from any source does
not exceed any limitation on its borrowing contained in the articles
of association of any Group Company concerned or in any debenture or
loan stock trust deed or instrument or any other document executed by
any Group Company concerned and the amount borrowed by each Group
Company from each of its bankers does not exceed the overdraft
facility agreed with such banker. No Group Company has outstanding
loan capital.
7.2 Financial facilities
EXHIBIT D contains full details and true and correct copies of all
documents relating to all debentures, acceptance lines, overdrafts,
loans or other financial facilities outstanding or available to each
Group Company and all Encumbrances to which any asset of any Group
Company is subject. Neither the Seller nor any Group Company has done
anything whereby the continuance of any such facility or Encumbrance
in full force and effect might be affected or prejudiced.
7.3 Grants
Full details of all material grants made to any Group Company in the
last three years have been disclosed. So far as the Vendor is aware
no act or transaction has been effected in consequence whereof any
Group Company is or may be held liable to refund in whole or in part
any grant or loan received by virtue of any statute or in consequence
whereof any such grant or loan for which application has been made by
it will not or may not be paid or will or may be reduced.
7.4 Options and guarantees
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7.4.1 No Group Company is responsible for the indebtedness of any
other person nor party to any option or pre-emption right or
any guarantee, suretyship or any other obligation (whatever
called) to pay, purchase or provide funds (whether by the
advance of money, the purchase of or subscription for shares or
other securities or the purchase of assets or services or
otherwise) for the payment of, or as an indemnity against the
consequence of default in the payment of, any indebtedness of
any other person.
7.4.2 So far as the Vendor is aware no person other than a Group
Company has given any guarantee of or security for any
overdraft, loan or loan facility granted to any other Group
Company.
7.5 Payment of obligations
There has been no material delay by any Group Company in the payment
of any material obligation due for payment.
8. THE PROPERTIES
For the purposes of this paragraph 8 the term "Freehold Properties"
shall mean the freehold properties listed at schedule 3.
8.1 General
8.1.1 The Properties comprise all the land and premises owned,
controlled, used or occupied by the Group and all the rights or
interests vested in the Group relating to any land and premises
at the date hereof and the particulars set out in SCHEDULE 3
are true and accurate and not misleading.
8.1.2 The relevant Group Company has disposed of all its rights,
title and interest in and to any properties (other than the
Properties) and has carried out its obligations in relation to
those properties and the disposal of the rights, title and
interest therein in such a manner as to ensure it has no
liability (whether actual, contingent or otherwise) in relation
thereto.
8.1.3 Each Group Company has in its possession or unconditionally
held to its order all the documents of title and other
documents and papers relating to each of the Properties.
8.1.4 So far as the Vendor is aware, the Freehold Properties, the
title deeds and documentation relating thereto, and all
fixtures and fittings and plant, equipment and other chattels
on the Freehold Properties, are not subject to any Encumbrance
or overriding interest (as defined in section 70, Land
Registration Act 1925) nor is there any person in possession or
occupation of or who has or claims any right of any kind in
respect of any of the Freehold Properties adversely to the
estate, interest, right or title therein of any Group Company.
8.1.5 The Leasehold Properties, the title deeds and documentation
relating thereto, and all fixtures and fittings and plant,
equipment and other chattels on the Leasehold Properties, are
not subject to any Encumbrance or
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overriding interest (as defined in section 70, Land
Registration Act 1925) nor is there any person in possession
or occupation of or who has or claims any right of any kind in
respect of any of the Leasehold Properties adversely to the
estate, interest, right or title therein of any Group Company.
8.1.6 So far as the Vendor is aware, there are no rights, interests,
covenants, restrictions, reservations, licences or easements
nor any disputes or outstanding notices (whether given by a
landlord, a local authority or any other person) nor (without
prejudice to the generality of the foregoing) any other matters
or things which adversely affect the value of any of the
Leasehold Properties or the proper use and enjoyment of any of
the Leasehold Properties.
8.1.7 None of the Properties is subject to the payment of any
outgoings other than the usual rates and taxes and all sums due
to date in respect thereof have been paid.
8.1.8 No proposal relating to the rateable value of any of the
Properties has been determined by the Valuation and Community
Charge Tribunal or Land Tribunal and there is no subsisting
proposal to challenge the rateable value of any of the
Properties.
8.1.9 Each of the Leasehold Properties:-
(a) enjoys access and egress over roads and footpaths which have
been adopted by the appropriate highway authority and are
maintainable at the public expense;
(b) drains foul sewage and surface water to public sewers, is
served by water, electricity, gas and telephone utilities
and either the pipes, sewers, wires, cables, conduits and
other conducting media serving the Properties connect
directly to the mains without passing through land in the
occupation or ownership of any third party; and
(c) has the benefit of all other easements and rights necessary
for its proper use and enjoyment and such easements and
rights are held on terms which do not entitle any person to
terminate or curtail the same.
8.1.10 No Group Company has entered into any commitment (whether
legally binding or not) and no Group Company is a party to any
subsisting agreement with any person or company whereby a fee
(including but not limited to an abort fee) will be paid to
such person or company in respect of the management, use,
development, letting or sale of any of the Leasehold
Properties.
8.1.11 There are no unpaid charges for the construction or adoption
of any road or sewer or other service serving the Leasehold
Property.
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8.2 Planning
8.2.1 There are no lawfully enforceable restrictions or prohibitions
which restrict or prohibit the existing use of any of the
Leasehold Properties.
8.2.2 The existing use of each of the Leasehold Properties is the
permitted use under the Town and Country Planning legislation
(which term includes the Town and Country Planning ▇▇▇ ▇▇▇▇,
the Planning (Listed Buildings and Conservation Areas) ▇▇▇
▇▇▇▇, the Planning (Hazardous Substances) ▇▇▇ ▇▇▇▇ and the
Planning (Consequential Provisions) Act 1990) and is not a
temporary or personal use.
8.2.3 All development carried out in relation to each of the
Properties has been lawful and all necessary consents and
permissions have been obtained for such development and the
aforesaid do not contain any onerous or unusual conditions.
8.2.4 No Group Company is aware of any resolution, proposal, order or
act made or contemplated for the compulsory acquisition of any
of the Leasehold Properties by the local or any other authority
nor any outstanding order, notice or other requirement of any
such authority that affects the existing use of any of the
Leasehold Properties or involves expenditure in compliance with
it nor any other circumstances which may result in any such
order or notice being made or served or which may otherwise
affect any of the Leasehold Properties.
8.2.5 None of the buildings or other structures or erections on any
of the Leasehold Properties have been listed under section 1,
Planning (Listed Buildings and Conservation Areas) ▇▇▇ ▇▇▇▇
("PLBCA") nor has the relevant local authority authorised the
service of any building preservation notice under section 3,
PLBCA or any repairs notice under section 48, PLBCA in respect
of any of the Leasehold Properties or any building structure or
erection thereon nor has the relevant local authority made or
resolved to make any noise abatement zone order under section
63, Control of Pollution ▇▇▇ ▇▇▇▇ for any of the areas in which
any of the Leasehold Properties are included.
8.2.6 None of the Leasehold Properties is within an area of
archaeological importance nor is any building or erection on
any of the Leasehold Properties a scheduled monument within the
meaning set out in the Ancient Monuments and ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇.
8.3 Leasehold Properties
8.3.1 Where any of the Properties is leasehold, particulars of each
lease vested in a Group Company are set out in PART 2 of
SCHEDULE 3 and in relation to each such lease:-
(a) the landlord and all superior landlords had good title to
grant the lease and any superior leases respectively and all
abstracts and epitomes of all superior titles have been
placed with the title deeds to the Property to which the
lease relates;
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(b) any consent necessary for the grant of the lease has been
obtained and a copy of the consent is with the title deeds
to the Property to which the lease relates;
(c) where the current annual rent is not the same as the annual
rent originally reserved in the lease, evidence of its
agreement or determination has been placed with the
documents of title and no rent reviews are or should be
currently under negotiation or the subject of a reference to
an expert or arbitrator or the Courts;
(d) the receipt for the payment of rent which fell due
immediately prior to the date hereof is unqualified;
(e) no notices of breaches of any covenants or conditions
contained in the lease have been given or received on the
part of either the landlord or the relevant Group Company
and the landlord has not refused to accept rent or made any
complaint of breach of covenant;
(f) no alterations, improvements or additions have been made to
the Property to which the lease relates since the grant of
the lease or in respect of all such alterations,
improvements or additions made all necessary consents and
approvals have first been obtained where required;
(g) sections 24 to 28, Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ have not
been excluded; and
(h) no surety has been released either expressly or by
implication.
8.4 Condition and Repair
8.4.1 There are (and there have been) no structural or other defects
in respect of the buildings and structures on or comprising any
of the Properties and all such buildings and structures are in
good and substantial repair and condition.
8.4.2 So far as the Vendor is aware, in respect of the Freehold
Properties there are no latent or patent defects in the
buildings and structures on or comprising the Properties and in
the construction of the buildings and its structures on or
comprising the Properties or any alterations thereto none of
the following materials were used:-
(a) high alumina cement in structural elements;
(b) wood wool slabs in permanent formwork to concrete or in
structural elements;
(c) calcium chloride in admixtures for use in reinforced
concrete;
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(d) asbestos or asbestos containing products as defined in the
Asbestos Regulations 1969 and 1987;
(e) naturally occurring aggregates for use in reinforced
concrete which do not comply with British Standard
Specification 882:1983 and naturally occurring aggregates
for use in concrete which do not comply with the provisions
of British Standard Specification 8110:1985;
(f) urea formaldehyde foam or materials which may release
formaldehyde in quantities which may be hazardous with
reference to the limits set from time to time by the Health
and Safety Executive;
(g) materials which are generally comprised of mineral fibres
either man-made or naturally occurring which have a diameter
of 3 microns or less or which contain fibre not sealed or
otherwise stabilised to ensure that fibre migration is
prevented; or
(h) any other materials not in accordance with good design
standards and good building practice at the time of
construction of any such buildings.
