Page III
CONFORMED COPY
Dated 30 April 1998
HOECHST AG
ALPHARMA (U.K.) LIMITED
ALPHARMA INC.
AGREEMENT
for the sale and purchase of the
issued share capital of ▇▇▇
Investments Limited
CONTENTS
Clause Page
1. 1. Definitions And Interpretation 4
2. Sale of the Shares and Consideration 10
3. Completion 11
4. Net Asset Statement and Net Asset Adjustment 16
5. Restrictions on Vendor 19
6. Warranties 21
7. Limitations On Claims 21
8. Provisions relating to the use of the Cox Name 30
9. Alpharma Guarantee, Vendor Indemnity and Confirmation
31
10. Product Liability 32
11. Entire agreement 33
12. Variation 34
13. Assignment 34
14. Announcements 34
15. Costs 35
16. Invalidity 35
17. Counterparts and Further Assurance 35
18. Notices 35
19. Governing Law And Jurisdiction 36
SCHEDULE 1 38
The Company And The Subsidiary 38
SCHEDULE 2 42
Part A Warranties 42
Part B Tax Warranties 53
SCHEDULE 3
Properties 57
SCHEDULE 4 59
Specific Accounting Policies and Procedures to be used in
preparing the Net Asset Statement 59
SCHEDULE 5 60
Tax Covenant 60
ANNEXURES 79
ANNEX A 79
Transfer Agreement for NorCox Pharma AB 79
ANNEX B 86
Transfer Agreement for NorCox Pharma AS 86
ANNEX C 93
Transfer Agreement for ▇▇▇ Pharma Belgium N.V. 93
ANNEX D 13
Transfer Agreement for NedCox Pharma B.V. 13
THIS SALE AND PURCHASE AGREEMENT is made on 30 April 1998
Between:
HOECHST AKTIENGESELLSCHAFT a company incorporated in and
under the laws of Germany with legal domicile at ▇-▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ and registered at the Commercial
Register of the local court Frankfurt am Main Abteilung B,
under registered number 14500 (the Vendor);
ALPHARMA (U.K.) LIMITED (registered no. 3557686) a company
incorporated in and under the laws of England and Wales
whose registered office is at ▇▇▇▇▇▇▇ Valley, Barnstaple,
Devon EX32 8NS, England (the Purchaser); and
ALPHARMA INC. a company incorporated in and under the laws
of Delaware whose principal place of business is at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ (Alpharma).
Whereas:
(A) ▇▇▇ Investments Limited (the Company) is a private
company limited by shares incorporated in England and Wales
on 6 June 1997 with registered number 3382754. Further
details of the Company are set out in Part I of Schedule 1.
(B) The Vendor has agreed to sell to the Purchaser for the
consideration set out in clause 2.2 of this Agreement, all
of the issued shares in the capital of the Company upon the
terms and subject to the conditions set out in this
Agreement, together with all the issued share capital in
each of NorCox Pharma AB, NorCox Pharma AS, ▇▇▇ Pharma
Belgium N.V. and NedCox Pharma B.V. (the Overseas Companies)
upon the terms and subject to the conditions set out in the
Transfer Agreements attached as Annexes A to D.
It Is Agreed as follows:
Definitions And Interpretation
1.1 In this Agreement, except so far as the context
otherwise requires, the following terms shall have the
following meanings:
the Accounts means in relation to either member of the ▇▇▇
Group:
(a) the audited balance sheet of the relevant company as at
the Accounts Date; and
(b) the audited profit and loss account of the relevant
company in respect of the period ending on the Accounts
Date,
together with any notes, reports, statements or documents
permitted or required by the Companies ▇▇▇ ▇▇▇▇ to be made
thereon or annexed or attached thereto;
the Accounts Date means 31 December 1997;
Business Day means a day (excluding Saturdays) on which
banks generally are open in London for the transaction of
normal banking business;
Cash means the aggregate of all amounts under the heading
"Cash at bank and in hand", as shown in the Accounts of the
Subsidiary;
the Company has the meaning given in Recital (A);
Completion means completion of the sale and purchase of the
Shares in accordance with clause 3;
the Completion Date means the date on which Completion
occurs pursuant to clause 3;
Controlling Interest means (i) the ownership or control
(directly or indirectly) of more than fifty per cent (50%)
of the voting share capital of the relevant undertaking; or
(ii) the ability to direct the casting of more than fifty
per cent (50%) of the votes exercisable at general meetings
of the relevant undertaking on all, or substantially all,
matters; or (iii) the right to appoint or remove directors
of the relevant undertaking holding a majority of the voting
rights at meetings of the board on all, or substantially
all, matters;
Coopers & ▇▇▇▇▇▇▇ means Coopers & ▇▇▇▇▇▇▇ of ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇;
the Cox Group means the Company and the Subsidiary;
Cox Group Company means either the Company or the
Subsidiary;
Debt means all amounts under the heading "Loans and
Overdrafts", as shown in the Accounts of the Subsidiary,
including, for the avoidance of doubt, any Intra-Group
Indebtedness;
the Disclosure Letter means the letter of even date
herewith, in the form of the agreed draft, together with the
documents listed in the index attached thereto;
Generics or Generic Products mean formulated pharmaceutical
products made available for sale by the patent owner prior
to expiry of the patent thereon or by any other party after
expiry of the patent, having first obtained a marketing
