1
Exhibit 10.5
SHARE PURCHASE AGREEMENT
in respect of the acquisition of the
entire issued share capital of
QUALTECH HOLDINGS LIMITED
among
PAMARCO EUROPE LIMITED
PAMARCO TECHNOLOGIES, INC.
and
THE SHAREHOLDERS OF QUALTECH HOLDINGS LIMITED
Section Page
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1. Definitions and Interpretation 1
2. Purchase and Sale of Shares 6
3. Closing 9
4. Warranties of the Sellers 10
5. Representations and Warranties of the Buying Parties 24
6. Conditions Precedent to Obligations of the Buying Parties 26
7. Conditions Precedent to Obligations of the Sellers 26
8. Competition and Confidentiality 26
9. Limitation on the Sellers' Liability and Claims Procedure 27
10. Entire Agreement 31
11. Amendment, Parties in Interest, Assignment, Etc. 31
12. Post Closing Obligations 32
13. Notices 32
14. Governing Law 33
15. Counterparts 33
2
Exhibits
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A Building Lease
B Escrow Agreement
C Debt
D Fixed Asset Schedule
Schedules
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1. The Sellers
2. Part I The Company
Part II the Subsidiaries
3. Disclosures
Section:
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4.3 Required Consents
4.6 Encumbrances
4.7 Real Property
4.9 Non-Real Estate Leases
4.12 Liabilities
4.13 Taxes
4.14 Subsidiaries
4.15 Litigation; Governmental Permits
4.16 Contracts
4.17 Insurance
4.18 Patents and Other Intellectual Property
4.19 Employees
4.20 Employee Benefit Plans
4.21 Corporate Records
4.22 Absence of certain charges
4.25 Customers and Suppliers
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SHARE PURCHASE AGREEMENT
DATED: June, 1995
BETWEEN:
(1) PAMARCO EUROPE LIMITED a company incorporated in England and Wales and
registered under Company Number 2684327, whose registered office is at
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ("the
Buyer"); and
(2) Each of the persons listed on Schedule 1 hereto, being the holders of
the whole of the issued share capital of the Company (together the
"Sellers"); and
(3) PAMARCO TECHNOLOGIES, INC., a Delaware corporation, whose principal
place of business is at ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
New Jersey 07974, USA ("Pamarco").
WHEREAS:
(A) The Sellers are together the beneficial owners and registered holders of the
entire issued share capital of Qualtech Holdings Limited, a company incorporated
in England and Wales and having its registered office as Fernden House, Chapel
Lane, Stockton Heath, Warrington, Cheshire, brief particulars of which are set
out in Part I of Schedule 2. ("the Company").
(B) The Subsidiaries are the only subsidiaries of the Company and they are each
wholly-owned. Brief particulars of each of the Subsidiaries are set out in Part
II of Schedule 2.
(C) Pamarco is the ultimate holding company of the Buyer.
(D) Subject to the limitations and exclusions contained in this Agreement, and
on the terms and conditions set forth herein, the Sellers are selling to the
Buyer, and the Buyer is buying from the Sellers, all of the Shares.
IT IS HEREBY AGREED as follows:
1. Definitions And Interpretation.
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For convenience, certain terms used in more than one part of this
Agreement are listed in alphabetical order and defined or referred to below
(such terms as well as any other terms defined elsewhere in this Agreement shall
be equally applicable to both the singular and plural forms of the terms
defined).
"Accounts" means the audited financial statements of the Company out of
each of the Subsidiaries for the year ended on the Balance Sheet Date.
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"Agreement" means this Agreement and the exhibits and schedules hereto.
"Assets" means all of the assets, properties, goodwill and rights of
every kind and description, real and personal, tangible and intangible, wherever
situated and whether or not reflected in the Accounts that are owned or used by
any Group Company.
"Balance Sheet Date" means 31 December 1994.
"Benefit Plans" means all employee benefit plans of any Group Company
and any related or separate Contracts, plans, trusts, programs, policies,
arrangements, practices, customs and understandings, in each case whether formal
or informal, that provide benefits of economic value to any present or former
employee of any Group Company, or present or former beneficiary, dependant or
assignee of any such employee or former employee.
"Building Lease" means the lease of the property situated at ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ to be entered into on the Closing Date
between Earthgrade Limited and the Buyer in the form of Exhibit A.
"Business" means the entire business and operations of the Group on a
consolidated basis unless otherwise specified.
"Buyer" is defined above in the preamble.
"Buying Parties" means the Buyer and Pamarco.
"Buyers' Counsel" means ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ of ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ and ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇.
"Charter Documents" means an entity's certificate of incorporation,
memorandum and articles of association, and any joint venture agreement or
similar document governing the entity.
"Closing" means completion of the sale and purchase of the Shares in
accordance with Section 3.1.
"Closing Date" means June 1995.
"Company" means Qualtech Holdings Limited, brief particulars of which
are set out in Part I of Schedule 2.
"Contingent Purchase Price" is defined in Section 2.4(a).
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"Contract" means any written or oral contract, agreement, lease,
instrument or other commitment that is binding on any person or its property
under applicable law.
"Court Order" means any judgment, decree, injunction, order or ruling
of any federal, state, local or foreign court or governmental or regulatory body
or authority that is binding on any person or its property under applicable law.
"Debt" means the items listed in Exhibit C.
"Default" means (a) a breach, default or violation, or (b) the
occurrence of an event that with the passage of time or the giving of notice, or
both, would constitute a breach, default or violation.
"Dispute Notice" is defined in Section 2.4.3.
"Effective Date" means 19th June 1995.
"Encumbrances" means any lien, mortgage, security interest, pledge,
restriction on transferability, defect of title or other claim, charge or
encumbrance of any nature whatsoever on any property or property interest, other
than any liens for personal property taxes that are not yet due.
"Environmental Condition" is defined in Section 4.15.2.
"Environmental Law" is defined in Section 4.15.2.
"Escrow Agent" means FIRST FIDELITY BANK, N.A. of ▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇.
"Escrow Agreement" means the Escrow Agreement to be entered into on the
Closing Date between Escrow Agent, the Buyer and the Sellers in the form of
Exhibit B.
"Flexographic Services" means Flexographic Services Limited, a
wholly-owned subsidiary of the Company brief details of which are set out in
Part II of Schedule 2.
"Flexographic Supplies" means Incorporated Flexographic Supplies
Limited, a wholly-owned subsidiary of the Company brief details of which are set
out in Part II of Schedule 2.
"Financial Statements" is defined in Section 4.5.
"SSAP" means statements of standard accounting practice and other
generally accepted accounting principles in England and Wales.
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"Governmental Permits" is defined in Section 4.15.4.
"Group" means the Company and the Subsidiaries.
"Group Company" means the Company or any Subsidiary.
"Hazardous Substances" means (i) any gasoline, fuel oil or any other
petroleum products, explosives, alcohols or chemical solvents or polychlorinated
biphenyls, (ii) any substance, waste, material or product defined as hazardous,
radioactive, extremely hazardous or toxic under any Environmental Law, and (iii)
asbestos or asbestos- containing substances.
"Intellectual Property" is defined in Section 4.18.
"Liability" means any direct or indirect liability, indebtedness,
obligation, expense, claim, loss, damage, deficiency, guaranty or endorsement of
or by any person, absolute or contingent, accrued or unaccrued, due or to become
due, liquidated or unliquidated.
"Litigation" means any lawsuit, legal action, arbitration,
administrative or other proceeding, criminal prosecution or governmental
investigation or inquiry.
"Loan Note" means the 6% Loan Note payable by the Buyer to the Sellers
in the aggregate principal amount U.S. $287,500.
"Minor Contracts" is defined in Section 4.16.1.
"Non-Real Estate Leases" is defined in Section 4.9.
"Ordinary course" or "ordinary course of business" means the ordinary
course of business that is consistent with past practices.
"Pamarco" is defined above in the Preamble.
"Pamarco Stock" means the 75,000 shares of Class A Common (voting)
Stock, par value $0.01 per share, of Pamarco.
"Person" means any natural person, corporation, partnership,
proprietorship, association, trust or other legal entity.
"Purchase Price" is defined in Section 2.1.
"Real Property" is defined in Section 4.7.
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"Regulation" means any statute, law, ordinance, regulation, order or
rule of any governmental agency or body or of any other type of regulatory body,
including those covering environmental, energy, safety, health, transportation,
bribery, recordkeeping, zoning, antidiscrimination, antitrust, wage and hour,
and price and wage control matters.
"Required Consents" is defined in Section 4.3.
"Sellers" is defined above in the preamble.
"Sellers' Solicitors" means Davies ▇▇▇▇▇▇ ▇▇▇▇▇▇ of ▇-▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇.
"Shares" the 10,200 fully paid ordinary shares of (pound)1 each in the
capital of the Company, being the entire issued share capital of the Company.
"Subsidiaries" means Flexographic Services and Flexographic Supplies.
"Tax" means corporation tax, advance corporation tax, income tax,
capital gains tax, inheritance tax, value added tax, national insurance
contributions, capital duty, stamp duty, stamp duty reserve tax, duties of
customs and excise, local authority rates and charges, all taxes, duties or
charges replaced by or replacing any of them, and all other taxes on gross or
net income, profits or gains, distributions, receipts, sales, franchise, value
added, and all levies, duties, charges or withholdings of any nature whatsoever
chargeable by any tax authority, together with all penalties, charges and
interest relating to any of the foregoing or to any late or incorrect return in
respect of any of them (save insofar as attributable to the delay or default
after Closing of the Company, any Subsidiary or any of the Sellers.)