9. ENVIRONMENTAL
9.1 Compliance with Environmental Law
The Property and the Further Property has been used, and the Business
has been conducted, at all times in compliance with Environmental Law
and with the terms and conditions relating to the Environment under
leases and other agreements applicable to the Properties.
9.2 Permits
9.2.1 All Permits have been obtained and have been disclosed to the
Purchaser and are in full force and effect and their terms and
conditions have been complied with. No Permits are limited in
duration or subject to onerous conditions.
9.2.2 No circumstance exists which may or is liable to result to the
detriment of any Group Company in modification, suspension, or
revocation of any Permit or may or is likely to result in any
such Permit not being extended, renewed, granted or (where
necessary) transferred and no Environmental Law currently
adversely affects the use of any of the Properties or the
conduct of the Business.
9.2.3 No work, repairs, remedy, construction, or capital expenditure
is or may be required under any Environmental Law or in order
to carry on lawfully the Business at the Property.
9.3 Hazardous Matter
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No Hazardous Matter has been generated, used, kept, treated,
transported, spilled, deposited, disposed of, discharged, emitted or
otherwise dealt with or managed at, on, under or from any of the
Properties.
9.4 No requirement for Remedial Action
There are no events, states of affairs, conditions, circumstances,
activities, practices, incidents, or actions (including without
limitation the generation, use, treatment, storage, transport,
deposit, disposal, discharge or management of Hazardous Matter) which
have occurred or are occurring or have been or are in existence at,
in, under or about the Property or the Further Property or in or
about the conduct of the Business which may or are liable to give
rise to Environmental Liability including, for the avoidance of
doubt, under the Contaminated Land Provisions.
9.5 No storage tanks
No storage tanks of any kind, including related pipework, are or have
been located at any time whatsoever on or under any of the
Properties.
9.6 Notice of claims
At no time has the any member of the Group had knowledge of and/or
received any notice claim or other communication alleging any actual
or potential Environmental Liability.
10. OTHER ASSETS
10.1 Title
10.1.1 Each Group Company has legal and beneficial title to all
assets of relevant Group Company which are included in the
Accounts or have otherwise been represented as being the
property of relevant Group Company and (except for assets
disposed of or realised by the relevant Group Company in the
ordinary course of business) each Group Company retains such
title to all such assets free from any Encumbrance, hire or
hire purchase agreement or leasing agreement or agreement for
payment on deferred terms and all such assets are in the
possession and control of relevant Group Company and are sited
within the United Kingdom.
10.1.2 No Group Company has acquired or agreed to acquire any
material asset on terms that title to such asset does not pass
to the relevant Group Company until full payment is made.
10.2 Encumbrances
Each Group Company has legal and beneficial title to all assets
which have been acquired by the relevant Group Company since
the Balance Sheet Date and the same are in the possession and
control of the relevant Group Company and none is the subject
of any Encumbrance nor has any Group Company created or agreed
to create any Encumbrance or entered into any factoring
arrangement, hire-purchase, conditional sale or credit sale
agreement and in respect of any such Encumbrance, arrangement
or
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agreement disclosed there has been no default by the relevant
Group Company in the performance or observance of any of the
provisions thereof.
10.3 Condition of assets
The plant and machinery (including fixed plant and machinery) and all
vehicles and office and other equipment shown in the Accounts or
acquired since the Balance Sheet Date or otherwise used in connection
with the Business which have not been disposed of in the ordinary
course of business:-
10.3.1 so far as the Vendor is aware, do not contravene any
requirement or restriction having the force of law;
10.3.2 are in satisfactory repair and condition, fully serviceable
and in satisfactory working order;
10.3.3 are each capable of doing the work for which they were
designed and/or purchased; and
10.3.4 are not surplus to the Group's requirements.
11. INSURANCE
11.1 Extent of insurance
All the assets of each Group Company which are of an insurable nature
are and have at all material times been fully insured to their full
replacement value with a well established and reputable insurer
against fire and all other risks normally insured against by
companies carrying on similar businesses or owning property of a
similar nature to those of the relevant Group Company and each Group
Company is and has at all material times been adequately covered
against all legal liability and risks normally insured against by
such companies (including liability to employees or third parties for
personal injury or loss or damage to property, product liability and
loss of profit).
11.2 Premiums and claims
Particulars of all policies of insurance of each Group Company now in
force are set out in EXHIBIT E and such particulars are true and
correct and all premiums due on such policies have been duly paid and
so far as the Vendor is aware all such policies are valid and in
force. So far as the Vendor is aware there are no circumstances which
might lead to any liability under such insurance being avoided by the
insurers or the premiums being increased. There is no claim
outstanding under any such policies and so far as the Vendor is aware
there are no circumstances likely to give rise to a claim.
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12. LITIGATION
12.1 Litigation and arbitration proceedings
12.1.1 Save as plaintiff in the collection of debts (not exceeding
'L'50,000 in the aggregate) arising in the ordinary course of
business, no Group Company is now engaged in any litigation
or arbitration proceedings and there are no lawsuits or
arbitration proceedings pending or threatened by or, so far as
the Vendor is aware, against any Group Company or any person
for whose acts or defaults any Group Company may be vicariously
liable.
12.1.2 No Group Company has, in the three years prior to the date of
this Agreement been involved in any material litigation,
arbitration or material dispute with any person who is or was a
supplier or customer of importance to the Group or the
Business, or where such litigation, arbitration or dispute
resulted so far as the Vendor is aware in adverse publicity or
loss of goodwill.
12.1.3 So far as the Vendor is aware there is no matter or fact in
existence which might give rise to any legal proceedings or
arbitration involving any Group Company including any which
might form the basis of any criminal prosecution against any
Group Company.
12.2 Injunctions, etc
No injunction or order for specific performance has been granted
against any Group Company within the last three years.
12.3 Orders and judgements
No Group Company is subject to any order or judgment given by any
court or governmental agency which is still in force and has not
given any undertaking to any court or to any third party arising out
of any legal proceedings.
13. LICENCES
13.1 General
So far as the Vendor is aware, each Group Company has all necessary
licences (including statutory licences), permits, consents and
authorities (public and private) for the proper carrying on of the
Business (including for the sale of products into the countries in
which they are sold) and in the manner in which the Business is now
carried on and, so far as the Vendor is aware, all such licences,
permits, consents and authorities are valid and subsisting and the
Vendor knows of no reason why any of them should be suspended,
cancelled or revoked whether in connection with the sale to the
Purchaser or otherwise and so far as the Vendor is aware there are no
factors that might in any way prejudice the continuance or renewal of
any of those licences, permits, consents or authorities and no Group
Company is restricted by contract from carrying on any activity in
any part of the world.
13.2 Financial Services Act
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No Group Company carries on, or purports to carry on, nor have any of
them at any time since 28th April, 1988 carried on, or purported to
carry on, investment business in the United Kingdom within the
meaning of section 3, Financial Services ▇▇▇ ▇▇▇▇ nor has it
contravened any provision of such Act.
13.3 Data Protection ▇▇▇ ▇▇▇▇
Each Group Company has registered or applied to register all
registrable personal data held by it and all due and requisite fees
in respect of the registrations under the Data Protection Act 1984
have been paid. The details contained in such registrations or
applications to register are correct, proper and suitable for the
purpose(s) for which the relevant Group Company holds or uses the
personal data which are the subject of such registrations or
applications to register, and the contents of all such registrations
or applications to register have been made available to the
Purchaser. All personal data held by each Group Company has been held
in accordance with the data protection principles and there has been
no unauthorised disclosure of personal data held by any Group
Company. There are no outstanding enforcement, deregistration or
transfer prohibition notices or any other nature of notice under the
Data Protection ▇▇▇ ▇▇▇▇ currently outstanding against any Group
Company, nor is there any outstanding appeal against such notices nor
is any Group Company aware of any circumstances which may give rise
to the giving of any such notices to any Group Company. There are no
unsatisfied requests to any Group Company made by data subjects in
respect of personal data held by any Group Company, nor any
outstanding applications for rectification or erasure of personal
data. There are no outstanding claims for compensation for
inaccuracy, loss or unauthorised disclosure of personal data nor is
any personal data held by any Group Company inaccurate nor has any
Group Company lost or made any unauthorised disclosure of any such
data. Without prejudice to the specific provisions above, each Group
Company and its employees have complied in all respects with the
requirements of the Data Protection ▇▇▇ ▇▇▇▇. The Company has/has not
registered or applied for a registration as a computer bureau.
14. TRADING
14.1 Tenders, etc
No offer, tender or the like is outstanding (the value of which to
any Group Company could exceed 'L'50,000 in any year) which is
capable of being converted into an obligation of any Group Company by
an acceptance or other act of some other person.
14.2 Delegation of powers
There are in force no powers of attorney given by any Group Company
other than to the holder of an encumbrance solely to facilitate its
enforcement nor any other authority (express, implied or ostensible)
given by any Group Company to any person to enter into any contract
or commitment or do anything on its behalf other than any authority
of employees to enter into routine trading contracts in the normal
course of their duties.