authorisation in respect thereof;
holding company shall be construed in accordance with
sections 736 and 736A of the Companies ▇▇▇ ▇▇▇▇;
Intellectual Property Warranty means the warranty set out in
paragraph 16 of Part A of Schedule 2;
Intra-Group Guarantees means all guarantees, indemnities,
counter-indemnities and letters of comfort of any nature
whatsoever:
(a) given to any third party by any Cox Group Company in
respect of a liability of any member of the Vendor's
Group; and/or (as the context may require)
(b) given to any third party by any member of the Vendor's
Group in respect of a liability of any Cox Group
Company;
Intra-Group Indebtedness means all debts outstanding between
members of the ▇▇▇ Group and members of the Vendor's Group
(other than Intra-Group Trading Indebtedness);
Intra-Group Trading Indebtedness means all debts outstanding
between members of the ▇▇▇ Group and members of the Vendor's
Group in respect of intra-group trading activities in the
ordinary and usual course of business;
Midland Bank Facility means the overdraft facility provided
to, inter alia, the Subsidiary by Midland Bank plc;
Midland Bank Guarantee means the guarantee dated 28 November
1996 in respect of indebtedness of, inter alia, the
Subsidiary with Midland Bank plc;
Net Assets means the aggregate of all amounts under the
headings "Fixed Assets" and "Current assets" less the
aggregate of all amounts under the headings "Provision for
Liabilities & Charges" and "Creditors", as shown in the
Accounts of the Subsidiary or in the Net Asset Statement, as
applicable;
Net Asset Statement means the statement of Net Assets as at
the close of business on Completion, to be prepared in
accordance with clause 4 and Schedule 4;
Non-Trading Companies means ▇▇▇▇▇▇ ▇▇▇▇▇ Limited, Co-Tabs
(Overseas) Limited, Dr Mackenzies Laboratories Limited and
Cox Continental Limited;
the Overseas Shares means the shares to be transferred from
the Vendor to the Purchaser pursuant to the Transfer
Agreements;
Overseas Warranties means the warranties on the part of the
Vendor set out in the schedule to the Transfer Agreements;
Ownership Warranties means the warranties set out in
paragraphs 2, 3, 4, 9(c) and 12(c) of Part A of Schedule 2;
the Properties means any or all (or any part or parts) of
the freehold and leasehold properties particulars of which
are set out in Schedule 3;
Purchaser's Accountants means Deloitte & Touche or such
other internationally recognised firm of chartered
accountants as the Purchaser may notify to the Vendor in
writing;
Purchaser's Group means the Purchaser, any subsidiary of the
Purchaser, any holding company of the Purchaser and any
subsidiary of such holding company from time to time;
Relevant Claim means any claim in respect of any breach of a
Warranty or any claim under any indemnity given or
obligation assumed by the Vendor under this Agreement (other
than claims with respect to the Vendor's obligations under
Clauses 2.4 and 4), the Tax Covenant or any of the Transfer
Agreements or any claim by the Purchaser (or any member of
the Purchaser's Group) pursuant to this Agreement, the Tax
Covenant or any of the Transfer Agreements;
the Schedules means Schedules 1 to 5 to this Agreement and
Schedule shall be construed accordingly;
the Shares means all of the issued shares in the capital of
the Company;
the Subsidiary means ▇▇▇▇▇▇ ▇. ▇▇▇ & Co., Limited, further
details of which are set out in Part II of Schedule 1;
subsidiary and subsidiaries shall be construed in accordance
with sections 736 and 736A of the Companies ▇▇▇ ▇▇▇▇;
Swindon Site means the factory operated by Hoechst ▇▇▇▇▇▇
▇▇▇▇▇▇▇ located at ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇;
subsidiary undertaking shall be construed in accordance with
section 258 of the Companies ▇▇▇ ▇▇▇▇;
the Tax Covenant means the covenant set out in Schedule 5;
the Taxes Act means the Income and Corporation Taxes ▇▇▇
▇▇▇▇;
the Tax Provision Warranty means the warranty set out in
paragraph 2.1 of Part B of Schedule 2;
the Tax Warranties means the warranties on the part of the
Vendor set out in Part B of Schedule 2;
Trade ▇▇▇▇ Assignment means the trade ▇▇▇▇ assignment in the
agreed form to be entered into between the Vendor and the
Purchaser (or such other member of the Purchaser's Group as
the Purchaser shall nominate) which assigns all rights of
the Vendor in the Cox name anywhere in the world;
the Transfer Agreements means each of the four transfer
agreements to be entered into between the Vendor and
Purchaser substantially in the form attached as Annexes A to
D to this Agreement relating to the transfer from the Vendor
to the Purchaser of the Overseas Companies;
Transfer Pricing Warranty means the warranty set out in
paragraph 8 of part B of Schedule 2;
undertaking shall be construed in accordance with
section 259 of the Companies ▇▇▇ ▇▇▇▇;
Vendor's Group means the Vendor, any subsidiary of the
Vendor, any holding company of the Vendor and any subsidiary
of such holding company from time to time;
Vendor's Solicitors means Freshfields, Whitefriars, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
the Warranties means the warranties on the part of the
Vendor set out in Schedule 2 together with the Overseas
Warranties, and Warranty shall be construed accordingly.