"Taxes Act" means the Income and Corporation Taxes ▇▇▇ ▇▇▇▇.
"Tax Indemnity" means the deed of indemnity in the agreed form to be
entered into on Closing by each of the Sellers.
"Transaction Documents" means this Agreement, the Tax Indemnity, the
Escrow Agreement, the Building Lease and the other agreements and documents
contemplated thereby.
"Transactions" means the purchase and sale of the Shares and the other
transactions contemplated by the Transaction Documents.
"Warranties" the warranties of the Sellers contained in Section 4.
1.2 A reference to a section, schedule, exhibit or paragraph will be
construed as a reference to the section, schedule, exhibit or paragraph
of that number in or
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to this Agreement. The Schedules and Exhibits form part of this
Agreement and shall be deemed incorporated herein. Unless the context
of this Agreement clearly requires otherwise, (a) references to the
plural include the singular, the singular the plural, the part the
whole, (b) "or" has the inclusive meaning frequently identified with
the phrase "and/or" and (c) "including" has the inclusive meaning
frequently identified with the phrase "but not limited to." The section
and other headings contained in this Agreement are for reference
purposes only and shall not control or affect the construction of this
Agreement or the interpretation thereof in any respect. Section,
subsection, schedule and exhibit references are to this Agreement
unless otherwise specified. Each accounting term used herein that is
not specifically defined herein shall have the meaning given to it
under SSAP.
1.3 A document referred to as being "in the agreed form" will be in the
form of the draft thereof for identification initialled by the Sellers'
Solicitors and the Buyers' Counsel.
1.4 Each of the Warranties, indemnities and obligations which is
expressed to be an obligation of the Sellers or of one or more of the
Sellers shall be a joint and several obligation unless it is expressed
to be an obligation of each of the Sellers or of each of one or more of
the Sellers, in which case it shall be a several obligation.
1.5 Where any of the Warranties refers to the knowledge, information,
awareness or belief of the Sellers, each of the Sellers undertakes that
he has made due enquiry into the subject matter of that Warranty
including, without limitation, due and careful enquiry of the
directors, officers, senior employees and auditors of each Group
Company and it shall not be a defence that the Sellers or either of
them did not appreciate the relevance or significance of any particular
matter.
1.8 A person shall be deemed to be connected with another if that
person is connected with another within the meaning of section 839 of
the Taxes Act and "Control", "Controlling" and "associate" shall be
construed accordingly.
2. Purchase and Sale of Shares.
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2.1 PURCHASE AND SALE OF SHARES. At the Closing, the Buyer shall buy
from the Sellers, and the Sellers shall sell to the Buyer, the Shares
as beneficial owner, free from all liens charges, encumbrances and
equities and together with all rights now or hereafter attaching
accrued or accruing thereto arising therefrom with effect from the
opening of business on the Effective Date. The Buyer shall be entitled
to all dividends and distributions declared, paid or made by the
Company on or after the Effective Date. The Buyer need not complete
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the purchase of any of the Shares unless the purchase of all of the
Shares is completed simultaneously. The Sellers hereby waive all rights
of pre-emption which they may have pursuant to the Company's Articles
of Association or otherwise in respect of the Shares.
2.2 PAYMENTS. The aggregate purchase price for the Shares shall be:
2.2.1 (pound) million in cash, of which (pound) will be held in
escrow (the "Escrow Funds") pursuant to Section 2.5, (the "Closing
Payments");
2.2.2 the principal amount of the Subordinated Note;
2.2.3 the Pamarco Stock; and
2.2.4 the Contingent Purchase Price (if any),
as hereinafter defined (collectively, the "Purchase Price"). The Buyer
shall make the Closing payments for the Shares in "same day" funds on
the Closing Date by wire transfer.
2.3 ALLOCATION AMONG SELLERS. Each Seller shall be obligated to sell to
the Buyer the number of Shares set forth next to such Seller's name in
Schedule 1. Subject to any claims under the Warranties or the Tax
Indemnity, the Sellers shall be entitled to receive the aggregate
Purchase Price, which shall be allocated among the Sellers in equal
shares.
2.4 CONTINGENT PURCHASE PRICE.
2.4.1 The Buyer shall pay to the Sellers an additional sum ("the
Contingent Purchase Price") under this Section 2.4 the amount of
which shall be dependent upon the excess (if any) of the combined
earnings before interest and taxes of the Buyer and the Group
(together) for the three years ending 31 December 1996, 1997 and
1998 ("the Earnings Periods") as shown in the consolidated
audited accounts for the Buyer and the Group for the Earnings
Periods, over the combined earnings before interest and taxes of
the Buyer and the Group for the year ending 31 December 1995 ("the
1195 EBIT") as calculated and adjusted in the manner provided in
Section 2.4.2.
2.4.2 In calculating the combined earnings before interest and
taxes for the Buyer and the Group for the period from Closing to
31st December, 1995 and the Earnings Periods there shall be
excluded any pre-tax profits
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or losses of the Buyer attributable to any shares of any other
company or business and assets of any other company or
partnership acquired by the Buyer during the Earnings Periods
and the combined earnings before interest and taxes for the
Earnings Periods shall be adjusted accordingly ("the Combined
EBIT").
2.4.3 The combined earnings before interest and after taxes
for the Buyer and the Group for the financial year to 31st
December, 1995 ("the 1995 EBIT shall be multiplied by a
compound annual growth figure of 5 per cent in each of the
three Earnings Periods (the resulting figure at the end of the
Earnings Periods, that is being hereinafter referred to as
"the 5 per cent growth figure").
2.4.5 The 1995 EBIT shall also but separately be multiplied by
a compound annual growth figure of 12.5 per cent in respect of
each of the three Earnings Periods (the resulting figure at
the end of the Earnings Periods being hereinafter referred to
as "the 12.5 per cent growth figure").
2.4.6 If the Combined EBIT for each of the three Earnings
Periods when aggregated with one another amount to the 5 per
cent growth figure the amount of the Contingent Purchase Price
shall be US$100,000.
2.4.7 If the Combined EBIT amounts to or exceeds the 12.5 per
cent growth figure the amount of the Contingent Purchase Price
shall be US$300,000. For the avoidance of doubt, the maximum
amount of the Contingent Purchase Price shall be US$300,000.
2.4.8 If the Combined EBIT exceeds the 5 per cent growth
figure but fall short of the 12.5 per cent growth figure the
Contingent Purchase Price shall be calculated by applying the
following formula, where x is the percentage increase in
Combined EBIT above the 1995 EBIT.
US$ (X-5) x 200,000 + 100,000 = Contingent
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7.5 Purchase Price
2.4.9 If the Combined EBIT falls short of the 5 per cent
growth figure no Contingent Purchase price shall be payable.
2.4.10 The Buyer shall procure that its Auditors shall upon
completion of their audit of the Buyer's accounts for the year
ending 31 December 1998 (and at the cost of the Buyer) issue
to each of the Buyer and the Sellers a certificate ("the EBIT
Certificate") as to the respective amounts
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of the 5 per cent growth figure, the 12.5 per cent growth
figure, the 1995 EBIT, the Combined EBIT and the Contingent
Purchase Price.
2.4.11 The Buyer and the Sellers shall have a period of 14
days from receipt of the EBIT Certificate within which either
or both of them may by written notice to the other of them and
to the Auditors dispute the EBIT Certificate failing which it
shall at the end of that period be final and binding upon the
parties and the Buyer shall not later than the 30th day
following the receipt of the certificate pay to the Sellers
the amount of the Contingent Purchase Price by wire transfer
of immediately available funds.
2.4.12 In the event of the Buyer or the Sellers disputing the
EBIT Certificate and the dispute not being resolved in a
manner satisfactory to the Buyer and the Sellers within 30
days following the date upon which the notice of dispute is
given the calculation of the Contingent Purchase Price or (as
the case may be) whether or not any Contingent Purchase Price
is payable shall be referred to an independent accountant to
be nominated on the application of either party by the
President for the time being of the Institute of Chartered
Accountants in England and Wales whose decision shall in the
absence of manifest error be final and binding upon the
parties and whose costs shall be borne equally between the
Buyer of the one part and the Sellers of the other.
2.4.13 For the avoidance of doubt pre-tax profits shall
(subject as provided in Section 2.4.2) be determined in
accordance with SSAP and the accounting practices and
procedures customarily followed by the Buyer and the Group
Companies.
2.5 ESCROW ACCOUNT. At the Closing, the Sellers and the Buyer are
entering into the Escrow Agreement with the Escrow Agent under which
the Escrow Agent shall hold the Escrow Funds as detailed therein.
3. Closing.
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3.1 LOCATION. The closing for the Transactions (the "Closing") shall be
held at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ in London on the Closing
Date.