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14.3 Consequence of acquisition of Shares by Purchaser
The acquisition of the Shares by the Purchaser or compliance with the
terms of this Agreement will not:-
14.3.1 so far as the Vendor is aware, cause any Group Company to lose
the benefit of any right or privilege it presently enjoys or
cause any person who normally does business with the Group not
to continue to do so on the same basis as previously;
14.3.2 so far as the Vendor is aware, relieve any person of any
obligation to any Group Company (whether contractual or
otherwise) or legally entitle any person to determine any such
obligation or any right or benefit enjoyed by any Group Company
or to exercise any right whether under an agreement with or
otherwise in respect of any Group Company;
14.3.3 conflict with or result in the breach of or constitute a
default under any of the terms, conditions or provisions of any
material agreement or instrument to which any Group Company is
now a party or any loan to or mortgage created by any Group
Company or of its memorandum or articles of association;
14.3.4 result in any present or future indebtedness of any Group
Company becoming due and payable or capable of being declared
due and payable prior to its stated maturity;
14.3.5 so far as the Vendor is aware, cause any director, officer or
senior employee of any Group Company to leave employment;
14.3.6 so far as the Vendor is aware, conflict with, violate or
result in a breach of any law, regulation, order, decree or
writ applicable to any Group Company, or entitle any person to
receive from any Group Company any finder's fee, brokerage or
other commission; or
14.3.7 cause the payment of or give rise to any liability to pay any
commission, royalty, success fee, procurement fee or any
similar remuneration by any Group Company to any director,
employee or shareholder of any Group Company or to any
Connected Person;
and so far as the Vendor is aware (without having made any enquiry of
them) the attitude or actions of clients, customers and suppliers
with regard to each Group Company will not be prejudicially affected
thereby.
14.4 Guarantees and warranties
No Group Company has given any guarantee or warranty or made any
representation in respect of articles or trading stock, sold or
contracted to be sold by it, save for any warranty or guarantee
implied by law and (save as aforesaid) has not accepted any liability
or obligation to service, maintain, repair, take back or otherwise do
or not do anything in respect of any articles or stock that would
apply after any such article or stock has been delivered by it.
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14.5 Fair trading, etc.
So far as the Vendor is aware, no Group Company is or has been party
to or directly or indirectly concerned in any agreement, arrangement,
understanding or practice (whether or not legally binding) or in the
pursuit of any course of conduct which is:-
14.5.1 registrable under the RTPA or capable of giving rise to an
investigation by the Director-General of Fair Trading or a
reference to the Monopolies and Mergers Commission;
14.5.2 in contravention or breach of The Treaty of Rome 1957, the
Fair Trading ▇▇▇ ▇▇▇▇, the Consumer Credit ▇▇▇ ▇▇▇▇, the Resale
Prices ▇▇▇ ▇▇▇▇, the Trade Descriptions Acts 1968, the RTPA,
the Competition ▇▇▇ ▇▇▇▇, the Consumer Protection ▇▇▇ ▇▇▇▇, or
any regulations, orders, notices or directions made thereunder;
or
14.5.3 is otherwise registrable, unenforceable or void or renders the
relevant Group Company or any of its officers liable to
administrative, civil or criminal proceedings under any
anti-trust, trade regulation or similar legislation in any
jurisdiction where the relevant Group Company carries on
business.
14.6 Restrictions on trading
No Group Company is or has been a party to any agreement,
arrangement, understanding or practice restricting the freedom of the
relevant Group Company to provide and take goods and services by such
means and from and to such persons and into or from such place as it
may from time to time think fit.
14.7 Possession of records
14.7.1 All title deeds and agreements to which each Group Company is
a party and all other documents owned by, or which ought to be
in the possession of, or held unconditionally to the order, of
each Group Company are in the possession of the relevant Group
Company.
14.7.2 No Group Company has any of its records, systems, controls,
data or information recorded, stored, maintained, operated or
otherwise wholly or partly dependent on or held by any means
(including any electronic, mechanical or photographic process
whether computerised or not) which (including all means of
access thereto and therefrom) are not under the exclusive
ownership and direct control of the relevant Group Company.
14.8 Business names
No Group Company uses on its letterhead, books or vehicles or
otherwise carry on the Business under any name other than its
corporate name.
14.9 Unlawful acts
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No Group Company nor, so far as the Vendor is aware, any of their
officers have been prosecuted for any criminal, illegal or unlawful
act connected with the relevant Group Company.
14.10 Sensitive payments
So far as the Vendor is aware, no officer or employee of any Group
Company has made or received any Sensitive Payment in connection with
any contract or otherwise. For the purposes of this clause the
expression "Sensitive Payments" (whether or not illegal) shall
include (i) commercial bribes, bribes or kickbacks paid to any
person, firm or company including central or local government
officials or employees or (ii) amounts received with an understanding
that rebates or refunds will be made in contravention of the laws of
any jurisdiction either directly or through a third party or (iii)
political contributions or (iv) payments or commitments (whether made
in the form of commissions, payments or fees for goods received or
otherwise) made with the understanding or under circumstances that
would indicate that all or part thereof is to be paid by the
recipient to central or local government officials or as a commercial
bribe influence payment or kickback.
15. CONTRACTS
15.1 Onerous contracts
There are no long term contracts (i.e. contracts not terminable by
the relevant Group Company without penalty on six months' notice or
less) or onerous or unusual or abnormal contracts (i.e. contracts for
capital commitments or contracts outside the ordinary course of
business) binding upon any Group Company.
15.2 Material contracts
Lists of all contracts to which each Group Company is a party with a
value in excess of 'L'100,000 are set out in EXHIBIT F and no Group
Company is a party to or subject to any agreement, transaction,
obligation, commitment, understanding, arrangement or liability
which:-
15.2.1 so far as the Vendor is aware, is incapable of complete
performance in accordance with its terms within six months
after the date on which it was entered into or undertaken;
15.2.2 is known by the Vendor or by the relevant Group Company to be
likely to result in a loss to the relevant Group Company on
completion of performance;
15.2.3 so far as the Vendor is aware, cannot readily be fulfilled or
performed by the relevant Group Company on time and without
undue or unusual expenditure of money and effort;
15.2.4 requires an aggregate consideration payable by the relevant
Group Company in excess of 'L'25,000;
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15.2.5 involves or is likely to involve the supply of goods by or to
the relevant Group Company the aggregate sales value of which
will represent in excess of five per cent of the turnover of
the relevant Group Company for the year ended on the Balance
Sheet Date;
15.2.6 so far as the Vendor is aware, requires the relevant Group
Company to pay any commission, finder's fee, royalty or the
like;
15.2.7 is in any way otherwise than in the ordinary and proper course
of the relevant Group Company's business.
15.3 Performance of contracts
15.3.1 The terms of all material contracts of each Group Company have
been complied with by each Group Company and so far as the
Vendor is aware by the other parties to the contracts in all
material respects and, so far as the Vendor is aware, there are
no circumstances likely to give rise to a default by any Group
Company or by the other parties under any such contract.
15.3.2 There are no outstanding claims, separately or in the
aggregate, of material amounts, against any Group Company on
the part of customers or other parties in respect of defects in
quality or delays in delivery or completion of contracts or
deficiencies of design or performance or otherwise relating to
liability for goods or services sold or supplied by any Group
Company and, so far as the Vendor is aware, no such claims are
threatened or anticipated and, so far as the Vendor is aware,
there is no matter or fact in existence in relation to goods or
services currently sold or supplied by any Group Company which
might give rise to the same.
15.3.4 No Group Company has any knowledge of the invalidity of or
grounds for rescission, avoidance or repudiation of any
agreement or other transaction to which the relevant Group
Company is a party and has received no notice of any intention
to terminate, repudiate or disclaim any such agreement or other
transaction.
15.4 Agreements as to pricing
15.4.1 All agreements or arrangements between any Group Company and
any customer as regards the pricing of products sold by a Group
Company are set out in writing and there have been no
variations or changes to such agreements or arrangements other
than as evidenced in writing.
15.4.2 There are no agreements or arrangements pursuant to which any
Group Company has agreed to provide finished contact lenses to
a customer at a price payable by the customer to the Group
Company of less than 'L'1.15 per lens.
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15.5 Agency and distribution agreements
No Group Company is a party to any subsisting agency or
distributorship agreement.
16. EMPLOYEES
16.1 Particulars of employees
The particulars shown in the schedule of employees comprised in
EXHIBIT G are true and complete and show in respect of each Director,
officer and employee of each Group Company his date of birth, the
date on which he commenced continuous employment with the relevant
Group Company for the purposes of the EPCA and all remuneration
payable and other benefits provided or which the relevant Group
Company is bound to provide (whether now or in the future) to each
such person and include full particulars of all remuneration
arrangements (particularly profit sharing, incentive and bonus
arrangements to which the relevant Group Company is a party whether
binding or not) and each Director, officer and employee of each Group
Company is listed therein.
16.2 Service contracts
There is no contract of service in force between any Group Company
and any of its Directors, officers or employees which is not
terminable by the relevant Group Company without compensation (other
than any compensation payable pursuant to statute) on three month's
notice given at any time. There are no consultancy or management
services agreements in existence between any Group Company and any
other person, firm or company, and no Trade Union is recognised by
any Group Company.
16.3 Benefits
There are no amounts owing by any Group Company to any of its present
or former directors, officers or employees other than not more than
one month's arrears of remuneration accrued or due or for
reimbursement of business expenses incurred within a period of three
months preceding the date hereof.
16.4 Liabilities and payments
Save to the extent (if any) to which provision or allowance has been
made in the Accounts:-
16.4.1 no liability has been incurred or is anticipated by any Group
Company for breach of any contract of employment or for
services or for severance payments or for redundancy payments
or protective awards or for compensation for unfair dismissal
or for failure to comply with any order for the reinstatement
or re-engagement of any employee or for sex or race
discrimination or for any other liability accruing from the
termination or variation of any contract of employment or for
services;
16.4.2 no gratuitous payment has been made or promised by any Group
Company in connection with the actual or proposed termination,
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suspension or variation of any contract of employment or for
services of any present or former director, officer or any
dependent of any present or former director, officer or
employee of any Group Company; and
16.4.3 no Group Company has made or agreed to make any payment to or
provided or agreed to provide any benefit for any present or
former director, officer or employee of the relevant Group
Company or any of their dependants.