1.2 In this Agreement, unless the context otherwise
requires:
(a) words denoting any gender shall include all genders;
(b) words denoting the singular shall include the plural
and vice versa;
(c) references to persons or undertakings shall include
individuals, bodies corporate (wherever incorporated),
unincorporated associations, partnerships and other
unincorporated bodies (in each case, wherever resident
and for whatever purpose);
(d) the headings are inserted for convenience only and
shall not affect the construction of this Agreement;
(e) references to Recitals, clauses and Schedules and
sub-divisions thereof are to the Recitals and clauses
of and Schedules to this Agreement and sub-divisions
thereof respectively;
(f) any reference to an enactment is a reference to it as
from time to time amended, consolidated or re-enacted
(with or without modification) and includes all
instruments or orders made thereunder;
(g) any reference to a document "in the form of the agreed
draft" is to the form of the relevant document agreed
between the parties and for the purpose of
identification initialled by each of them or on their
behalf;
(h) any statement qualified by the expression "so far as
the Vendor is aware" or any similar expression shall be
deemed to include an additional statement that the
statement has been made after reasonable enquiry of the
directors of the Subsidiary.
1.3 The Recitals and Schedules hereto form part of this
Agreement and shall have the same force and effect as if
expressly set out in the body of this Agreement.
Accordingly, any reference to "this Agreement" shall include
the Recitals and Schedules hereto.
1.4 The Disclosure Letter has such contractual effect as is
expressly provided herein (or therein) but does not form
part of this Agreement.
Sale of the Shares and Consideration
2.1 The Vendor hereby agrees to sell and transfer (or
procure to be transferred) with full title guarantee and the
Purchaser hereby agrees to purchase the Shares as at and
with effect from Completion, free from all charges, liens,
encumbrances, equities, claims or other third party rights
(including, without limitation, rights of pre-emption) of
any nature whatsoever, together with all rights which now
are, or at any time hereafter may become, attached to them
(including, without limitation, the right to receive all
dividends and other distributions declared, made or paid on
or after Completion).
2.2 The consideration for the sale of the Shares and for
the transfer of the Overseas Shares (the Purchase Price)
shall be the aggregate of:
(a) the Preliminary Purchase Price (as defined in clause
2.3); and
(b) an amount equal to the Net Assets, as stated in the Net
Asset Statement, less BP13,662,000.
2.3 The preliminary purchase price (the Preliminary
Purchase Price) to be paid by the Purchaser to the Vendor in
cash at Completion shall be BP114,848,000.
2.4 If, following the determination of the Net Asset
Statement pursuant to clause 4:
(a) the Purchase Price is higher than the Preliminary
Purchase Price, the Purchaser shall pay to the Vendor
an amount equal to the amount by which the Purchase
Price exceeds the Preliminary Purchase Price; or
(b) the Preliminary Purchase Price is higher than the
Purchase Price, the Vendor shall pay to the Purchaser
an amount equal to the amount by which the Preliminary
Purchase Price exceeds the Purchase Price.
2.5 Any such amount to be paid by either the Purchaser or
the Vendor pursuant to clause 2.4 shall be paid within seven
Business Days of the determination of the Net Asset
Statement pursuant to clause 4.
2.6 If any payment is made by the Vendor to the Purchaser
pursuant to a claim made by the Purchaser for any breach of
this Agreement (including, without limitation, any Relevant
Claim), the payment shall so far as possible be made by way
of reduction of the consideration paid for the Shares and
that consideration shall accordingly be deemed to have been
reduced by the amount of such payment.
Completion
3.1 The sale and purchase of the Shares shall be completed
at the offices of the Vendor's Solicitors or at such other
venue as may be agreed in writing between the Vendor and the
Purchaser, at 10.00am on Thursday 7 May 1998 or at such
other time and/or date as may be agreed in writing between
the Vendor and the Purchaser when the events set out in the
following provisions of this clause 3 shall take place.