3.2 DELIVERIES. At the Closing, the parties shall procure that the
following events shall occur:
3.2.1 The Buyer shall pay by wire transfers of same day available
funds (A) (pound) to the Sellers to the Sellers' Solicitors Client
account and (B) (pound) to the Escrow
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Agent in accordance with the Escrow Agreement (the "Escrow Funds");
3.2.2 the Buyer shall deliver to the Sellers the Loan Note;
3.2.3 Pamarco shall deliver to the Sellers the Pamarco Stock;
3.2.4 each of the Sellers shall deliver to the Buyer certificates
representing the number of the Shares set forth next to such
Seller's name in Schedule 1, accompanied by Stock Transfer forms in
respect of the same;
3.2.5 the Sellers shall deliver an original of the Tax Indemnity,
duly executed by each Seller;
3.2.6 the Escrow Agreement shall be delivered, duly executed by the
parties thereto;
3.2.7 the Building Lease shall be delivered, duly executed by the
parties thereto.
3.2.8 written confirmation from Bank plc that all amounts of loans
to Sellers or their associates have been repaid in respect of the
mortgages and charges referred to in Schedule 2.
3.2.9 the company seals and statutory books of each Group Company,
including the registers and minute books of each such company.
3.2.10 the parties shall also deliver to each other the agreements,
and other documents and instruments specified in Sections 6 and 7
and such other items as may be reasonably requested.
4. Warranties of the Sellers.
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The Warranties are subject only to the exceptions specifically
identified in this Agreement and its Exhibits and fully and accurately set out
therein or on the face of the copy documents and papers annexed thereto. Each of
the Warranties is a separate and independent warranty and shall not, and the
liability of the Sellers hereunder shall not, be limited by or restricted by
reference to or inference from any of the other Warranties, or any knowledge of
any of the officers, employees or advisers of the Buyer who are officers
employees or advisers of any Group Company.
The Buyer acknowledges that it has had the opportunity to undertake and
has undertaken a commercial and financial due diligence exercise in respect of
the Company
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and the Subsidiaries. The Sellers warrant that all information supplied in
writing by or on behalf of the Sellers in connection with such due diligence
exercise in response to the due diligence questionnaire submitted to the Sellers
is accurate in all material respects and that nothing has been omitted from such
information or supplied which would render it misleading.
Whilst with respect to disclosure the Warranties are subject only as
provided in the first paragraph of this Section, the Buyer acknowledges that as
at the Closing Date it has no actual knowledge of any material fact of
circumstance revealed by the due diligence exercise which will result in the
Buyer bringing a claim for breach of the warranties after the Closing. For the
avoidance of doubt, the Sellers hereby waive any claims against the Group
Companies which as employees of the Group Companies which they might have in
connection with the giving of the warranties and the seeking of any disclosures
against such warranties.
The Sellers hereby jointly and severally warrant to the Buyer in the
terms of the Warranties.
4.1 CORPORATE STATUS. Each Group Company is a corporation duly
organized, validly existing and in good standing under the laws of
England and Wales. Each Group Company is qualified to do business as a
foreign corporation in any jurisdiction where it is required to be so
qualified, except where the failure to so qualify would not have a
material adverse effect. The copy Memorandum and Articles of
Association of each Group Company that have been delivered to the
Buying Parties have been duly adopted and are current, correct and
complete.
4.2 AUTHORIZATION. Each of the Sellers and each Group Company has the
requisite power and authority to execute and deliver the Transaction
Documents to which it is a party and to perform the Transactions to be
performed by it. Such execution, delivery and performance by such
persons has been duly authorized by all necessary corporate action. The
Transaction Documents constitute valid and binding obligations of each
and any Group Company that is a party thereto, enforceable against each
such party in accordance with their terms.
4.3 CONSENTS AND APPROVALS. Except for any consents specified on
SCHEDULE 4.3 (the "Required Consents"), neither the execution and
delivery by any Seller or any Group Company of the Transaction
Documents to which it is a party, nor the performance of the
Transactions to be performed by any Seller or any Group Company will
require any filing, consent or approval or constitute a Default under
(a) any Regulation or Court Order to which any Seller or Group Company
is subject, (b) the Charter Documents or bylaws of any Seller or Group
Company or (c) any Contract, Government Permit or other document to
which any Seller or Group Company is a party or by which the properties
or other
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assets of any Group Company may be subject. All of the Required
Consents are valid and have been properly obtained.
4.4 CAPITALIZATION AND STOCK OWNERSHIP. The Shares comprise the total
issued share capital of the Company, being (pound)10,200 divided into
10,200 Ordinary shares of (pound)1 each all of which have been issued
and are fully paid on the date hereof. There are no existing options,
warrants, calls, commitments or other rights of any character
(including conversion or preemptive rights) relating to the acquisition
of any issued or unissued capital stock or other securities of the
Company. All of the Shares are duly and validly authorized and issued,
and all stamp duties in respect of any transfer of the same prior to
Closing has been paid. Upon completion of the Transactions at the
Closing, the Buyer shall receive valid title to the Shares, free and
clear of all Encumbrances.
4.5 FINANCIAL STATEMENTS. Each Group Company has delivered to the
Buying Parties correct and complete copies of such Group Company
unaudited monthly financial statements consisting of a balance sheet of
such Group Company as of the end of each month from January 31, 1992
through April 30, 1995 and the related statements of income, retained
earnings and cash flows for the periods then ended. Each Group Company
has also delivered to the Buying Parties correct and complete copies of
financial statements consisting of a balance sheet of such Group
Company as of December 31, 1992, 1993 and 1994, and the related
statements of income, retained earnings and cash flows for the periods
then ended, all of which have been audited by the firm of GLF. All such
financial statements specified in this Section 4.4 are referred to
herein collectively as the "Financial Statements." The Financial
Statements are consistent with the books and records of the Company,
and there have not been any material transactions that have not been
recorded in the accounting records underlying the Financial Statements.
In addition, the Financial Statements have been prepared in accordance
with SSAP consistently applied and presented accurately the financial
position and Assets and Liabilities of each Group Company as at the
dates to which they have respectively been made up, and the results of
its operations for the periods then ended. The Accounts comply with the
requirements of the Companies ▇▇▇ ▇▇▇▇ (as amended) and are not
affected by any extraordinary, exceptional or non-recurring item, save
as specifically identified in the notes thereto.
4.6 TITLE TO ASSETS AND RELATED MATTERS. Each Group Company has good
and marketable title to, or valid leasehold interests in, all of its
Assets (including the Real Property defined below), free from any
Encumbrances except those specified on SCHEDULE 4.6. The use of the
Assets is not subject to any Encumbrances (other than those specified
in the preceding sentence), and such use does not materially encroach
on the property or rights of anyone else. All Real Property and
tangible personal property (other than inventory) of each
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Group Company is suitable for the purposes for which it is used, in
good working condition and reasonable repair, free from any known
defects, except such minor defects that would not have a material
adverse effect fair wear and tear accordingly to age and usage
excepted.
4.7 REAL PROPERTY. SCHEDULE 4.7 describes all real estate used in the
operation of the Business as well as any other real estate that is in
the possession of or leased by each Group Company and the improvements
(including buildings and other structures) located on such real estate
(collectively, the "Real Property"), and lists any leases under which
any such Real Property is held (the "Real Estate Leases"). To the
knowledge of any Seller, no Group Company is currently in Default under
any of the Real Estate Leases, and no Seller is aware of any Default by
any of the lessors thereunder. No Group Company has an ownership
interest in any real property. SCHEDULE 4.7 also describes any other
real estate previously owned, leased or otherwise operated by any Group
Company and the time periods of any such ownership, lease or operation.
4.8 CERTAIN PERSONAL PROPERTY. The Sellers have delivered to the Buying
Parties a complete fixed asset schedule in the form of Exhibit D,
describing and specifying the location of all items of tangible
personal property (other than inventory) that were included in the
Accounts. Since the Balance Sheet Date, the Company has not acquired
any items of tangible personal property that have, in each case, a
carrying value (net book value) in excess of (POUND)50,000, or an
aggregate carrying value of (POUND)500,000. All of such personal
property is in operating condition, reasonable wear and tear excepted
or has been fully depreciated.
4.9 NON-REAL ESTATE LEASES. SCHEDULE 4.9 lists all assets and property
(other than Real Property) that are being used in the operation of the
Business and that are possessed by any Group Company under an existing
lease, including all automobiles, machinery, equipment, furniture and
computers, except for any lease under which the aggregate annual
payments are less than (POUND)25,000 (each, an "Immaterial Lease"). The
aggregate annual payments under all Immaterial Leases does not exceed
(POUND)500,000. SCHEDULE 4.9 includes the leases under which such
assets and property listed on SCHEDULE 4.6 are possessed. All of such
leases (excluding Immaterial Leases) are referred to herein as the
"Non-Real Estate Leases." To the knowledge of any Seller, no Group
Company is currently in Default under any of the Non-Real Estate
Leases, and no Seller is aware of any Default by any of the lessors
thereunder.
4.10 ACCOUNTS RECEIVABLE. The accounts receivable of each Group Company
are bona fide accounts receivable created in the ordinary course of
business and are good and collectible (net of the reserve for doubtful
accounts included in the Accounts) within 120 days at the aggregate
recorded amounts thereof.
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16
4.11 INVENTORY. All stock in trade of each Group Company consists of
items saleable in the ordinary course, and the value thereof included
in the Accounts is at least equal to the lower of cost and net
realisable value. The inventory records for each Group Company that
have been delivered to Buyer are accurate with respect to the data
contained therein at the date to which they have respectively been made
up.