16.5 Relevant legislation
So far as the Vendor is aware, each Group Company has in relation to
each of its employees (and so far as relevant to each of its former
employees) complied in all material respects with all obligations
imposed on it by all relevant statutes, regulations and all relevant
orders and awards made thereunder and has maintained adequate records
regarding the service, terms and conditions of employment of each of
its employees.
16.6 Termination of employment
No present director, officer or employee of any Group Company has
given or received notice terminating his employment except as
expressly contemplated under this Agreement and Completion of this
Agreement will not entitle any employee to terminate his employment
and/or trigger any entitlement to a severance payment or liquidated
damages.
16.7 Share and other schemes
No Group Company has in existence nor has it promised to introduce
any employee share trust, share incentive scheme, share option scheme
or profit sharing scheme, other than the Scheme, for the benefit of
all or any of its present or former directors, officers or employees
or any of such persons dependants or any scheme whereunder any
present or former director, officer or employee of any Group Company
is entitled to a commission or remuneration of any other sort
calculated by reference to the whole or part of the turnover, profits
or sales of any Group Company or any other person, firm or company
including (without limitation) any profit related pay scheme
established under Chapter III, Part V, Taxes Act.
16.8 Disputes and claims
16.8.1 No dispute exists between any Group Company and a material
number of its employees.
16.8.2 No Group Company has had during the last three year any
strike, work stoppages or work-to-rule by its employees or
lock-out, nor, so far as the Vendor is aware, is any
anticipated, which has caused, or is likely to cause, any Group
Company to be materially incapable of carrying on its business
in the normal and ordinary course.
16.9 Transfer of undertakings
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No Group Company has within the period of 1 year immediately
preceding the date hereof been a party to relevant transfer as
defined in TUPE.
17. PENSION SCHEMES
17.1 Personal pension schemes
There are set out in EXHIBIT H a list of members of the Aspect Vision
Care Limited group personal pension scheme together with the rate of
employer contribution payable in respect of each member, a note of
the eligibility criteria for membership and a sample copy invitation
to employees to join. Other than as set out in EXHIBIT H, no Group
Company has any obligation to contribute to any personal pension
scheme (as defined in section 630 of the Taxes Act). All employer
contributions have been paid by their due date and there are no
contributions payable but outstanding.
17.2 Other pension schemes
Other than as referred to in WARRANTY 17.1, the Aspect Pension Scheme
No. 2 and the Averlan Pension Fund (the "Pension Schemes") (full
particulars of which are contained in EXHIBIT I), no Group Company is
or has been a party to any agreement or arrangement for the provision
of pensions, allowances, lump sums or other like benefits on
retirement, death or long-term ill health for the benefit of any
current or former employee (or the dependants of such persons) nor
has any Group Company provided or promised to provide any ex-gratia
pensions, lump sums or like benefits for any current or former
employee or their dependants. In respect of any employee who is
covered for lump sum death benefits under any disclosed life
assurance arrangement, that benefit is fully insured with an
insurance company of good repute on normal terms and all premiums
payable have been paid.
17.3 Statutory compliance
So far as the Vendor is aware, the Pension Schemes have at all times
and in all respects complied with the provisions of all relevant UK
statutes, regulations and requirements, all benefits under the Scheme
are provided on a money purchase basis and there is no obligation
upon any Group Company to make any further payments to the Pension
Schemes other than as disclosed.
17.4 Proceedings
So far as the Vendors is aware, there are no claims or actions in
progress or pending, nor any reason for such claims or actions, in
respect of any pension arrangement.
18. INTELLECTUAL PROPERTY
18.1 Ownership and rights
18.1.1 EXHIBIT J lists all Registered Intellectual Property.
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18.1.2 Each Group Company is the sole beneficial owner of such
Intellectual Property as is attributed to it in EXHIBIT J save
where it is expressed in EXHIBIT J that such is not the case.
18.1.3 Each Group Company owns all such Intellectual Property as is
necessary for the development, manufacture, marketing and sale
of its products or services or in relation to any of the
processes employed in the Business at the date of this
Agreement.
18.1.4 None of the Intellectual Property owned, used or exploited by
any Group Company has been charged, mortgaged, licensed or
otherwise encumbered.
18.2 Enforcement
18.2.1 The Intellectual Property owned, used or otherwise exploited
by each Group Company is valid and subsisting and, so far as
the Vendor is aware, none of the Registered Intellectual
Property is the subject of outstanding or threatened disputes,
claims or proceedings for cancellation, revocation, opposition,
interference, rectification or contested ownership.
18.2.2 Registered Intellectual Property has been maintained and all
renewal fees have been paid on time.
18.2.3 The Know-How owned, used or exploited by each Group Company
has been kept secret and confidential and has not been
disclosed to third parties except in the ordinary course of
business.
18.2.4 No Group Company has taken any action likely to diminish the
reputation of unregistered Trade Marks, owned, used or
otherwise exploited by any Group Company.
18.3 Intellectual Property Agreements
18.3.1 EXHIBIT K lists all Intellectual Property Agreements.
18.3.2 So far as the Vendor is aware, all Intellectual Property
Agreements are valid and binding and none has been the subject
of any breach or default by any party or of any event which
with notice or lapse of time or both would constitute a
default.
18.3.3 So far as the Vendor is aware, there are no disputes, claims
or proceedings arising out of or relating to the Intellectual
Property Agreements.
18.3.4 No Group Company has authorised or otherwise permitted,
expressly or by implication, any use whatsoever of the
Intellectual Property nor granted to any third party any right
or interest in respect of the Intellectual Property other than
under the Intellectual Property Agreements.
18.3.5 All Intellectual Property Agreements have been duly recorded
or registered with the proper authorities whenever a
requirement to do so exists.
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18.4 Infringement
18.4.1 No Group Company has infringed and nor do any infringe any
Intellectual Property of a third party as a result of any Group
Company's use or exploitation of the Intellectual Property
owned, used or exploited by any Group Company nor, so far as
the Vendor is aware, will such use or exploitation give rise to
any such dispute claims or proceedings against any Group
Company.
18.4.2 There are not and have not been any disputes, claims or
proceedings threatened or in existence in any court or tribunal
in respect of any of the Intellectual Property as such owned,
used or exploited by any Group Company or in respect of any use
or exploitation of the Intellectual Property owned, used or
exploited by any Group Company.
18.4.3 So far as the Vendor is aware, there has been and is no current
infringement by any third party of any of the Intellectual
Property owned, used or exploited by any Group Company.
18.5 Trade Marks
All registered Trade Marks owned by any Group Company have been, and
are being, used by the relevant Group Company in the course of its
business in relation to the goods or services in respect of which
they are registered and no Group Company has any reason to believe
that any such Trade ▇▇▇▇ ▇▇▇ be struck off the register of trade
marks as a result of non-use.
19. LEGISLATION
So far as the Vendor is aware, no Group Company is in breach of or
has received notice of or is aware of any allegation of breach of the
requirements of any legislation which is applicable to it.
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PART 2
20. TAXATION
20.1 General
20.1.1 Notices and returns
All notices, returns, computations and registrations of each
Group Company for the purposes of Taxation have been made
punctually on a proper basis and are correct and none of them
is, or, so far as the Vendor is aware, is likely to be, the
subject of any dispute with any Taxation Authority.
20.1.2 Payment of Tax due
All Taxation which each Group Company is liable to pay prior to
Completion has been or will be so paid prior to Completion.
20.1.3 Penalties or interest on Tax
No Group Company has within the period of six years ending on
the date of this Agreement paid or since the Balance Sheet Date
become liable to pay any material penalty, fine or surcharge
charged by virtue of the provisions of the TMA or any other
Taxation Statute.
20.1.4 Compliance with PAYE, national insurance contribution and Tax
collection obligations
(a) All income tax deductible and payable under the PAYE
system and/or any other Taxation Statute has, so far as
is required to be deducted, been deducted from all
payments made by each Group Company and all amounts due
to be paid to the Inland Revenue prior to the date of
this Agreement have been so paid, including all Tax
chargeable on benefits provided for directors, employees
or former employees of each Group Company or any persons
required to be treated as such.
(b) All deductions and payments required to be made under
any Taxation Statute in respect of national insurance
and social security contributions (including employer's
contributions) have been so made.
(c) All payments by each Group Company to any person which
ought to have been made under deduction of Tax have been
so made and each Group Company (if required by law to do
so) has accounted to the Inland Revenue for the Tax so
deducted.
(d) Proper records have been maintained in respect of all
such deductions and payments and all applicable
regulations have been complied with.
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(e) The Disclosure Documents contain details so far as they
affect each Group Company of all current dispensations
agreed with the Inland Revenue in relation to PAYE and
all notifications given by the Inland Revenue under
section 166, TA 88.
20.1.5 Investigations
No Group Company has in the period of four years ending on the
date of this Agreement been subject to any visit, audit,
investigation, discovery or access order by any Taxation
Authority and, so far as the Vendor is aware, there are no
circumstances existing which make it likely that a discovery or
access order will be made.
20.1.6 No liability under section 23, TA 88
No Group Company has received a notice from the Collector of
Taxes under the provisions of section 23, TA 88 which has not
been complied with.
20.1.7 Tax provision
Proper provision or reserve has been made in the Accounts for
all Taxation assessed or liable to be assessed on each Group
Company or for which it is accountable in respect of income,
profits or gains earned, accrued or received or deemed to be
earned, accrued or received on or before the Balance Sheet
Date, including distributions made down to such date or
provided for in the Accounts.
20.1.8 Concessions and arrangements
The amount of Taxation chargeable on each Group Company during
any accounting period ending on or within the six years before
the Balance Sheet Date has not depended on any concessions,
agreements or other formal or informal arrangements with any
Taxation Authority.
20.1.9 Anti avoidance provisions
No Group Company has entered into or been a party to any scheme
or arrangement of which the sole purpose was the avoidance of
or the reduction in liability to Taxation.