3.2 The Vendor shall deliver or cause to be delivered to
the Purchaser:
(a) duly executed transfers into the name of the Purchaser
or its nominee in respect of the Shares, together with
the relative share certificates;
(b) share certificates in respect of all of the issued
shares in the capital of the Subsidiary;
(c) the Certificates of Incorporation, the Common Seals,
all minute books, Share Registers and Share Certificate
Books (with any unissued share certificates) and other
statutory books of each Cox Group Company;
(d) directions, in the form of the agreed draft, varying
and/or replacing the mandates given to the bankers of
each Cox Group Company;
(e) evidence reasonably satisfactory to the Purchaser that
the Vendor is authorised to execute and perform its
obligations under this Agreement and each of the other
documents to be executed by the Vendor pursuant hereto;
(f) duly executed counterparts of the Transfer Agreements
and the Trade ▇▇▇▇ Assignment; and
(g) evidence reasonably satisfactory to the Purchaser that
the Vendor has complied with its obligation pursuant to
Clause 3.10.
3.3 The Purchaser shall:
(a) in satisfaction of its obligations under clause 2.3,
cause the Preliminary Purchase Price to be paid by
electronic funds transfer to the Vendor's bank account
at Deutsche Bank AG, London Branch, Account No: 203363;
(b) deliver to the Vendor evidence reasonably satisfactory
to the Vendor that the Purchaser and Alpharma are each
authorised to execute and perform their respective
obligations under this Agreement and each of the other
documents to be executed by the Purchaser and/or
Alpharma, as applicable, pursuant hereto; and
(c) deliver to the Vendor duly executed counterparts of the
Transfer Agreements and the Trade ▇▇▇▇ Assignment.
3.4 The Vendor shall procure that a meeting of the
directors of the Company is held at which the following
business is transacted:
(a) the directors of the Company shall approve for
registration (subject to being duly stamped) the
transfers referred to in clause 3.2(a);
(b) ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ shall resign as
directors of the Company and shall sign as a deed a
letter in the form of the agreed draft and ▇▇▇▇▇▇ ▇
▇▇▇▇ and ▇▇▇▇ - ▇▇▇ Carlsson shall be appointed as
directors of the Company, in each case, with effect
from Completion;
(c) ▇▇▇▇▇ ▇▇▇▇▇▇ shall resign as secretary of the Company
and shall sign as a deed a letter in the form of the
agreed draft and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ shall be appointed
as secretary of the Company.
3.5 The Vendor shall procure that a meeting of the
directors of the Subsidiary is held at which Dr ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ shall resign as a director of the Subsidiary and shall
sign as a deed a letter in the form of the agreed draft and
▇▇▇▇▇▇ ▇ ▇▇▇▇ and ▇▇▇▇-▇▇▇ Carlsson shall be appointed as a
director of the Subsidiary, in each case, with effect from
Completion.
3.6 The Tax Covenant shall come into full force and effect.
3.7 [Deliberately omitted].
3.8 Following Completion, the Vendor undertakes to the
Purchaser to use all reasonable endeavours to obtain the
release of each Cox Group Company from any Intra-Group
Guarantees (including, without limitation, the Midland Bank
Guarantee, subject always to the members of the Purchaser's
Group and the ▇▇▇ Group Companies having complied with all
their obligations thereunder and carried out all actions
which they are required to carry out (including repayment of
all amounts outstanding under the Midland Bank Facility) to
enable the Vendor to obtain the release thereof) to which it
is a party and, pending such release, to indemnify the
relevant Cox Group Company against all amounts paid by it to
any third party pursuant to any such Intra-Group Guarantee
in respect of any liability of any member of the Vendor's
Group whether arising before or after Completion.
3.9 Following Completion, the Purchaser undertakes to the
Vendor to use all reasonable endeavours to obtain the
release of each member of the Vendor's Group from any
Intra-Group Guarantees to which it is a party and, pending
such release, to indemnify the relevant member of the
Vendor's Group against all amounts paid by it to any third
party pursuant to any Intra-Group Guarantees in respect of
any liability of any Cox Group Company whether arising
before or after Completion.
3.10 The Vendor hereby undertakes to waive, prior to
Completion, the dividend of BP3,000,000 declared by the
Company to it in respect of the financial year ended 31
December 1997 and to procure the waiver, prior to
Completion, of the dividend of BP3,000,000 declared by the
Subsidiary in favour of the Company in respect of such
financial year.
3.11.1 Pending Completion, the Vendor shall ensure that:
(a) other than as required to fulfil the Vendor's
obligations pursuant to Clause 3.10 each Cox Group
Company shall carry on its business in the ordinary and
usual course and shall not make (or agree to make) any
payment other than routine payments in the ordinary and
usual course of trading;
(b) no dividend or other distribution (within the meaning
of section 209 of the Taxes Act) shall be declared,
paid or made by any Cox Group Company;
(c) no share or loan capital shall be allotted or issued or
agreed to be allotted or issued by any Cox Group
Company;
(d) no variation is made to any existing contract between
either Cox Group Company and any member of the Vendor's
Group and no such contract is entered into; and
(e) no Cox Group Company resolves to change its name or to
alter its Memorandum or Articles of Association.