4.12 LIABILITIES. Except as specified on SCHEDULE 4.12, none of the
Group Companies has any Liabilities, and none of the Assets of any
Group Company is subject to any Liabilities, except (a) to the extent
specifically disclosed in the Accounts, (b) Liabilities incurred since
the date thereof that, individually or in the aggregate, are not
material to the Business or the Assets, or (c) Liabilities under any
Contracts specifically disclosed on any Schedule to this Agreement that
were not required under SSAP to have been specifically disclosed or
reserved for in the Accounts.
4.13 TAXES.
4.13.1 ACCOUNTS. All liabilities, whether actual, deferred,
contingent or disputed, of each Group Company for tax measured
by reference to income, profits or gains earned, accrued or
received on or before the Balance Sheet Date or arising in
respect of an event occurring or deemed to occur on or before the
Balance Sheet Date are fully provided for or (as appropriate)
disclosed in the Accounts. All other warranties relating to
specific tax matters are made without prejudice to the generality
of this Section.
4.13.2 POSITION SINCE LAST ACCOUNTS DATE. Since the Balance
Sheet Date:
(a) no Group Company has been involved in any
transaction which has given or may give rise to a
liability to tax on any Group Company (or would
have given or might give rise to such a liability
but for the availability of any relief) other
than tax in respect of normal trading income or
receipts of the Group Company concerned arising
from transactions entered into by it in the
ordinary course of business;
(b) no payment has been made by any Group Company
which will not be deductible for the purposes of
corporation tax (or any corresponding tax on
profits in any relevant foreign jurisdiction),
either in computing the profits of that Group
Company or in computing the corporation tax or
corresponding tax chargeable on it;
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17
(c) no disposal has taken place or other event
occurred which had been planned or predicted at
the Balance Sheet Date and which has or may have
the effect of crystallising a liability which
should have been but was not reflected in the
provision for deferred tax contained in the
Accounts; and
(d) the Sellers have not caused any accounting
period (as defined in section 12 of the Taxes Act
1988) of any Group Company to end as referred to
in section 12(3) of that Act.
4.13.3 RETURNS ETC. Each Group Company has duly, and within
any appropriate time limits, made all returns, given all
notices and supplied all other information required to be
supplied to all relevant tax authorities; all such information
was and remains complete and accurate in all material respects
and were made on the proper basis and do not, and so far as
the Sellers are aware are not likely to, reveal any
transactions which may be the subject of any dispute with any
tax authority.
4.13.4 DISPUTES, INVESTIGATIONS. No Group Company is involved
in any current dispute with any tax authority or is or has in
the last six years been the subject of any investigation,
audit or non-routine visit by any tax authority. So far as the
Sellers are aware in relation to each Group Company there is
no planned investigation audit or non-routine visit by any tax
authority and there are no facts which might cause such an
investigation, audit or non-routine visit to be instituted.
4.13.5 EMPLOYEES/PENSIONS. All National Insurance
contributions and sums payable to the Inland Revenue under the
P.A.Y.E. system and any amounts of a corresponding nature
payable to any foreign tax authority due and payable by any
Group Company up to the date hereof have been paid and each
Group Company has made all such deductions and retentions as
should have been made under section 203 of the Taxes Act and
all regulations made thereunder or under any comparable laws
or regulations of any relevant foreign jurisdiction.
4.13.6 CAPITAL GAINS. If each Group Company disposed of each
of its assets (except trading stock and work-in-progress) for
a consideration equal to the book value of that asset as shown
in or adopted for the purposes of the Accounts to a person not
connected with it and by way of bargain at arm's length, no
liability to tax would arise by reference to any actual or
deemed gain and no Group Company has acquired any such asset
(otherwise than from another Group Company) except by way of
bargain at arm's length and from an unconnected person.
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4.13.7 No Group Company has made any such transfer as is
referred to in section 125 of the TCGA (close company
transferring assets at under value).
4.13.8 CAPITAL EXPENDITURE. If each Group Company disposed of
each of its assets, or of any pool of assets (that is to say
all those assets expenditure relating to which would be taken
into account in computing whether a balancing charge or
corresponding tax would arise on a disposal of any of those
assets) for a consideration equal to their book value as shown
in or adopted for the purpose of the Accounts, no balancing
charge (or corresponding tax of any relevant foreign
jurisdiction) would arise in respect of any such asset or pool
of assets under any legislation relating to capital allowances
(or corresponding legislation of the relevant foreign
jurisdiction).
4.13.9 LOSSES - MAJOR CHANGES ETC. There has been no change in
the ownership of any Group Company nor any major change in the
nature or conduct of any trade or business carried on by any
Group Company nor has any other event or series of events
occurred before Closing which might cause the disallowance of
the carry forward or back of losses or excess charges or the
disallowance of the carry forward or back, set-off or
surrender of advance corporation tax under the provisions of
section 768 or 768A of the Taxes Act (change in ownership of
company: disallowance of relief for trading losses) or
sections 245 to 245B (inclusive) of the Taxes Act (ACT set
off), or which might cause a trade to be disregarded by virtue
of paragraph 8 of Schedule 7A to the TCGA.
4.13.10 SURRENDERS Schedule 14.13 gives full details of any
surrender or claim or agreement to surrender or claim any
advance corporation tax under the provisions of section 240 of
the Taxes Act (surrender of advance corporation tax) or any
amount by way of group relief) by each Group Company,
including any receipt or payment (or any entitlement to
receive or obligation to make a payment) in respect thereof,
where such surrender or claim has not become final and
determined for any reason.
4.13.11 GROUP COMPOSITION All Group Companies resident in the
United Kingdom for tax purposes together comprise a group for
the purposes of Chapter IV of Part X of the Taxes Act and
there are no circumstances or arrangements as a result of
which any Group Company might cease to form part of such
group.
4.13.12 CLOSE COMPANIES
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(a) No apportionment under sections 423 to 430
(inclusive) and Schedule 19 to the Taxes Act has
been made or threatened against any Group
Company, and no action has been taken and no
event has occurred which could lead to such an
apportionment being made in relation to any
accounting period of a Group Company beginning on
or before 31 March 1989.
(b) Each Group Company has obtained clearances
under Schedule 19 to the Taxes Act for each
accounting period of that Group Company beginning
on or before 31 March 1989.
(c) Each Group Company has throughout each
accounting period beginning on or before 31 March
1989 been a trading company or a member of a
trading group as defined by paragraph 7 of
Schedule 19 to the Taxes Act.
(d) No Group Company has made any transfers of
value within section 94 of the Inheritance Tax
▇▇▇ ▇▇▇▇.
(e) No Group Company is or has at any time been a
close investment-holding company as defined in
section 13A of the Taxes Act.
(f) No Group Company has since 5 April 1965 done
anything so as to give rise to an assessment or
any charge to tax under section 419 (as extended
by section 422) of the Taxes Act (loans to
participators and associates).
4.13.13 VALUE ADDED TAX. For the purposes of this section the
expression "VAT LEGISLATION" shall include the Value Added Tax
▇▇▇ ▇▇▇▇, the Finance ▇▇▇ ▇▇▇▇ and all other enactments in
relation to value added tax and all notices, provisions and
conditions made or issued thereunder including the terms of
any agreement reached with H.M.
Commissioners of Customs and Excise.
4.13.14 In relation to each Group Company:
(a) it is registered for the purposes of value
added tax, has been so registered at all times
that it has been required to be registered by VAT
legislation, and such registration is not subject
to any conditions imposed by or agreed with H.M.
Customs and Excise;
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(b) it has complied fully with and observed in
all material respects the terms of VAT
legislation;
(c) it has maintained and obtained at all times
complete, correct and up-to-date records,
invoices and other documents(as the case may be)
appropriate or requisite for the purposes of VAT
legislation and has preserved such records,
invoices and other documents in such form and for
such periods as are required by VAT legislation;
(d) it obtains credit for all input tax paid or
suffered by it;
(e) it is not and has not been treated as a
member of a group for the purposes of VAT
legislation, and has not applied for such
treatment;
(f) it is not required to make payments on
account of value added tax for which it may
become liable in a prescribed accounting period
(pursuant to The Value Added Tax (Payments on
Account) Regulations 1992); and
(g) it is not and has not been subject under VAT
legislation to any penalty liability notice,
written warning of failure to comply, surcharge
liability notice or requirement to give security
as a condition of making taxable supplies.
4.14 SUBSIDIARIES. Except as specified on SCHEDULE 4.14, no Group
Company owns, directly or indirectly, any interest or investment
(whether equity or debt) in any corporation, partnership, business,
trust, joint venture or other legal en tity. The Company is the record
owner of all of the issued and outstanding shares of capital stock of
each of the Subsidiaries. All of such shares of each of the
Subsidiaries are duly and validly authorized, issued and fully paid.
There are no existing options, warrants, calls, commitments or other
rights of any character (including conversion or preemptive rights)
relating to the acquisition of any issued or unissued capital stock or
other securities of any of the Subsidiaries.
4.15 LEGAL PROCEEDINGS AND COMPLIANCE WITH LAW.
4.15.1 Except as disclosed on SCHEDULE 4.15, there is no
Litigation that is pending or, to any Seller's knowledge,
threatened against or related to any Group Company. There has
been no Default under any Regulations applicable to any Group
Company, including Regulations relating to
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pollution or protection of the environment, except for any
Defaults that would not have a material adverse effect. There has
been no Default with respect to any Court Order applicable
to any Group Company.