20.1.10 Section 765, TA 88
No Group Company has without the prior consent of the Treasury
carried out or agreed to carry out any transaction under
section 765, TA 88 which would be unlawful in the absence of
such consent and has, where relevant, complied with the
requirements of section 765A(2), TA 88 (supply of information
on movement of capital within the EU) and any regulations made
or notice given thereunder.
20.1.11 Transactions requiring clearance or consent
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All particulars furnished to any Taxation Authority in
connection with an application for clearance or consent under
any statutory provision by any Group Company or on its behalf
or affecting any Group Company has been made and obtained on
the basis of full and accurate disclosure to the relevant
Taxation Authority of all relevant material facts and
considerations; and any transaction for which clearance or
consent was obtained, has been carried into effect only in
accordance with the terms of the relevant clearance or consent.
20.1.12 Calculation of tax liability
Each Group Company has sufficient records relating to past
events to permit accurate calculation of the Taxation liability
or relief which would arise upon a disposal or realisation on
completion of each asset owned by each Group Company at the
Balance Sheet Date or acquired by each Group Company since that
date but before Completion.
20.1.13 Claims and disclaimers
All Group Companies have duly submitted all claims and
disclaimers the making of which have been assumed for the
purposes of the Accounts.
20.1.14 Outstanding claims, elections and appeals
The Disclosure Documents contain full particulars of all
matters relating to Taxation in respect of which the Company is
or at Completion will be entitled:
(a) to appeal against any assessment or determination
relating to Taxation;
(b) to apply for a postponement of Taxation.
20.1.15 Business Rates
All Business Rates which each Group Company is liable to pay
prior to Completion have been or will be so paid prior to
Completion.
20.2 Corporation tax, including corporation tax on chargeable gains
20.2.1 Base values and acquisition costs
If each of the capital assets of each Group Company was
disposed of on the date hereof for a consideration equal to the
book value of that asset in, or adopted for the purposes of,
the Accounts or, in the case of assets acquired since the
Balance Sheet Date, equal to the consideration given upon its
acquisition, no liability to corporation tax on chargeable
gains or balancing charges under the CAA would arise and for
the purpose of determining the liability to corporation tax on
chargeable gains there shall be disregarded any relief and
allowances available to any Group Company other than amounts
falling to be deducted under section 38, TCGA.
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20.2.2 Capital allowances
All expenditure which any Group Company has incurred or may
incur under any subsisting commitment on the provision of
machinery or plant or buildings has qualified or will qualify
(if not deductible as a trading expense for trade carried on by
a Group Company) for writing-down allowances or industrial
building allowances (as the case may be) under the CAA and
where appropriate notices have been given to the Inland Revenue
under section 118, Finance ▇▇▇ ▇▇▇▇.
20.2.3 Leased assets
No Group Company has made any claim for capital allowances in
respect of any asset which is leased to or from or hired to or
from any such Group Company and no election affecting a Group
Company has been made or agreed to be under sections 53 or 55,
CAA in respect of such assets.
20.2.4 Short life assets
No Group Company has made any election under section 37, CAA
nor is any Group Company taken to have made such an election
under section 37(8)(c), CAA.
20.2.5 Industrial buildings
None of the assets of any Group Company expenditure on which
has qualified for a capital allowance under Part I, CAA has at
any time whilst it has been in the ownership of any Group
Company been used otherwise than as an industrial building or
structure.
20.2.6 Distributions
(a) No distribution within the meaning of sections 209, 210
and 211, TA 88 has been made by any Group Company after
5 April 1965 except dividends shown in its audited
accounts and no Group Company is bound to make any such
distribution.
(b) No elections have been made pursuant to Section 246A, TA
88 in respect of any dividends.
20.2.7 Repayments of share capital
No Group Company has at any time after 6 April 1965 repaid,
redeemed or repurchased or agreed to repay, redeem or
repurchase or granted an option under which it may become
liable to purchase any shares of any class of its issued share
capital nor has any Group Company after that date capitalised
or agreed to capitalise in the form of shares or debentures any
profits or reserves of any class or description or otherwise
issued or agreed to issue any share capital other than for the
receipt of new consideration (within the meaning of Part VI, TA
88) or passed or agreed to pass any resolution to do so.
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20.2.8 Demergers
No Group Company has been engaged in or been a party to any of
the transactions set out in sections 213 to 218 inclusive, TA
88 nor has it made or received a chargeable payment as defined
in section 218(1), TA 88.
20.2.9 Issues of securities
No securities (within the meaning of section 254(1), TA 88)
issued by any Group Company and remaining in issue at the date
of this Agreement were issued in such circumstances that the
interest payable on than falls to be treated as a distribution
under either sections 209(2)(d), 209(2)(da) or 209(2)(e), TA
88.
20.2.10 Land sold and leased back
No Group Company has entered into any transaction to which the
provisions of section 779 or 780, TA 88 have been or is
reasonably likely to be applied.
20.2.11 Foreign loan interest
No Group Company has, within the six years prior to the date of
Completion received any foreign loan interest in respect of
which double taxation relief will or may be restricted under
section 798, TA 88.
20.2.12 Non-deductible payments
No rents, interest, annual payments or other sums of an income
nature paid or payable by any Group or which any Group Company
is under an existing obligation to pay in the future are or may
be wholly or partially disallowable as deductions, management
expenses or charges in computing profits for the purposes of
corporation tax by reason of the provisions of sections 74, 79,
125, 338, 339, 779 to 784 inclusive, 787 or 788, TA 88.
20.2.13 Rent payable to connected persons
No rent is or has been payable by any Group Company to which
the provisions of sections 33A and 33B, TA 88 have applied.
20.2.14 No unremittable income or gains
No claim has been made by any Group Company under sections 584
or 585, TA 88 or under section 279, TCGA.
20.2.15 Payments to directors, officers or employees
So far as the Vendor is aware, no Group Company has made or
agreed to make any payment to or provided or agreed to provide
any benefit for any Director or former director, officer or
employee of a Group Company, whether as compensation for loss
of office, termination of employment or
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otherwise, which is not allowable as a deduction in calculating
the profits of a Group Company for Taxation purposes whether up
to or after the Balance Sheet Date.
20.2.16 Transfer pricing
No Group Company is a party to any transaction or arrangement
under which it has paid or, so far as the Vendor is aware, will
be obliged to pay in the future for any asset or any services
or facilities of any kind an amount which is in excess of the
market value of that asset or those services or facilities nor
has any Group Company received nor, so far as the Vendor is
aware, will it in the future receive any payment for an asset
or any services or facilities of any kind that it has supplied
or provided or is liable to supply or provide which is less
than the market value of that asset or those services or
facilities.
20.2.17 Transactions not at arm's length
No Group Company has disposed of or acquired any asset in
circumstances falling within section 17, TCGA nor given any
consideration to which section 128(1)(2), TCGA applies.
20.2.18 Chargeable debts
No Group Company is owed a debt, other than a debt on a
security, on the disposal or satisfaction of which a liability
to corporation tax on chargeable gains will arise by reason of
section 251, TCGA.
20.2.19 Relief for loans to traders and qualifying corporate bonds
No claim for relief has been allowed to any Group Company
pursuant to sections 253 and 254, TCGA in respect of any loan
and no chargeable gain has arisen pursuant to section 253 (5),
(6), (7) or (8) or section 254 (9) or (10), TCGA.
20.2.20 Chargeable policies
No Group Company has acquired benefits under any policy of
assurance otherwise than as the original holder of legal and
beneficial title.
20.2.21 Transfer of overseas trade
No Group Company has transferred a trade carried on by it
outside the United Kingdom through a branch or agency to a
company not resident in the United Kingdom in such
circumstances that a chargeable gain has arisen under section
140, TCGA.
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20.2.22 Restriction of straightline growth
No asset owned by any Group Company is subject to a deemed
disposal and re-acquisition under schedule 2, TCGA so as to
restrict the extent to which the gain or loss over the period
of ownership may be apportioned by reference to straightline
growth.
20.2.23 Other claims made by Group Companies
No Group Company has made a claim under any of the following:-
(a) section 280, TCGA (tax on chargeable gains payable by
instalments);
(b) section 24(2), TCGA (assets of negligible value); or
(c) section 242(2), TCGA (small part disposals of land).
(d) section 139, Finance ▇▇▇ ▇▇▇▇ (deferral of unrealised
exchange gains).
20.2.24 Gifts
No Group Company has received any assets by way of gift as
mentioned in section 282, TCGA and no Group Company holds
shares in a company to which section 125, TCGA could apply.
20.2.25 Non-resident companies
(a) There has not accrued or arisen any income, profit or
gain in respect of which any Group Company is liable to
corporation tax by virtue of the provisions of section
13, TCGA or Chapter IV of Part XVII, TA 88.
(b) No Group Company has been served with a notice in
respect of the unpaid corporation tax liability of any
company pursuant to section 191, TCGA.
20.2.26 Controlled foreign companies
No notice of the making of a direction under section 747, TA 88
has been received by any Group Company and, so far as the
Vendor is aware, no circumstances exist which would entitle the
Inland Revenue to make such a direction or to apportion any
profits of a controlled foreign company to any Group Company
pursuant to section 752, TA 88 .
20.2.27 Charges on non-residents
No Group Company has been a party to any transaction or
arrangement whereby it is liable for Taxation under or by
virtue of Part VIII, TMA.
20.2.28 Profit related pay
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No scheme registered under Chapter III of Part V, TA 88 applies
to any Group Company or any of its employees and no application
for registration of a scheme so applying has been made.
20.2.29 Payment from pension funds
No Group Company has received a payment out of funds held for
the purposes of an exempt approved scheme in respect of which
an amount is recoverable by the Inland Revenue under section
601, TA 88.