3.11.2 Pending Completion, the Vendor shall use
reasonable endeavours to ensure that the Purchaser is given
reasonable supervised access to ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ and is provided with any information which the
Purchaser reasonably requests.
3.12 The Purchaser shall procure that, as soon as possible
following Completion, offers of employment are made to ▇▇.
▇▇▇ ▇▇▇, Mlle Kalija Badli and Mlle ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ on
terms no less favourable than those currently enjoyed by
such persons, including with regard to length of service.
3.13 In the event that ▇▇▇▇▇ ▇▇▇▇▇▇▇ is made redundant
following Completion the parties hereby agree that the costs
of any such redundancy (if any) shall be borne equally by
the parties and the Purchaser hereby undertakes to pay the
amount due from it to the Purchaser pursuant to this Clause
3.13 within seven (7) days of the Vendor delivering to the
Purchaser a written request therefor.
3.14 The Vendor undertakes to the Purchaser after
Completion:
(i) in the event that any member of the Vendor's Group or
their past or present advisers discovers any material
(including copy material) relating to the statutory
books and records or corporate good standing of the Non-
Trading Companies, to procure that such member delivers
such material to the Purchaser or as it may direct in a
timely manner; and
(ii) to use its reasonable endeavours to procure that, at
the reasonable request of, and at the cost of, the
Purchaser, any relevant member of the Vendor's Group or
employee thereof shall take such action, execute such
documents and provide such information as they are
capable of taking, executing or providing in order to
assist the Purchaser or the Subsidiary in
reconstituting the statutory books and records of the
Non-Trading Companies, securing the corporate good
standing of the Non-Trading Companies or in arranging
for the Non-Trading Companies to be struck off by the
Registrar of Companies.
3.15 Prior to Completion, the Vendor undertakes to procure
that the relevant member of the Vendor's Group will confirm
in writing that it will not exercise any right of
termination under the contracts set out in Clause 3.16 which
it may have as a result of the acquisition of the Shares by
the Purchaser.
3.16 The contracts referred to in Clause 3 are as follows:
(i) the contract relating to the distribution of
Aspav between the Subsidiary and the relevant
member of the Vendor's Group;
(ii) the contract relating to the distribution of
Cyclogest between the Subsidiary and the relevant
member of the Vendor's Group; and
(iii) the contract relating to packing, at the
Swindon Site, between the Subsidiary and the
relevant member of the Vendor's Group (the
Packaging Contract).
3.17 The Vendor hereby confirms that the initial term of the
Packaging Contract will not, otherwise than in circumstances
where such Contract is duly terminated in accordance with
its terms, expire prior to 31 December 1999.
Net Asset Statement and Net Asset Adjustment
4.1 The Vendor and the Purchaser shall use all reasonable
endeavours to procure that, promptly after Completion, the
Net Asset Statement is prepared in accordance with the
provisions of this clause 4. Such Net Asset Statement will
be prepared on the basis set out in Schedule 4.
4.2 Following Completion, the Vendor shall instruct Coopers
& ▇▇▇▇▇▇▇ to prepare a draft Net Asset Statement and the
Purchaser shall make all necessary arrangements with Coopers
& ▇▇▇▇▇▇▇ with a view to Coopers & ▇▇▇▇▇▇▇ being in a
position to deliver such draft Net Asset Statement to the
Purchaser (with a copy to the Purchaser's Accountants)
within 30 days of Completion.
4.3 The Purchaser shall notify the Vendor within 20 days of
receipt of such draft Net Asset Statement whether or not it
accepts it for the purposes of this Agreement.
4.4 If the Purchaser notifies the Vendor that it does not
accept such draft Net Asset Statement:
(a) it shall set out its reasons for such non-acceptance
and specify the adjustments which, in its opinion,
should be made to the draft Net Asset Statement in
order to comply with the requirements of this
Agreement; and
(b) the parties shall use all reasonable endeavours (in
conjunction with the Purchaser's Accountants and
Coopers & ▇▇▇▇▇▇▇) to meet and discuss the objections
of the Purchaser and to reach agreement upon the
adjustments (if any) required to be made to the draft
Net Asset Statement.
4.5 If the Purchaser is satisfied with the draft Net Asset
Statement (either as originally submitted or after
adjustments agreed between the Purchaser and the Vendor) or
if the Purchaser fails to notify the Vendor of its
non-acceptance of the draft Net Asset Statement within the
20 day period referred to in clause 4.3, then the draft Net
Asset Statement (incorporating any agreed adjustments) shall
constitute the Net Asset Statement for the purposes of this
Agreement.