4.15.2 Without limiting the generality of Section 4.15.1, except
as described on SCHEDULE 4.15, there has not been any
Environmental Condition (defined below) (i) at the premises at
which the Business of any Group Company has been conducted, (ii)
at any property owned, leased or operated at any time by any
Group Company, any Person controlled by any Affiliate of any
Group Company or any predecessor thereof, or (iii) at any
property at which wastes have been deposited or disposed by or at
the behest or direction of any of the foregoing, nor has any
Group Company received written notice of any such Environmental
Condition. "Environmental Condition" means any condition or
circumstance, including the presence of Hazardous Substances,
whether created by any Group Company or any third party, at or
relating to any such property or premises that would (i) require
abatement or correction under an Environmental Law (defined
below), (ii) give rise to any civil or criminal liability under
an Environmental Law, or (iii) create a public or private
nuisance. "Environmental Law" means all Regulations and Court
Orders relating to pollution or protection of the environment as
well as any principles of common law under which a party may be
held liable for the release or discharge of any materials into
the environment.
4.15.3 The Company has delivered to the Buying Parties correct
and complete copies of any written reports, studies or
assessments in the possession or control of any Seller that
relates to any Environmental Condition.
4.15.4 Except in those cases where the failure would not have a
material adverse effect, (i) each Group Company has obtained and
is in full compliance with all governmental permits, licenses,
registrations, certificates of occupancy, approvals and other
authorizations (the "Governmental Permits"), all of which are
listed in SCHEDULE 4.15 along with their respective expiration
dates, that are required for the complete operation of the
Business of any Group Company as currently operated, (ii) all of
the Governmental Permits are currently valid and in full force
and (iii) each Group Company has filed such timely and
complete renewal applications as may be required with respect to
its Governmental Permits. To any Seller's knowledge, no
revocation, cancellation or withdrawal thereof has been
threatened.
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4.16 CONTRACTS.
4.16.1 SCHEDULE 4.16 lists each Contract of the following
types to which any Group Company is a party, or by which it is
bound, as of the execution date of this Agreement, except for
any Contract that may be terminated by such Group Company on
not more than 30 days' notice without any Liability and any
Contract under which the executory obligation of such Group
Company involves an amount of less than (pound)10,000 (such
excepted Contracts are referred to collectively as "Minor
Contracts"):
(a) Contracts with any present or former stockholder,
director, officer, employee, partner or consultant of
any Selling Party or associate thereof;
(b) Contracts for the future purchase of, or payment
for, supplies or products, or for the lease of any
Asset from or the performance of services by a third
party, in excess of (pound)25,000 in any individual
case, or any Contracts for the sale of inventory or
products that involve an amount in excess of
(pound)25,000 with respect to any one supplier or
other party;
(c) Contracts to sell or supply products or to
perform services that involve an amount in excess of
(pound)25,000 in any individual case;
(d) Contracts to lease to or to operate for any other
party any Asset that involve an amount in excess of
(pound)100,000 in any individual case;
(e) Any notes, debentures, bonds, conditional sale
agreements, equipment trust agreements, letter of
credit agreements, reimbursement agreements, loan
agreements or other Contracts for the borrowing or
lending of money (including loans to or from
officers, directors, partners, stockholders or
Affiliates of any Selling Party or any members of
their immediate families), agreements or arrangements
for a line of credit or for a guarantee of, or other
undertaking in connection with, the indebtedness of
any other Person;
(f) Any Contracts under which any Encumbrances exist
with respect to any Assets; and
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(g) Any other Contracts (other than Minor Contracts
and those described in any of (a) through (f) above)
not made in the ordinary course of business.
14.6.2 To any Seller's knowledge, none of the Group Companies
is in Default under any Contract, which Default could result
in a Liability on the part of any Group Company in excess of
(pound)25,000 in any individual case, and the aggregate
Liabilities that could result from all such Defaults do not
exceed (pound)50,000. No Group Company has received any
communication from, or given any communication to, any other
party indicating that any Group Company or such other party,
as the case may be, is in Default under any Contract where
such Default could have a material adverse effect.
4.17 INSURANCE. SCHEDULE 4.17 contain particulars of all policies or
binders of insurance held by or on behalf of any Group Company or
relating to the Business or any of its Assets, specifying with respect
to each policy the insurer, the amount of the coverage, the type of
insurance, the risks insured, the expiration date, the policy number
and any pending claims thereunder. To any Seller's knowledge, there is
no Default with respect to any such policy or binder, nor has there
been any failure to give any notice or present any claim under any such
policy or binder in a timely fashion or in the manner or detail
required by the policy or binder, except for any of the foregoing that
would not, individually or in the aggregate, have a material adverse
effect. There is no notice of non renewal or cancellation with respect
to, or disallowance of any claim under, any such policy or binder that
has been received by any Group Company, except for any of the foregoing
that would not, individually or in the aggregate, have a material
adverse effect.
4.18 PATENTS AND OTHER INTELLECTUAL PROPERTY.
(a) No Group Company currently uses or has used in the operation of its
Business (including in the development or marketing of products and
services) any patent, trademark, tradename, service ▇▇▇▇ or copyright
except for those listed on SCHEDULE 4.18(a). As used herein, the term
"Intellectual Property" means the items listed on SCHEDULE 4.18(a) and
the trade secrets and know-how that any Group Company uses or has used
in the operation of its Business. Each Group Company owns or has the
lawful right to use all Intellectual Property that is necessary for the
operation of its Business in the ordinary course. All of the
Intellectual Property listed on SCHEDULE 4.18(a) is owned by a Group
Company free and clear of any Encumbrances, or used pursuant to an
agreement that is described on SCHEDULE 4.18(a). To the knowledge of
any Seller, no Group Company infringes upon or unlawfully or wrongfully
uses any patent, trademark, tradename, service ▇▇▇▇, copyright or trade
secret owned or claimed by another
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24
Person. No Group Company is in Default, or has received notice of any
claim of infringement or any other claim or proceeding, with respect to
any such patent, trademark, tradename, service ▇▇▇▇ or copyright.
Except as specified on SCHEDULE 4.18(a), no current or former employee
of any Group Company and no other Person owns or has any proprietary,
financial or other interest, direct or indirect, in whole or in part,
including any right to royalties or other compensation, in any of the
Intellectual Property, or in any application therefor.
(b) SCHEDULE 4.18(b) identifies employees and consultants of each Group
Company who have executed a nondisclosure or assignment of inventions
agreements with respect to the confidentiality or ownership of the
Intellectual Property. To any Selling Party's knowledge, (i) none of
the Confidential Information has been used, divulged or appropriated
(A) for the benefit of any Person other than a Group Company or a
customer thereof or (B) otherwise to the detriment of any Group
Company, (ii) except as specified on SCHEDULE 4.18(b), none of the
employees or consultants of any Group Company who is involved in the
design, review, evaluation or development of Intellectual Property is
subject to any contractual or legal restrictions that might interfere
with the use of his best efforts to promote the interests of the
Company Group, and (iii) no employee or consultant of any Group Company
has used any Confidential Information of any other Person in the course
of his work for any Group Company.
4.19 EMPLOYEE RELATIONS. Except as described on SCHEDULE 4.19, none of
the Group Companies is (a) a party to, involved in or, to any Seller's
knowledge, threatened by, any employee dispute or unfair employee
practice charge, or (b) currently negotiating any collective bargaining
agreement, and none of the Group Companies has experienced any work
stoppage during the last three years. Schedule 4.19 and 4.20 comprises
a complete and correct list as at the date of the Agreement of the
names and salaries, bonus and other cash compensation of all employees
(including the directors and company secretary) of any Group Company.
4.20 EMPLOYEE BENEFIT PLANS.
(a) Save as provided in SCHEDULE 4.20 there are no Benefit
Plans sponsored or maintained by any Group Company, under
which any Group Company may be obligated, or to which any
Group Company has contributed. The summaries produced in
Schedule 4.20 are accurate and complete as at the date to
which they were made up and no Group Company will be required
to make any additional payment or contribution in respect of
such period. .
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(b) All Benefit Plans conform (and at all times have
conformed) in all material respects to, and are being
administered and operated (and have at all time been
administered and operated) in material compliance with, the
requirements of all applicable Regulations. All returns,
reports and disclosure statements required to be made with
respect to all Benefit Plans have been timely filed or
delivered.
(c) There are no pending or, to the knowledge of any Seller,
threatened claims by or on behalf of any Benefit Plans, or by
or on behalf of any individual participants or beneficiaries
of any Benefit Plans, alleging any breach of fiduciary duty on
the part of any Group Company or any of its officers,
directors or employees under any applicable Regulations, or
claiming benefit payments other than those made in the
ordinary operation of such plans, nor is there, to the
knowledge of any Seller, any basis for such claim. The Benefit
Plans are not the subject of any investigation, audit or
action pursuant to any Regulation.
(d) Each Group Company has made all required contributions
under the Benefit Plans including the payment of any insurance
premiums on a timely basis.
4.21 CORPORATE RECORDS. Except as stated in Schedule 4.21 the minute
books of each Group Company contain complete and accurate records of
all minutes of meetings, resolutions and other proceedings of its Board
of Directors and stockholders. The stock record book of each Group
Company is complete, correct and current.