20.2.30 Claims and elections
(a) The Disclosure Documents contain full particulars of all
claims and elections made (or assumed to be made) under
sections 23, 152-162 or ▇▇▇, ▇▇▇, ▇▇▇, ▇▇▇, ▇▇▇▇ insofar
as they could affect the chargeable gain or allowable
loss which would arise in the event of a disposal by any
Group Company of any of its assets, and indicates which
assets (if any) so affected would not on a disposal give
rise to relief under Schedule 4, TCGA.
(b) The Disclosure Documents contain full particulars of
elections made under
(i) Regulation 10 of The Exchange Gains and Losses
(Alternative Method of Calculating of Gain or
Loss) Regulations 1994 and whether or not such
elections have been varied
(ii) Regulation 10 of the Local Currency Elections
Regulations 1994 and such election is still valid.
20.3 Corporation tax - groups of companies
20.3.1 Group relief
The Disclosure Documents contain full particulars of all
arrangements and agreements relating to group relief (as
defined by section 402, TA 88 ) within the last six years to
which any Group Company is or has been a party and:-
(a) all claims by a Group Company for group relief were when
made and are now valid and have been or will be allowed
by way of relief from corporation tax;
(b) no Group Company has made nor is liable to make any
payment under any such arrangement or agreement save in
consideration for the surrender of group relief; and
(c) there are no outstanding payments due to any Group
Company under any arrangement or agreement for any
surrender of group
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relief made by it and the payments are not liable to
be refunded in whole or in part.
20.3.2 Surrender of advance corporation tax
The Disclosure Documents contain full particulars of all
arrangements and agreements made within the six years prior to
the date of Completion to which any Group Company is or has
been a party relating to the surrender of advance corporation
tax made or received by any Group Company under section 240, TA
88 and:-
(a) no Group Company has paid nor is liable to pay for the
benefit of any advance corporation tax which has become
incapable of set-off against any Group Company's
liability to corporation tax; and
(b) there are no outstanding payments due to any Group
Company under any arrangement or agreement for any
surrender of advance corporation tax made by it and the
payments are not liable to be refunded in whole or in
part.
20.3.3 Acquisitions from group members
No tax has been or is reasonably likely to be assessed on any
Group Company pursuant to section 190, TCGA in respect of any
chargeable gain accrued prior to the date of this Agreement and
no Group Company has at any time within the period of six years
ending with the date of this Agreement transferred any asset
other than trading stock including without limitation any
transfer by way of share exchange within section 135, TCGA to
any company which at the time of disposal was a member of the
same group as defined in section 170, TCGA.
20.3.4 Leaving the group
The execution or completion of this Agreement or any other
event since the Balance Sheet Date will not result in any
chargeable asset being deemed to have been disposed of and
re-acquired by any Group Company for Taxation purposes pursuant
to section 178 or 179, TCGA or as a result of any other Event
since the Balance Sheet Date.
20.3.5 Group income
The Disclosure Documents contain full particulars of all
current elections made by each Group Company under section 247,
TA 88 and all such elections are now in force and no Group
Company has in the six years prior to the date of Completion
paid any dividend without advance corporation tax or made any
payment without deduction of income tax in the circumstances
specified in section 247(6), TA 88 and no assessment has been
made on any Group Company in respect of advance corporation tax
which ought to have been paid or income tax which ought to have
been deducted.
20.4 Close companies
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20.4.1 Close company status
Each Group Company has at all times, in the six years prior to
the date of Completion been a close company within the meaning
of sections 414 and 415, TA 88.
20.4.2 Close investment-holding company status
No Group Company has, in the six years prior to the date of
Completion been a close investment-holding company as defined
in section 13A, TA 88.
20.4.3 Distributions
No distribution within section 418, TA 88 has ever been made by
any Group Company.
20.4.4 Loans to participators
Any loans or advances made or agreed to be made by any Group
Company within sections 419 and 420 or 422, TA 88 have been
disclosed and no Group Company has released or written off or
agreed to release or write off the whole or any part of any
such loans or advances.
20.5 Inheritance tax
20.5.1 No transfers of value and associated operations
No Group Company has, in the six years prior to the date of
Completion made any transfers of value within sections 94 and
202, ITA nor has any Group Company received a transfer of value
such that liability has arisen under section 199, ITA nor has
any Group Company knowingly been party to associated operations
in relation to a transfer of value as defined by section 268,
ITA.
20.5.2 Inland Revenue charge
There is no unsatisfied liability to inheritance tax attached
to or attributable to the Shares or any asset of any Group
Company and none of them are subject to an Inland Revenue
charge as mentioned in section 237 and 238, ITA.
20.5.3 Power of sale, mortgage or charge
So far as the Vendor is aware, no asset owned by any Group
Company nor the Shares are liable to be subject to any sale,
mortgage or charge by virtue of section 212, ITA.
20.6 VAT
20.6.1 Returns and payments
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(a) Each Group Company is a taxable person duly registered
for the purposes of VAT.
(b) Each Group Company has complied with all statutory
provisions, rules, regulations, orders and directions in
respect of VAT, has promptly submitted accurate returns,
and each Group Company maintains full and accurate VAT
records, has never been subject to any interest,
forfeiture, surcharge or penalty nor been given any
notice under sections 59 or 64, VATA nor been given a
warning within section 76(2), VATA nor has any Group
Company been required to give security under paragraph 4
of Schedule 11, VATA.
(c) VAT has been duly paid or provision has been made in the
Accounts for all amounts of VAT for which each Group
Company is liable.
20.6.2 Taxable supplies and input tax credit
No supplies made by any Group Company are exempt supplies and
no Group Company has been denied full credit for all input tax
by reason of the operation of sections 25 and 26, VATA and
regulations made thereunder or for any other reasons and no VAT
paid by any Group Company is not input tax as defined in
section 24, VATA and regulations made thereunder.
20.6.3 VAT groups
No Group Company is or has been for VAT purposes a member of
any group of companies other than the Group and no act or
transaction has been effected in consequence whereof any Group
Company is or may be held liable for any VAT arising from
supplies made by another company.
20.6.4 Transactions between connected persons
No Group Company has been or, so far as the Vendor is aware,
agreed to be party to any transaction or arrangement in
relation to which a direction has been or could be made under
paragraph 1 of Schedule 6, VATA or to which paragraph 2(3A) or
2(3AA) of Schedule 10, VATA applies.
20.6.5 Charge to VAT as agent or representative
No Group Company is or has agreed to become liable for VAT by
virtue of section 47 and 48, VATA.
20.6.6 VAT and Properties
Each Group Company or its relevant associate for the purposes
of paragraph 3(7) of Schedule 10, VATA has exercised the
election to waive exemption from VAT (pursuant to paragraph 2
of schedule 10, VATA) only in respect of those Properties
listed (as having been the subject of such an election) in the
Disclosure Documents and no Group Company nor a
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relevant associate of any Group Company has any obligation to
exercise such an election in respect of any other of the
Properties.
20.6.7 Capital goods scheme
No Group Company owns or has at any time within the period of
ten years preceding the date hereof owned any assets which are
capital items subject to the Capital Goods Scheme under Part XV
of the VAT Regulations 1995.
20.6.9 Self billing
No Group Company has entered into any self billing arrangement
in respect of supplies made by any other person nor has any
Group Company at any time agreed to allow any such person to
make out VAT invoices in respect of supplies made by such Group
Company.
20.7 Stamp duty
20.7.1 Stamp duty
All stampable documents wheresoever executed (other than those
which have ceased to have any legal effect) to which any Group
Company is a party have been duly stamped in respect of Stamp
Duty. Since the Balance Sheet Date no Group Company is or has
been a party to any instrument in respect of which any penalty
in respect of such duty will arise on any Group Company.
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SCHEDULE 6
BASIS FOR PREPARATION OF THE COMPLETION ACCOUNTS
1. General Requirements
Subject to the provisions of PARAGRAPHS 2 to 4 hereof, the Completion
Accounts shall be prepared under the historical cost convention and in
accordance with accounting principles generally accepted in the United
Kingdom (including Accounting Standards) and, subject as aforesaid, on a
basis consistent with the balance sheets and profit and loss account of
each Group Company made up to the Balance Sheet Date. PARAGRAPHS 2 and 3
shall have priority over PARAGRAPH 4.
2. Balance Sheet
2.1 A balance sheet shall be prepared for the Group setting out the value of
the Net Assets.