4.6 If the Purchaser and the Vendor do not reach agreement
within 30 days of the Purchaser's notice of non-acceptance
under clause 4.4, then the matters in dispute shall be
referred, on the application of either party, for
determination by an independent firm of internationally
recognised chartered accountants to be agreed upon by the
Purchaser and the Vendor or, failing such agreement, to be
selected by the President for the time being of the
Institute of Chartered Accountants in England and Wales.
The following terms of reference shall apply:
(a) the Purchaser's Accountant and Coopers & ▇▇▇▇▇▇▇ shall
each promptly prepare a written statement of the
matters in dispute which (together with the relevant
documents) shall be submitted to such independent firm
for determination;
(b) in giving such determination, the firm shall state what
adjustments (if any) are necessary to the draft Net
Asset Statement in respect of the matters in dispute in
order to comply with the requirements of this
Agreement;
(c) such firm shall act as an expert (and not as an
arbitrator) in making any such determination which
shall be final and binding on the parties;
(d) the expenses of any such determination by an
independent firm of accountants shall be borne between
the Vendor and the Purchaser in such proportions as the
firm shall in its discretion determine and, in the
absence of determination, equally by the Vendor and
Purchaser.
4.7 If the Vendor and the Purchaser reach (or pursuant to
clause 4.5 are deemed to reach) agreement on the Net Asset
Statement or the Net Asset Statement is finally determined
at any stage in the procedure set out in this clause 4:
(a) the Net Asset Statement as so agreed or determined
shall be the Net Asset Statement for the purposes of
this Agreement and shall be final and binding on the
parties; and
(b) the amount of the Net Assets shall be derived from the
Net Asset Statement.
4.8 The Purchaser shall use all reasonable endeavours to
ensure that the Subsidiary provides Coopers & ▇▇▇▇▇▇▇ with
such access to the employees, accounts, working papers and
other financial information of the Subsidiary as is
reasonably necessary for the purposes of this Agreement.
Each party shall similarly use all reasonable endeavours to
ensure that the Purchaser's Accountants and Coopers &
▇▇▇▇▇▇▇ each have such access to all relevant working and
other papers of the other as is reasonably necessary for the
purposes of this Agreement.
Restrictions on Vendor
5.1 The Vendor shall not and shall procure that each other
member of the Vendor's Group shall not (whether alone or
jointly with another and whether directly or indirectly)
carry on or be engaged or interested in any Competing
Business during a period of 18 months after the Completion
Date. For this purpose, Competing Business means the
manufacture and/or sale of Generic Products within the
United Kingdom.
5.2 The restriction contained in clause 5.1 shall not
affect or prohibit:
(a) the acquisition or holding by any member of the
Vendor's Group of shares amounting to less than three
per cent (3%) of the capital of a company quoted on any
stock exchange engaged in a Competing Business; or
(b) the acquisition or holding by any member of the
Vendor's Group of a Controlling Interest in a company
or undertaking engaged in a Competing Business provided
that the annual turnover of the activities constituting
the Competing Business amounts to less than twenty-five
per cent (25%) of the turnover of such company or
undertaking as a whole.
5.3 The provisions of this clause 5 shall not prevent
members of the Vendor's Group:
(a) manufacturing and/or selling Generic Products in
respect of which a member of the Vendor's Group owns
the relevant patent;
(b) manufacturing and/or selling Generic Products which are
manufactured and/or sold by them at the Completion
Date;
(c) manufacturing Generics on behalf of third party
companies at the Swindon Site;
(d) manufacturing at the Swindon Site and/or selling
Generics of hospital pharmaceutical products
manufactured at the Swindon Site on behalf of third
party companies.
5.4 The Vendor shall not (and shall procure that each other
member of the Vendor's Group shall not) within a period of
12 months after the Completion Date, directly or indirectly,
solicit or endeavour to entice away from either ▇▇▇ Group
Company any person who was employed by either ▇▇▇ Group
Company in skilled or managerial work at any time during the
12 months prior to the Completion Date.
5.5 Except so far as may be required by law, in the
circumstances and only after prior consultation with the
Purchaser, the Vendor shall not (and shall procure that each
other member of the Vendor's Group shall not) for a period
of five years after Completion disclose to any person any
trade secret or other confidential information of a
technical character which it holds in relation to either ▇▇▇
Group Company, provided that this obligation shall not apply
to any information which:
(a) is publicly available;
(b) does not relate to the manufacture of any specific
product and was in the possession of a member of the
Vendor's Group prior to or at the date hereof; or
(c) becomes available to a member of the Vendor's Group
from a third party otherwise than in breach of any
obligation of confidentiality owed as at the date
hereof by such third party to either ▇▇▇ Group Company.
5.6 The Vendor acknowledges and agrees that each of clauses
5.1, 5.2, 5.3, 5.4 and 5.5 constitutes an entirely separate
and independent restriction and that the duration, extent
and application of each restriction are no greater than is
reasonable and necessary for the protection of the interests
of the Purchaser.