4.22 ABSENCE OF CERTAIN CHANGES. Except as contemplated by this
Agreement or as specified in SCHEDULE 4.22, since the Balance Sheet
Date, each Group Company has conducted its Business in the ordinary
course and there has not been with respect to such Group Company:
(a) any material adverse change in its Business or
Liabilities;
(b) any distribution or payment declared or made in respect of
its capital stock by way of dividends, purchase or redemption
of shares or otherwise;
(c) any increase in the compensation payable or to become
payable to any director, officer, employee or agent, except
for increases for non-officer employees made in the ordinary
course of business, nor any other change in any employment or
consulting arrangement;
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(d) any sale, assignment or transfer of Assets, or any
additions to or transactions involving any Assets, other than
those made in the ordinary course of business;
(e) other than in the ordinary course of business, any waiver
or release of any claim or right or cancellation of any debt
held; or
(f) any payments to any associate of any Group Company.
4.23 PREVIOUS SALES; WARRANTIES. No Group Company has breached any ex
press or implied warranties in connection with the sale or distribution
of such goods, except for breaches that, individually and in the
aggregate, would not have a material adverse effect.
4.24 CUSTOMERS AND SUPPLIERS. Each Group Company has used its
reasonable business efforts to maintain and currently maintains, good
working relationships with all of its customers and suppliers. SCHEDULE
4.24 contains a list of the names of each of the ten customers that, in
the aggregate, for the year ended December 31, 1994, were the largest
dollar volume customers of products sold by each of the Subsidiaries.
Except as specified on SCHEDULE 4.24, none of such customers has given
any Group Company written notice terminating, canceling or threatening
to terminate or cancel any Contract or relationship with any Group
Company. SCHEDULE 4.24 also contains a list of the ten suppliers of
each of the Subsidiaries that, in the aggregate, for the year ended
December 31, 1994, were the largest dollar volume suppliers of supplies
used by those Subsidiaries. None of such suppliers has given any Group
Company notice terminating, canceling or threatening to terminate or
cancel any Contract or relationship with any Group Company.
4.25 FINDER'S FEES. No Person retained by any Seller is or will be
entitled to any commission or finder's or similar fee in connection
with the Transactions.
4.26 ACCURACY OF INFORMATION. No representation or warranty by any
Group Company in any Transaction Document, and no information contained
therein or in the Financial Statements, contains any untrue statement
of a material fact or omits to state any material fact necessary in
order to make the statements contained herein or therein not
misleading.
4.27 INVESTMENT INTENT. Each of the Sellers is acquiring the Pamarco
Stock solely for itself and not for other persons.
4.28 LIMITATIONS ON TRANSFER. Each of the Sellers acknowledges that the
Pamarco Stock has not been registered under the Securities Act of 1933,
as
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amended (the "Act"). Each of the Sellers is aware of the applicable
limitations under the Act and the Stockholders' Agreement upon the
subsequent sale or other disposition of the Pamarco Stock or any
interest therein. The Sellers further acknowledge that such shares of
Pamarco Stock cannot be transferred unless they are subsequently
registered under the Act and applicable state securities laws or the
Buyer receives an acceptable legal opinion that an exemption from such
registration is available.
4.29 NO PUBLIC MARKET. Each of the Sellers realizes that there is no
public market for the shares of Pamarco Stock, that no market may ever
develop for them, and that they have not been approved or disapproved
by the Securities and Exchange Commission or any similar commission or
authority of any state.
4.30 ACCESS TO INFORMATION. Each of the Sellers acknowledges that the
Buyer has provided it with adequate access to financial and other
information concerning the Buyer and the shares of Pamarco Stock as
requested, and that each of the Sellers has had the opportunity to ask
questions of and receive answers from the Buyer concerning the terms
and conditions of the purchase of such shares and to obtain therefrom
any additional information necessary to make an informed decision
regarding the investment in such shares.
4.31 EXPERIENCE. Each of the Sellers has such knowledge and experience
in financial and business matters that he is capable of evaluating the
merits and risks of the acquisition of the Pamarco Stock.
5. Representations and Warranties of the Buying Parties.
-----------------------------------------------------
The Buyer and Pamarco hereby jointly and severally warrant to the
Company and the Sellers and each of them severally as follows:
5.1 CORPORATE. Each of the Buying Parties is a corporation duly
organized, validly existing and in good standing under the laws under
which it was incorporated. Each of the Buying Parties is qualified to
do business as a foreign corporation in any jurisdiction where it is
required to be so qualified, except where the failure to so qualify
would not have a material adverse effect on its business, assets,
financial condition, results of operation or liquidity.
5.2 AUTHORIZATION. Each of the Buying Parties has the requisite power
and authority to execute and deliver the Transaction Documents to which
it is a party and to perform the Transactions to be performed by it.
Such execution, delivery and performance have been duly authorized by
all necessary corporate action, and such Transaction Documents
constitute valid and binding obligations of the Buyer and Pamarco,
enforceable against such party in accordance with their terms.
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5.3 CONSENTS AND APPROVALS. Neither the execution and delivery by
either of the Buying Parties of the Transaction Documents to which it
is a party, nor the performance of the Transactions either of the
Buying Parties, require any filing, consent or approval or constitute a
Default under (a) any Regulation or Court Order to which such Buying
Party is subject, (b) the Charter Documents or bylaws of such Buying
Party or (c) any Contract, Government Permit or other document to which
such Buying Party is a party or by which the properties or other assets
of the such Buying Party may be subject.
5.4 INVESTMENT INTENT. The Buyer is acquiring the Shares solely for
investment purposes, with no present intention of distributing or
reselling any of the Shares or any interest therein.
5.5 FINDER'S FEES. No Person retained by the Buying Parties is or will
be entitled to any commission or finder's or similar fee in connection
with the Transactions.
5.6 ACCURACY OF INFORMATION. No representation or warranty by either
Buying Party in any Transaction Document, and no information contained
therein or otherwise delivered to any Selling Party or in connection
with the Transactions, contains any untrue statement of a material fact
or omits to state any material fact necessary in order to make the
statements contained herein or therein not misleading.
5.7 PAMARCO SHARES. The Pamarco Shares shall be validly issued, fully
paid and non-assessable upon the consummation of the Transactions. The
total authorized capital stock of the Company consists of 1,600,000
shares of Common Stock, 1,238,820 of which are issued and outstanding
on the date hereof, and 100,000 shares of Preferred Stock, par value
$.01 per share, none of which are issued and outstanding on the date
hereof.
6. Conditions Precedent to Obligations of the Buying Parties.
----------------------------------------------------------
All obligations of the Buying Parties to consummate the Transactions
are subject to the satisfaction (or waiver by each Buying Party to which the
condition relates) prior thereto of each of the following conditions:
6.1 SATISFACTION OF DEBT. The Debt (including interest) shall have been
satisfied in full, and written evidence of such satisfaction shall have
been provided to the Buyer.
6.2 DELIVERY OF CERTIFICATES. The Sellers shall have tendered to the
Buyer, the certificates for the Shares.
-26-
29
6.3 ANCILLARY DOCUMENTS. All parties to the following agreements are
executing and delivering the following documents: the Escrow Agreement,
the Building Lease.
7. Conditions Precedent to Obligations of the Sellers.
---------------------------------------------------
All obligations of the Sellers to consummate the Transactions are
subject to the satisfaction (or waiver by each Selling Party to which the
condition relates) prior thereto of each of the following conditions:
7.1 DELIVERY OF PURCHASE PRICE. As contemplated by Section 3, the Buyer
shall have tendered to the Sellers the Purchase Price.
7.2 ANCILLARY DOCUMENTS. All parties to the following agreements shall
have executed and delivered the following agreements: the Escrow
Agreement, the Building Lease.
8. Competition and Confidentiality.
--------------------------------
8.1 NON-COMPETITION. For the purpose of assuring to the Buyer the full
benefit of the businesses and goodwill of the Group Companies, each of
the Sellers undertakes by way of further consideration for the
obligations of the Buyer under this Agreement as separate and
independent agreements that he or it will not:
8.1.1 for two years after the Closing Date either on his own
or its account or for any other person directly or indirectly
solicit, interfere with or endeavour to entice away from any
Group Company any person who to his or its knowledge is, or
has during the past year been, a client, customer of, or in
the habit of dealing with, any Group Company;
8.1.2 for two years after the Closing Date, either alone or
jointly with or as manager, agent for or employee of any
person, directly or indirectly carry on or be engaged
concerned or interested in the United Kingdom in any business
which carries on the same type of business as that carried on
by any Group Company as at the Closing Date including, without
limitation, the sale and manufacture of printing plates and
software to the printing industry.
8.1.3 for two years after the Closing Date either on his or
its own account, directly or indirectly solicit, interfere
with or endeavour to entice away from any Group Company any
person who is or, at the time when the matter falls for
consideration has been employed as an
-27-
30
employee by or as an agent or consultant of any Group Company
during the period of one year to such date.
8.2 CONFIDENTIAL INFORMATION. For an indefinite time after the Closing,
no Seller shall directly or indirectly divulge, communicate or use in
any way, any confidential information or trade secrets of the Business,
including personnel information, know-how and other technical
information, customer lists, customer information and supplier
information (the "Confidential Information") (and shall use all
reasonable endeavours to prevent any of their respective associates
from so doing) provided however that Information shall cease to be
Confidential Information to the extent that it is either within the
public domain at the date of this Agreement or becomes within it at any
later date howsoever the same may occur otherwise than by breach by the
Sellers or their associates of this undertaking.