2.2 For the purpose of preparing the balance sheet and calculating the Net
Assets the following principles shall be applied:-
2.2.1 subject to PARAGRAPH 2.2.2, sums receivable in respect of debtors
shall not be included at sums higher than the amounts collectable,
making appropriate provision for doubtful debts;
2.2.2 debtors shall be given a zero value to the extent that gross
aggregate debtors exceed 88 times the average daily sales in the
period 1 August 1997 to 31 October 1997 (inclusive);
2.2.3 subject to PARAGRAPH 2.2.4, stocks and work-in-progress shall be
valued at the lower of cost and net realisable value;
2.2.4 stocks and work-in-progress shall be given a zero value to the
extent that gross aggregate stocks and work-in-progress exceed 123
times the average daily cost of sales in the period 1 August 1997
to 31 October 1997 (inclusive);
2.2.5 liabilities shall include accruals at the close of business on 31
October 1997;
2.2.6 no value shall be attributable to goodwill or any other intangible
asset;
2.2.7 real and immovable property and other fixed assets shall be
included at their net book value as at the Balance Sheet Date (or
at cost if purchased after the Balance Sheet Date) less
depreciation at rates calculated to write off the cost of the
assets over the following periods:
(a) plant and machinery 3-7 years;
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(b) fixtures and fittings 3-7 years;
(c) motor vehicles 4 years;
(d) short leasehold properties the term of the lease;
consistent with previous accounting policies of the Group;
2.2.8 the amount of licence revenue due to Group Companies from ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇, Inc. in November 1997 shall be added for the purpose of
calculating the Net Assets;
2.2.9 appropriate provision shall be included for employee redundancies
and the costs of relocating the Berkhamsted facility, estimated at
'L'240,000;
2.2.10 the sum of 'L'100,000 shall be added for the purpose of
calculating the Net Assets;
2.2.11 appropriate provision shall be included for the costs of removing
the oil storage tanks, however one storage tank may be left in
place provided that provision is included for the cost of bringing
the oil storage tank up to a standard of best practice in
accordance with relevant guidance issued by the Environment Agency
or its predecessors to ensure, so far as possible, that the tank
is not capable of leaking or discharging into the Environment;
2.2.12 appropriate provision shall be included for the removal of
hydrocarbons from the shallow trench located on the Thermoking
Property;
2.2.13 a provision of 'L'50,000 shall be included in respect of a
termination payment due to ▇▇▇▇▇ ▇▇▇▇▇▇▇;
2.2.14 the payment due from the Group to ▇▇▇▇▇ ▇▇▇▇▇▇▇ on Completion in
the sum of 'L'200,000 shall nOt be included in calculation of the
Net Assets;
2.2.15 a provision of 'L'90,000 shall be included in respect of the
payment due to Hydron;
2.2.16 full provision shall be included in respect of bonuses payable to
managers of the Group, estimated at 'L'30,000; and
2.2.17 adequate provision shall be made for all Taxation, including
deferred taxation.
For the avoidance of doubt it is acknowledged by the parties hereto that
certain of the matters referred to above (and, in particular but without
detracting from the generality of the foregoing the item referred to in
paragraph 2.2.8) will have occurred/will occur subsequently to 31st
October 1997 but, solely for the purposes of the calculation of the Net
Assets, it has been agreed between the parties that they will be taken
into account.
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3. Profit and loss account
Unless already taken into account, the following principles shall be
observed in drawing up the profit and loss account of the Group which is
to form part of the Completion Accounts:-
3.1 there shall be excluded any profits, gains or losses arising from any
disposal of any immovable property or from any revaluation of immovable
property or surpluses or deficits arising on currency transactions,
whether or not such profits, gains, losses, surpluses or deficits are
treated in the said accounts as items of an extraordinary or exceptional
nature;
3.2 depreciation shall be deducted on the basis and by reference to the rates
mentioned in PARAGRAPH 2.2.7 above;
3.3 any Taxation on profits and any subvention or other payment to any other
company in lieu of payment of any such tax or in consideration of a
surrender of group relief by the other company shall be deducted; and
3.4 the profits or losses shall be computed before paying any dividend or
making appropriations of profit or allocations to or from reserves and
before deducting any extraordinary item or making any prior year
adjustment, as defined in SSAP 6.
4. True and fair view
The Completion Accounts shall show a true and fair view of the state of
affairs of the Group at the close of business on 31 October 1997 and of
the profits of the Group for the period beginning on the day immediately
following the Balance Sheet Date and ending on 31 October 1997.
5. Changes in Accounting Standards
Unless otherwise taken into account in accordance with the preceding
provisions of this schedule the Completion Accounts shall be prepared
without regard to any changes in Accounting Standards from those applied
in the preparation of the Accounts.
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SCHEDULE 7
COMPLETION
PART 1 - DELIVERY OF DOCUMENTS BY VENDOR
On Completion, the Vendor shall deliver to the Purchaser:-
1. certificates of non-crystallisation from all persons holding security
over the assets of the Group;
2. the Deed of Tax Covenant duly executed as a deed by the Vendor;
3. the Earn Out Agreement duly executed by the Vendor;
4. the Share Charge duly executed by the Vendor;
5. certificates in respect of all issued shares in the capital of each of
the Subsidiaries; and
6. the written resignations in the agreed terms of all the Directors (except
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇) of each Group Company (other than Aspect Vision
Italia s.r.l. in respect of which the resignation of ▇. ▇▇▇▇▇▇ shall not
be required) from their respective offices such resignations to take
effect from Completion.
PART 2 - ACTIONS BY VENDOR
On Completion:
1. each of the Purchase Agreements shall be executed by the Sellers and
completed in accordance with their terms;
2. a board meeting of each Group Company shall be held at which:
2.1. in the case of the Companies, the transfers of the relevant Shares
shall be passed for registration and registered (subject only to
the same being duly stamped which shall be at the cost of the
Purchaser);
2.2. it shall be resolved to repay any loans made to the relevant Group
Company by a director;
2.3. it shall be resolved, in the case of Aspect Vision Care Limited
and Contact Lens Technologies Limited, to make payments not
exceeding (pound)1,500,000 in aggregate for the two companies, to
the Patent Owners on account of royalties due to the Patent
Owners;
2.4. in the case of Aspect Vision Care Limited, the Service Agreements
shall be approved and entered into;
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2.5. the resignations referred to PARAGRAPHS 7 OF PART 1 shall be
tendered and accepted so as to take effect at the close of the
relevant meetings which they are tabled;
2.6. in the case of:
2.6.1. Aspect Vision Italia s.r.l., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the
Vendor; and
2.6.2. Aspect Vision Care Limited, New Focus Health Care Limited,
Contact Lens Technologies Limited, Focus Solution Limited,
Aspect Speciality Limited, Averlan Company Limited, Aspect
Contact Lens Limited, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇;
shall be appointed as additional directors; and
2.7. the accounting reference date shall be changed to 31 October.
PART 3 - DELIVERY OF DOCUMENTS AND ACTIONS BY THE PURCHASER
Subject as provided in CLAUSE 5.3, on Completion the Purchaser shall:-
1. enter into and complete the Purchase Agreements in accordance with their
terms;
2. deliver to the Vendor a copy of the minutes of a meeting of the directors
of the Purchaser:
2.1 authorising the execution of this Agreement and related documents
(such copy minutes being certified as correct by an officer of the
Purchaser); and
2.2 resolving to create and issue the Purchase Notes;
3. deliver to the Vendor a counterpart Deed of Tax Covenant duly executed as
a deed by the Purchaser; and
4. deliver to the Vendor a counterpart of the Earn Out Agreement duly
executed by the Purchaser.
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PART 4 - DELIVERY OF DOCUMENTS AND ACTIONS BY TCC
Subject as provided in CLAUSE 5.3, on Completion TCC shall:
1. procure that CooperVision, Inc. delivers to the Vendor a counterpart of
the Patent Licence duly executed by TCC;
2. deliver to the Vendor a copy of the minutes of a meeting of the directors
of TCC:
2.1 authorising the execution of this Agreement and related documents
(such copy minutes being certified as correct by an officer of
TCC); and
2.2 authorising the execution of the instrument constituting the
Purchase Notes.
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SCHEDULE 8
LIMITATION OF VENDOR'S LIABILITY
PART 1 - GENERAL LIMITATIONS
1. Notwithstanding the provisions of CLAUSE 7, the Vendor shall not be
liable in respect of a breach of any of the Warranties if and to the
extent that the loss occasioned thereby has been recovered under the
Indemnities or the Deed of Tax Covenant.
2. The Purchaser shall be obliged to take and shall procure that each Group
Company shall take all reasonable steps to mitigate any loss in relation
to circumstances which may give rise or have given rise to action against
the Vendor under the Warranties and the Vendor shall not be liable for
any loss or increased loss arising from any failure by the Purchaser to
take such reasonable steps.
3. The Vendor shall not be liable in respect of any claim:-
3.1 under the Warranties to the extent that the facts which might
result in a claim or possible claim were Disclosed;
3.2 under the Warranties or the Indemnities to the extent that the
subject of the claim is specifically allowed or provided for or
reserved in the Completion Accounts or has been included in
calculating creditors or deducted in calculating debtors in the
Completion Accounts or in the case of creditors or debtors is
specifically referred to in the notes to the Completion Accounts;
3.3 under the Warranties or, subject to the proviso in PARAGRAPH
3.3.4, the Indemnities to the extent that a claim arises or is
increased:-
3.3.1 wholly or partly from an act or omission, being outside of
the ordinary course of the Business, occurring at the
request of or with the written consent of the Purchaser or
(on or after the date hereof) any Group Company or any of
their directors, other officers, employees or agents;
3.3.2 wholly or partly from an act or omission compelled by law;
3.3.3 as a result of any increase in rates of Taxation since the
Balance Sheet Date or as a result of the retrospective
imposition of Taxation as a consequence of a change in the
law enacted after the date of this Agreement;
3.3.4 wholly or partly as a result of the passing or coming into
force (other than in respect of the Contaminated Land
Provisions) of or any change in any enactment, law,
regulation, directive,
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requirement or any published practice of any government,
government department or agency or regulatory body
(including but not limited to extra-statutory concessions
of the Inland Revenue) after the date hereof whether or not
having retrospective effect PROVIDED THAT the limitation in
this PARAGRAPH 3.3.4 shall not apply so as to limit the
liability of the Vendor under the Environmental Indemnity;
3.3.5 wholly or partly as a result of a change of accounting
policy or practice of the Purchaser or any Group Company
introduced after the date of this Agreement;
3.4 under the Warranties or the Indemnities to the extent that the
Purchaser or any Group Company makes recovery under the terms of
any insurance policy against any loss or damage it may suffer.
4. For the avoidance of doubt, the liability of the Vendor under the
Warranties or the Indemnities shall not be limited by any contingent
liability noted in the Completion Accounts unless a specific provision or
reserve is also included in such accounts in which event PARAGRAPH 3.2
above shall apply.
5. The Purchaser shall reimburse to the Vendor an amount equal to any sum
paid by the Vendor in respect of any breach of any of the Warranties or
pursuant to the Indemnities which is subsequently recovered by the
Purchaser or any Group Company from any third party, after deducting from
such sum its reasonable costs received in connection with such recovery
and any Taxation thereon.