Warranties
6.1 The Vendor warrants to the Purchaser in the terms of
the Warranties (other than the Overseas Warranties) with
effect as at, and speaking to events, facts, matters and
circumstances in existence as at, 30 April 1998 subject to:
(a) any matter disclosed in the Disclosure Letter (or
treated by the Disclosure Letter as being disclosed),
the draft Coopers & ▇▇▇▇▇▇▇ Long Form Report dated 23
February 1998, the Actuarial Valuation of the Pension
Schemes (defined at paragraph 15 of Part A of Schedule
2) as at 1 October 1996 dated 13 June 1997 and the
Environmental Report of ▇ ▇ ▇▇▇▇▇▇ Consultants Limited
dated 19 February 1998); and
(b) the limitations and qualifications set out in Clause 7.
6.2 Save to the extent that a particular Warranty expressly
states otherwise, the Vendor makes no representation or
warranty to the Purchaser as to the completeness, truth or
accuracy of the matters disclosed in the Disclosure Letter.
6.3 Only Warranty 9 shall apply to the Properties.
Limitations On Claims
7.1 The provisions of this clause 7 shall operate to limit
or reduce the liability of the Vendor in respect of any
Relevant Claim.
7.2.1 The Vendor shall not be liable for any Relevant
Claim (other than a claim pursuant to Clause 10) unless it
shall have received from the Purchaser written notice
containing details of the Relevant Claim, including the
Purchaser's reasonable estimate of the amount thereof:
(i) in the case of a Relevant Claim, not being a claim
pursuant to the Tax Covenant or a claim for breach of
the Transfer Pricing Warranty or for breach of the Tax
Provision Warranty by virtue of an adjustment pursuant
to section 770(3) of the Taxes Act, on or before the
first anniversary of the Completion Date;
(ii) in the case of a Relevant Claim pursuant to the Tax
Covenant or a claim for breach of the Transfer Pricing
Warranty or for breach of the Tax Provision Warranty by
virtue of an adjustment pursuant to section 770(3) of
the Taxes Act, on or before the date which is three
calendar months after the end of the sixth financial
year ending after Completion.
7.2.2 The Vendor shall not be liable for a claim
pursuant to Clause 10 unless it shall have received from the
Purchaser written notice containing details of the claim,
including the Purchaser's written estimate thereof on or
before 30 April 2008.
7.3 Any Relevant Claim (other than a claim pursuant to
Clause 10) shall (if it has not been previously satisfied,
settled or withdrawn) be deemed to have been withdrawn
unless legal proceedings in respect of it have been
commenced by both being issued and served within 9 months of
notification to the Vendor pursuant to clause 7.2.
7.4 If the Purchaser becomes aware of any Relevant Claim,
potential Relevant Claim, matter or event which might lead
to a Relevant Claim being made, the Purchaser shall promptly
give notice thereof to the Vendor and, as regards any such
Relevant Claim, potential Relevant Claim, matter or event,
the Purchaser shall not make any admission of liability,
agreement or compromise with any person, body or authority
in relation thereto without prior consultation with and the
prior written agreement of the Vendor and shall take (or, as
appropriate, procure that the Company or the Subsidiary
shall take) such action as the Vendor may reasonably request
to avoid, dispute, resist, appeal, compromise or defend the
Relevant Claim, potential Relevant Claim, matter or event or
any adjudication in respect thereof, but subject to the
Purchaser being fully indemnified and secured to its
reasonable satisfaction by the Vendor against all reasonable
out-of-pocket costs and expenses incurred by the Purchaser
or any ▇▇▇ Group Company consequently arising. The action
which the Vendor may reasonably request under this
clause 7.4 shall include (without limitation):
(i) the Purchaser allowing, or, as appropriate, procure
that the Company or the Subsidiary allows, the Vendor
to take on or take over (on the costs and expenses
basis referred to in the preceding sentence) the
conduct of all proceedings and/or negotiations of
whatsoever nature arising in connection with the
Relevant Claim, potential Relevant Claim, matter or
event in question; or, (at the Vendor's discretion),
(ii) the Purchaser assigning or procuring the assignment to
the Vendor (or as the Vendor may direct) of any rights
of action which the Purchaser, either ▇▇▇ Group Company
or any other company in the Purchaser's Group may have
against any third party in respect of the Relevant
Claim, potential Relevant Claim, matter or event in
question.