8.3 For the avoidance of doubt, nothing in this Section 8 shall prevent
the Sellers or their associates from the bona fide carrying out their
duties, if any, as officers and employees of the Buyer or its
associates.
8.4 INJUNCTIVE RELIEF. In the event of any breach or threatened breach
by any Seller of any provision of this Section 8, the Buyer shall be
entitled to injunctive or other equitable relief, restraining such
party from using or disclosing any Confidential Information in whole or
in part, or from engaging in conduct that would constitute a breach of
the obligations of such party under this Section 8. Such relief shall
be in addition to and not in lieu of any other remedies that may be
available, including an action for the recovery of damages.
9. Limitations on Sellers' Liability and Claims Procedures.
--------------------------------------------------------
9.1 Notwithstanding any other provisions of this Agreement:
9.1.1 the aggregate liability of the Sellers in respect of the
Warranties and Tax Indemnity shall not exceed US$ 1 million and
the liability of each of the Sellers in respect of all claims
arising out of the Warranties and under the Tax Indemnity shall be
limited to US$500,00 (including, without limitation, any
properly incurred legal and other expenses of the Buyer in making
such claims);
9.1.2 the Buyer shall not be entitled to make any claim against
the Sellers or either of them in respect of the Warranties or
under the Tax Indemnity unless the amount of any liability in
respect of such claim (when aggregated with the amount of any
other liabilities in respect of such claims or with any amount
which would have given rise to a claim hereunder had not the limit
contained in this clause 9.1.2 applied to it)
-28-
31
then or previously made by the Buyer against the Sellers
exceeds (pound)25,000 in which event the Buyer shall be
entitled to bring a claim or claims against the Sellers for
the whole of the claims and not just for the excess thereof;
9.1.3 no claims may be brought by the Buyer in respect of any
breach of the Warranties or under the Tax Indemnity unless
notice in writing of the claim (specifying in reasonable
detail the matters or defaults which give rise to the claim
and estimates of the amount claimed) has been given to the
Sellers not later than the expiration of the appropriate
period. For the purposes of this clause, the "appropriate
period":
(a) in respect of a claim which could have been
brought by the Buyer or any of the Group Companies
under the Tax Indemnity is seven years from the
Balance Sheet Date;
(b) in respect of any other claim is two years from
the Closing Date.
9.1.4 the Buyer and/or the Company and/or any appropriate
Subsidiary and/or some other of the Buying Parties shall
reimburse to the Sellers an amount equal to so much of any sum
paid by the Sellers in relation to a claim arising out of the
Warranties as is subsequently recovered by or paid to the
Buyer or the Company or a Subsidiary or some other Buying
Party or any other person associated with the Company or the
Buyer by any third party in respect of such claim and in any
event within 30 days of such recovery or payment;
9.1.5 no claim shall be made against the Sellers in relation
to the Warranties in respect of any matter fully and fairly
disclosed as provided in Section 4;
9.1.6 any claim which may have been made against the Sellers
in relation to the Warranties or under the Tax Indemnity shall
(unless previously satisfied settled or withdrawn) be deemed
to have been withdrawn at the expiration of one year from the
date of notification to the Sellers in respect of the
Warranties and the expiration of two years from the date of
notification in respect of the Tax Indemnity unless legal
proceedings in respect thereof have been commenced against the
Sellers and for this purpose such legal proceedings shall not
be deemed to have been commenced unless they have been not
only issued but served;
9.1.7 any amount paid by any Seller in respect of the
Warranties or under the Tax Indemnity shall be deemed to
constitute a reduction in the
-29-
32
purchase consideration received by that Seller for the Shares
sold by it pursuant to this Agreement.
9.2 The Sellers shall not incur liability in relation to any of
the Warranties or (as the case may be) their liability shall be
reduced:-
9.2.1 to the extent that provision or reserve in respect of
any sum in question was specifically made in the Accounts; or
9.2.2 where the claim would not have arisen but for a
voluntary action or omission carried out (other than pursuant
to a legally binding commitment created before the Closing) by
the Company or a Subsidiary after the Closing and otherwise
than in the ordinary course of business if such act or
omission has been authorised by the Buyer; or
9.2.3 to the extent that the Company or a Subsidiary is
insured against the loss or damage suffered by it and receives
payment from the insurer in respect of such loss or damage and
the Buyer undertakes to procure that the Company or the
relevant Subsidiary submits a claim against such policy of
insurance in respect of such loss or damage; or
9.2.4 to the extent that the claim arises out of any change in
accounting policy or practice or any change in the date to
which accounts of the Buyer or the Company or a Subsidiary are
made up in any year introduced on or after the Closing save
where the Buyer is advised by the Company's Auditors from time
to time that such change in accounting policy or practice is
necessary to comply with SSAP; or
9.2.5 to the extent that the claim is based upon a liability
of the Company or a Subsidiary which is contingent and such
contingent liability does not become an actual liability and
is discharged.
9.3 In the event of any claim being made against the Sellers in
relation to the Warranties the Buyer shall use its reasonable
endeavours to mitigate its loss and shall consult with the Sellers as
to what action the Sellers may reasonably deem appropriate to avoid,
dispute, resist, appeal against, compromise or defend the claim or
matter giving rise to the potential liability of the Sellers thereunder
and shall provide the Sellers with all such information as the Sellers
may reasonably require (subject to the signing of any confidentiality
undertakings which the Buyer may reasonably require) to facilitate such
consultation.
9.4 Notwithstanding the provisions of clause 9.3 hereof:
-30-
33
9.4.1 The Buyer shall in particular take or procure to be
taken appropriate steps in relation to any matter which gives
or may give rise to a claim in relation to any of the
Warranties and which is or may be covered under any policy of
insurance now or hereafter maintained by the Company or a
Subsidiary including making a claim on the insurers under such
policy;
9.4.2 If any claim is received by or any properly
substantiated matter or circumstance comes to the attention of
the Buyer which reasonably appears to establish or evidence a
breach of any of the Warranties and for which the Sellers may
be liable under the Warranties the Buyer shall:
9.4.2.1 as soon as reasonably practicable give
written notice and full details thereof to the
Sellers;
9.4.2.2 give the Sellers' professional advisers
reasonable access on reasonable notice to the
premises and the personnel of the Buyer and/or the
Company or any Subsidiary (as the case may be) to
examine any relevant chattels, accounts, documents
and records within the possession or control of the
Buyer and/or the Company or Subsidiary provided that
the Sellers shall and shall procure that their
professional advisers shall keep confidential all
matters so examined.
9.4.3 The Buyer shall permit the Sellers to take such action
on behalf of (and in the name of) the Company or any
Subsidiary (with such advisers as the Sellers may nominate) as
the Sellers may reasonably request to avoid, dispute, resist,
appeal, compromise or defend any matter which might otherwise
result in a claim by the Buyer in relation to the Warranties
provided that the Sellers shall (if so requested by the Buyer)
first have indemnified and secured the Buyer the Company or
the Subsidiary (as the circumstances may require) in a form
reasonably acceptable to the Buyer from an against any losses,
damages, claims and expenses incurred by it or any of them as
a result thereof.
9.4.4 WITHHOLDING TAX AND GROSSING UP. All sums payable by the
Sellers under this Agreement shall be paid free and clear of
all deduction or withholdings unless the deduction or
withholding is required by law, in which event the Sellers
shall pay such additional amount as shall be required to
ensure that the net amount received by the payee hereunder
will equal the full amount which would have been received had
no such deduction or withholding been required to be made. If
any tax authority brings into charge to tax any sum paid by
the Sellers hereunder, then the Sellers shall pay such
additional amount as shall be required to ensure
-31-
34
that the total amount paid, less the tax chargeable on such
amount, is equal to the amount that would otherwise be payable
hereunder.
9.4.5 The Buyer shall not be entitled to recover both under
the Warranties and the Tax Indemnity in respect of the same
subject matter, but, for the avoidance of doubt the Buyer
shall be entitled to choose whether to recover under the
Warranties or the Tax Indemnity.
10. Entire Agreement
----------------
This Agreement, together with the other Transaction Documents, sets
forth the entire understanding of the parties hereto with respect to the
Transactions and supersedes all prior agreements or understandings among the
parties regarding those matters. None of the parties hereto is making any
representations or warranties to another party except to the extent that the
Sellers have made representations and warranties in Section 4 and except to the
except that the Buyer has made representations and warranties in Section 5.
11. Amendment, Parties in Interest, Assignment, Etc.
------------------------------------------------
This Agreement may be amended, modified or supplemented only by a
written instrument duly executed by each of the parties hereto. If any provision
of this Agreement shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision hereof, and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein. This Agreement shall be binding upon and inure to the benefit
of and be enforceable by the respective heirs, legal representatives, successors
and permitted assigns of the parties hereto. No party hereto shall assign this
Agreement or any right, benefit or obligation hereunder save that the Buyer
and/or Pamarco shall be entitled to assign any of their rights or benefits
hereunder to any holding or subsidiary company or to such company's bankers in
connection with any financing arrangement. Any term or provision of this
Agreement may be waived at any time by the party entitled to the benefit thereof
by a written instrument duly executed by such party. The parties hereto shall
execute and deliver any and all documents and take any and all other actions
that may be deemed reasonably necessary by their respective counsel to complete
the Transactions. Any liability to the Buyer under this Agreement may be
released, compounded or comprised in whole or in part by the Buyer or Pamarco
without in any way prejudicing or affecting their rights against any of the
Sellers or any other liability of the Seller in question.