6. If a claim is made by a third party against the Purchaser or any Group
Company in respect of a matter in respect of which it appears that the
Vendor is or may become liable under the Warranties, then the Purchaser
shall as soon as reasonably practicable give notice thereof to the Vendor
and, at the written request of the Vendor and subject to the Purchaser
being indemnified and kept indemnified to its reasonable satisfaction
against any claims, costs, expenses and other liabilities, the Purchaser
shall take such action as the Vendor may reasonably require to avoid,
dispute or compromise such claim and the Purchaser shall render to the
Vendor all such assistance as the Vendor require in disputing such claim.
Nothing in this PARAGRAPH 6 shall oblige the Purchaser to take any action
where, in the opinion of the Purchaser, such action would cause damage to
the goodwill of the Business of any part thereof. No claim by the
Purchaser under the Warranties shall be prejudiced by:-
6.1 any failure to give notice to the Vendor as aforesaid; or
6.2 any decision by the Purchaser not to take any action requested by
the Vendor in order to protect the goodwill of the Business or any
part thereof.
7. If any claim is made by the Purchaser for breach of any of the Warranties
or the Indemnities then, for the purpose of determining the amounts for
which the
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Vendor is liable as a result of such breach, there shall be taken into
account and credit given for the amount by which at the date of such a
claim any liability of the Group Companies provided for in the Completion
Accounts has been discharged or satisfied below the amount provided
therefore in the Completion Accounts.
8. The Tax Warranties shall not apply to Aspect Vision Italia s.r.l.
PART 2 - FINANCIAL LIMITATIONS UNDER THE WARRANTIES, INDEMNITIES AND THE
DEED OF TAX COVENANT
9. The liability of the Vendor in respect of any claim::-
9.1 under the Warranties, the Indemnities or the Deed of Tax Covenant
shall not arise unless and until the amount of such claim, when
aggregated with the amount of any other such claim made against
the Vendor under this Agreement or under the Deed of Tax Covenant
(or which would have been made but for the operation of this
PARAGRAPH 8) exceeds 'L'150,000 in which event all of such claim
or claims shall be recoverable hereunder;
9.2 under the Warranties, the Indemnities or the Deed of Tax Covenant
shall not (when aggregated with the amount of all other claims
made against the Vendor under the Warranties, the Indemnities or
the Deed of Tax Covenant) exceed twenty per cent (20%) of the
Total Consideration (the "Cap"). For the purposes of this
PARAGRAPH 9.2, the Total Consideration shall be calculated at the
time the liability for the claim is due to be satisfied and shall
be the aggregate of:-
9.2.1 the Cash Consideration;
9.2.2 the nominal value of the Purchase Notes;
9.2.3 the nominal value of the EOLN; and
9.2.4 the aggregate consideration paid by the Purchaser for such
of the Earn Out Shares, or for the options over the
Earn-Out shares, as have been purchased by the Purchaser
pursuant to the Earn-Out Agreement at that date;
SO THAT where a claim is to be satisfied before the EOLN has been issued
and/or the Earn Out Shares have been purchased and as a result of the
calculation of the Cap at that time the claim is not satisfied in full,
the balance of the amount payable in respect of the claim shall not be
extinguished but shall remain outstanding and shall be paid by the Vendor
at the time the EOLN is issued and/or Earn Out Shares are purchased to
the extent that the Cap, recalculated at that time, increases.
PART 3 - TIME LIMITATIONS UNDER THE WARRANTIES
(OTHER THAN TAX WARRANTIES AND ENVIRONMENTAL WARRANTIES)
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10. The liability of the Vendor in respect of any claim under the Warranties
other than a claim in respect of the Tax Warranties or the Environmental
Warranties shall cease on the second anniversary of Completion except in
respect of matters which have been the subject of a bona fide written
claim which is made before that date by or on behalf of the Purchaser to
the Vendor which gives such reasonable details of all material aspects of
the claim as are then available including the Purchaser's bona fide
estimate of the amount thereof.
PART 4 - TIME LIMITATIONS UNDER THE TAX WARRANTIES
11. The liability of the Vendor in respect of any claim under the Tax
Warranties shall cease on the sixth anniversary of Completion except in
respect of matters which have been the subject of a bona fide written
claim which is made before that date by or on behalf of the Purchaser to
the Vendor which gives such reasonable details of all material aspects of
the claim as are then available including the Purchaser's bona fide
estimate of the amount thereof.
PART 5 - ENVIRONMENTAL WARRANTIES AND ENVIRONMENTAL INDEMNITY
12. The liability of the Vendor in respect of any claim under the
Environmental Warranties or the Environmental Indemnity shall cease on
the sixth anniversary of Completion, except in respect of matters which
have been the subject of a bona fide written claim which is made before
that date by or on behalf of the Purchaser to the Vendor which gives such
reasonable details of all material aspects of the claim as are then
available including the Purchaser's bona fide estimate of the amount
thereof.
PART 6 - OTHER PROVISIONS
13. Any claim which may be made in respect of the Warranties shall be deemed
to be withdrawn (if it has not been previously satisfied, settled or
withdrawn) unless legal proceedings in respect of such claim shall have
been commenced by the Purchaser against the Vendor within 12 months of
the date of notification of the claim save that where notification is
made by the Purchaser of a claim which is contingent such claim shall be
deemed to be withdrawn unless legal proceedings in respect of such claim
have been commenced within 6 months of the claim crystallising.
14. The rights of the Purchaser in respect of a breach of any of the
Warranties shall not be affected by Completion.
15. This SCHEDULE 8 which, inter alia, regulates or otherwise affects the
liability of the Vendor shall remain in full force and be fully
applicable in all circumstances and, in particular (but without
limitation), shall not be discharged in whole or in part by any breach of
any of the Warranties or any claim against the Vendor in respect of the
Warranties, the Indemnities or the Deed of Tax Covenant, whatever its
nature or consequences, nor by any other matter whatsoever.
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SCHEDULE 9
PART 1 - EXHIBITS
Exhibit A - Accounts
Exhibit B - Management Accounts
Exhibit C - Memorandum and Articles of Association (Warranty 2.2)
Exhibit D - Financial facilities (Warranty 7.2)
Exhibit E - Insurance policies (Warranty 11.2)
Exhibit F - Material contracts (Warranty 15.2)
Exhibit G - Particulars of employees (Warranty 16.1)
Exhibit H - List of members of group personal pension scheme
(Warranty 17.1)
Exhibit I - Particulars of Pension Schemes (Warranty 17.2)
Exhibit J - Particulars of Intellectual Property (Warranty 18.1.1)
Exhibit K - Intellectual Property Agreements (Warranty 18.3.1)
PART 2 - DOCUMENTS IN THE AGREED TERMS
AVC Agreement
AVI Agreement
CLT Agreement
Deed of Contribution
Deed of Tax Covenant
Directors resignation letters
Earn Out Agreement
NFHC Agreement
Non-Competition Agreements
Patent Licence
Purchase Notes
Service Agreements
Share Charge
Subordination Agreement
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SCHEDULE 10
TCC STOCK OPTIONS
PART A - OPTIONS TO BE GRANTED AT EXCHANGE OF THIS AGREEMENT
(1) (2)
Name Entitlement to options
B ▇▇▇▇▇ 13,800
I ▇▇▇▇▇▇▇▇ 13,800
R ▇▇▇▇▇ 13,800
I ▇▇▇▇▇▇▇▇▇ 13,800
G ▇▇▇▇▇▇ 13,800
F Lambertini 13,800
▇ ▇▇▇▇▇▇ 8,800
G ▇▇▇▇▇▇▇ 8,800
M ▇▇▇▇▇ 8,800
I ▇▇▇▇▇▇ 8,800
R ▇▇▇▇▇▇▇▇ 3,800
K ▇▇▇▇▇▇▇ 3,800
G Cheater 3,800
B Ford 3,800
G ▇▇▇▇▇▇▇ 3,800
M May 3,800
K ▇▇▇▇▇ 1,300
▇ ▇▇▇▇▇▇▇ 1,300
M ▇▇▇▇ 1,300
C ▇▇▇▇▇ 1,300
M Lush 1,300
PART B - OPTIONS TO BE GRANTED AFTER THE DATE HEREOF
(1) (2)
Name Entitlement to options
B ▇▇▇▇▇ 1,200
I ▇▇▇▇▇▇▇▇ 1,200
R ▇▇▇▇▇ 1,200
I ▇▇▇▇▇▇▇▇▇ 1,200
G ▇▇▇▇▇▇ 1,200
F Lambertini 1,200
▇ ▇▇▇▇▇▇ 1,200
G ▇▇▇▇▇▇▇ 1,200
M ▇▇▇▇▇ 1,200
I ▇▇▇▇▇▇ 1,200
R ▇▇▇▇▇▇▇▇ 1,200
K ▇▇▇▇▇▇▇ 1,200
G Cheater 1,200
B Ford 1,200
G ▇▇▇▇▇▇▇ 1,200
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M May 1,200
K ▇▇▇▇▇ 1,200
▇ ▇▇▇▇▇▇▇ 1,200
M ▇▇▇▇ 1,200
C ▇▇▇▇▇ 1,200
M Lush 1,200
PART C - OPTIONS TO BE GRANTED AT THE VENDOR'S DIRECTION
(1) (2)
Name Entitlement to options
Such persons as the Vendor may direct Up to 62,500 in aggregate
--------------------------------
Total 235,000
--------------------------------
-88-
SIGNED by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ )
in the presence of:- )
)
SIGNED by )
for and on behalf of )
ASPECT VISION HOLDINGS LIMITED )
in the presence of:- )
SIGNED by )
for and on behalf of )
THE ▇▇▇▇▇▇ COMPANIES, INC. )
in the presence of:- )
-89-