-32-
35
12. Post Closing Obligations
------------------------
12.1 Each of the Sellers shall, after Closing, execute and do or cause
to be executed and done all such deeds, documents, acts and things as
may be required to give effect the Transaction Documents, including,
without limitation, vesting the full benefit of the Shares in the
Buyer.
13. Notices.
--------
All notices that are required or permitted hereunder shall be in
writing and shall be sufficient if personally delivered or sent by mail,
facsimile message or Federal Express or other delivery service. Any notices
shall be deemed given upon the earlier of the date when received at, or the
third day after the date when sent by registered or certified mail or the day
after the date when sent by Federal Express to, the address or fax number set
forth below, unless such address or fax number is changed by notice to the other
party hereto:
If to the Buyer or Pamarco:
Pamarco Technologies Inc.
c/o Bradford Ventures Limited
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
FAX: (UK) ▇▇▇ ▇▇▇ ▇▇▇▇
If to a Seller to their respective addressed set out in
Schedule 1,
with a copy to:
-33-
36
Davies ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇-▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
FAX: (UK) ▇▇▇ ▇▇▇ ▇▇▇▇
14. Governing Law.
--------------
This Agreement shall be construed and interpreted in accordance with
the laws of England.
15. Counterparts.
-------------
This Agreement may be executed in two or more counterparts, each of
which shall be binding as of the date first written above, and all of which
shall constitute one and the same instrument. Each such copy shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such counterpart.
-34-
37
IN WITNESS WHEREOF, this Agreement has been executed by the undersigned
parties as of the day and year first written above.
By:
---------------------------------
Title: Director
for and on behalf of
PAMARCO EUROPE LIMITED
In the presence of:
Witness Signature
Witness name:
Witness address:
By:
---------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
In the presence of:
Witness Signature
Witness name:
Witness address:
By:
---------------------------------
Title: Director
for and on behalf of
GREENBAY LIMITED
In the presence of:
Witness Signature
Witness name:
Witness address:
-35-
38
By:
---------------------------------
Title: (duly authorised
representative) for and on behalf of
PAMARCO TECHNOLOGIES, INC.
In the presence of:
Witness Signature
Witness name:
Witness address:
-36-
39
SCHEDULE 1
THE SELLERS
--------------------------------------------------------------------------------
Name No. of Shares
--------------------------------------------------------------------------------
1. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ 5,100
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
2. Greenbay Limited 5,100
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇
------
10,200
------
-37-
40
SCHEDULE 2
PART 1
THE COMPANY
Name: QUALTECH HOLDINGS LIMITED (formerly
Landgable Ltd name changed 20 November 1992)
Registration No: 2684884
Date of Incorporation: 6th February 1992
Authorised share capital: (pound)100,000 divided into 100,000 ordinary
shares of (pound)1 each.
Issued share capital: (pound)10,200 divided into 10,200 ordinary
shares of(pound)1 each. 5100 with ▇▇ ▇▇▇▇ and
5100 with Greenbay Ltd.
Directors: ▇ ▇ ▇▇▇▇▇▇▇, M A ▇▇▇▇▇▇▇, ▇ ▇ Ford and ▇ ▇
▇▇▇▇
Secretary: ▇ ▇ ▇▇▇▇
Auditors: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Registered Office: ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Accounting Reference Date: 31 December
Bankers: Barclays Bank PLC
Debentures/Mortgages/Charges: Guarantee and Debenture registered 5 April
1994 dated 22 March 1994 securing all monies
due or to become due from the Company and/or
Incorporated Flexographic Supplies Ltd and/or
Flexographic Services Ltd to the chargee on
any
-38-
41
account whatsoever by fixed and floating
charges over the undertaking and all property
and assets present and future including
goodwill, book debts, uncalled capital,
building, fixtures, fixed plant and machinery.
The Chargee is Barclays Bank PLC
Legal Charge registered 13 April 1994 and
dated 25 March 1994 for all monies due or to
become due from the company to the Chargee on
any account whatsoever secured against land
East Side of Dallam Lane, Warrington, Cheshire
(Title Number CH345895). The Chargee is
Barclays Bank PLC
Legal Charge registered 13 March 1994 and
dated 31 March 1994 for all monies due or to
become due from the company to the Chargee on
any account whatsoever against land on ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
(Title numbers CH 324005 and CH 325395). The
Chargee is Barclays Bank PLC.
Subsidiaries: Incorporated Flexographic Supplies Ltd and
Flexographic Services Ltd
-39-
42
SCHEDULE 2
PART II
THE SUBSIDIARIES
1. Name: INCORPORATED FLEXOGRAPHIC SUPPLIES LIMITED
Registration No: 993660
Date of Incorporation: 6th November 1970
Authorized share capital: (pound)100,000 divided into 100,000 ordinary
shares of (pound)1 each.
Issued share capital: [(pound)36,000 divided into 36,000 ordinary
shares of (pound)1 each. 36,000 held by
Qualtech Holdings Ltd.]
Directors: ▇ ▇ ▇▇▇▇▇▇▇ and ▇ ▇▇▇▇▇▇▇
Secretary: P ▇▇▇▇▇▇▇▇
Auditors: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Registered Office: ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Accounting Reference Date: 31 December
Bankers: Barclays Bank PLC
Debentures/Mortgages/Charges: Guarantee and Debenture registered 19 February
1985 and dated 5 February 1985. All monies due
or to become due from the company to the
chargee on any account whatsoever secured by
fixed and floating charges over the
undertaking and all property assets present
and future including uncalled capital,
machinery, fixtures and fittings and fixed
plant in favour of Barclays Bank PLC.
-40-
43
Debenture registered 12 June 1992 dated 6 June
1992 securing all monies due or to become due
from the company to the chargee on any account
whatsoever secured by fixed and floating
charges over the undertaking and all property
and assets present and future including
goodwill, book debts, uncalled capital,
buildings, fixtures, fixed plant and machinery
in favour of Barclays Bank PLC.
Memorandum of Full Satisfaction dated 21
[September 1992].
Guarantee and Debenture registered 5 April
1994 dated 22 March 1994 securing all monies
due or to become due from the Company and/or
Qualtech Holdings Ltd to the chargee on any
account whatsoever by fixed and floating
charges over the undertaking and all property
and assets, goodwill, book debts, uncalled
capital, buildings, fixtures, fixed plant and
machinery of the chargors in favour of
Barclays Bank PLC.
Subsidiaries: None
-41-
44
2. Name: FLEXOGRAPHIC SERVICES LIMITED
(formerly Galering Ltd name changed on 23 June
1984)
Registration No: 1813731
Date of Incorporation: 4 May 1984
Authorised share capital: (pound)50,000 divided into 50,000 ordinary
shares of(pound)1 each.
Issued share capital: (pound)10,000 divided into 10,000 ordinary
shares of(pound)1 each held by Qualtech
Holdings Ltd.
Directors: K G Cleminson, M A Ford, ▇ ▇ ▇▇▇▇, ▇ ▇ ▇▇▇▇
and E G ▇▇▇▇▇▇
Secretary: P ▇▇▇▇▇▇▇▇
Auditors: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Registered Office: ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Accounting Reference Date: 31 December
Bankers: Barclays Bank PLC
Debentures/Mortgages/Charges: Charge registered 22 August 1984 dated 16
August 1984 securing all monies due or to
become due from the Company to the chargee on
any account whatsoever by fixed and floating
charges over the undertaking and all property,
assets present and future including goodwill,
book debts, uncalled capital, buildings,
fixtures, fixed plant and machinery of the
chargors in favour of Barclays Bank PLC.
Legal Charge registered 5 April 1987 dated 2
April 1986 against premises at ▇▇▇▇▇▇▇ ▇▇▇▇,
-▇▇-
45
Elmwood Avenue, Oakwood Avenue and Gorsey
Lane, Warrington (title number LA 346860) in
favour of Barclays Bank PLC.
Guarantee and Debenture registered 27 April
1987 dated 13 April 1987 securing all monies
due or to become due from the Company and/or
Fastforme Services Ltd to the chargee on any
account whatsoever and/or Fastforme Services
Ltd by way of fixed and floating charges over
the undertaking and property and assets
present and future including goodwill, book
debts, uncalled capital, buildings, fixtures,
fixed plant and machinery in favour of
Barclays Bank PLC.
Guarantee and Debenture registered 5 April
1994 dated 22 March 1994 securing all monies
due or to become due from the Company and/or
Qualtech Holdings Ltd to the chargee on any
account whatsoever by fixed and floating
charges over the undertaking and all property
and assets present and future including
goodwill, book debts, uncalled capital,
buildings, fixtures, fixed plant and machinery
in favour of Barclays Bank PLC.
Subsidiaries: None
3. NAME: FASTFORME SERVICES LIMITED (formerly
known as Ultrarealm Limited).
COMPANY NO.: 2062797
DATE OF INCORPORATION: 9th October, 1986
AUTHORISED ISSUED
SHARE CAPITAL: (pound)1,000 divided into 1,000 Ordinary
Shares of (pound)1 each, all issued to
Flexographic Supplies Limited.
DIRECTORS: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
SECRETARY: ▇▇▇▇ ▇▇▇▇▇▇▇▇.
REGISTERED OFFICE: ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
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