If the Vendor takes on or takes over the conduct of
proceedings and/or negotiations:
(a) the Purchaser shall, on the basis that the Vendor shall
fully indemnify the Purchaser and the relevant ▇▇▇
Group Company against all reasonable out-of-pocket
costs and expenses consequently arising, provide (or,
as appropriate, procure that such ▇▇▇ Group Company
provides) such information and assistance as the Vendor
may reasonably require in connection with the
preparation for and conduct of such proceedings and/or
negotiations;
(b) (subject to the Purchaser having complied with the
relevant requirements set out in the above provisions
of this clause 7.4) the Vendor shall keep the Purchaser
informed of proposed meetings with any relevant third
party, allow an observer appointed on behalf of the
Purchaser or either ▇▇▇ Group Company to attend such
meetings and advise the Purchaser of the outcome of
meetings and discussions to which any such observer was
not a party or at which he was not present;
(c) where, in relation to a Relevant Claim to which this
clause 7.4 applies, the Vendor is able to secure a
potential settlement for the relevant ▇▇▇ Group Company
with a relevant third party at an amount which is less
than Lier50,000 in respect of the loss in such ▇▇▇ Group
Company in respect of which the Relevant Claim is made
it shall notify the Purchaser which shall then either
(i) agree to that settlement (in which event the Vendor
shall be released from all liability in respect of such
Relevant Claim and any other Relevant Claim in respect
of the same subject matter) or (ii) elect to take over
negotiations with the relevant third party in which
case the Purchaser shall release (and provide written
confirmation of such release to) the Vendor from all
liability in respect of such Relevant Claim (and any
other Relevant Claim which can be made in respect of
the same subject matter). If the Purchaser has not
notified the Vendor of its decision within 3 business
days of being notified of the proposed settlement it
shall be deemed to have elected to agree the proposed
settlement.
Except with the prior consent of the Purchaser (such consent
not to be unreasonably withheld) the Vendor shall not where
it has assumed control of negotiations or proceedings in
respect of third party claims under the provisions of this
clause 7.4, settle or compromise any such claim on a basis
which results in a net increase in either ▇▇▇ Group
Company's tax or other liabilities elsewhere unless the
Vendor fully indemnifies such ▇▇▇ Group Company in respect
of such net increase and in pursuing any such claim the
Vendor shall (so far as reasonably consistent with achieving
a successful outcome in respect of the claim) have due
regard to any continuing relationship the ▇▇▇ Group Company
in question may have with the relevant third party. Upon
the Vendor agreeing any settlement with a third party in
relation to any third party claim as referred to above, the
Vendor shall (to the extent that it is liable under the
provisions of this Agreement in respect of the payment of
any part of the settlement amount) promptly put the
Purchaser in funds in respect of that part at the same time
as the Purchaser or, as the case may be, the relevant ▇▇▇
Group Company is required to make due payment of the
settlement amount to the third party bearing in mind any
available credit period.
For the avoidance of doubt, nothing in this clause 7.4 shall
in any way restrict or limit the general obligation at law
of each of the Purchaser and either ▇▇▇ Group Company to
mitigate any loss or damage which it may suffer in
consequence of any breach by the Vendor of the terms of this
Agreement, provided that in respect of such obligation to
mitigate the Purchaser shall not, in the case of a claim
pursuant to Clause 10 only, be obliged to make any claim
under any policy of insurance maintained by the Purchaser's
Group in respect of Product Liability Claims (as defined in
Clause 10).
7.5 The Vendor shall have no liability in respect of any
Relevant Claim unless the liability of the Vendor in respect
of such claim exceeds BP50,000 in which case the Vendor shall
only be liable for the excess. For the avoidance of doubt,
amounts for which the Vendor has no liability, or by which
the Vendor's liability is reduced, as a consequence of the
operation of this clause 7 shall not be capable of
constituting a Relevant Claim or increasing the amount
thereof for the purpose of this clause 7.5.
7.6.1 No liability shall attach to the Vendor in respect
of any Relevant Claim (other than a claim pursuant to Clause
10) unless the aggregate amount of the liability of the
Vendor to the Purchaser in respect of all Relevant Claims
(excluding for this purpose, any claim(s) pursuant to Clause
10) shall exceed BP1,250,000, in which event the Vendor shall
be liable (subject always to the other provisions of this
clause 7) for the entire amount and not just the excess over
BP1,250,000. For the avoidance of any doubt, amounts for
which the Vendor has no liability, or by which the Vendor's
liability is reduced, as a consequence of the operation of
this clause 7 shall not be capable of being aggregated as a
Relevant Claim or part thereof with other Relevant Claims
for the purposes of this clause 7.6.1.
7.6.2 No liability shall attach to the Vendor in respect
of any claim pursuant to Clause 10 unless the aggregate
amount of the liability of the Vendor to the Purchaser in
respect of all claims pursuant to Clause 10 shall exceed
BP1,250,000, in which event the Vendor shall be liable
(subject always to the other applicable provisions of this
clause 7) for the entire amount and not just the excess over
BP1,250,000. For the avoidance of any doubt, amounts for
which the Vendor has no liability, or by which the Vendor's
liability is reduced, as a consequence of the operation of
this clause 7 shall not be capable of being aggregated as a
claim pursuant to Clause 10 or part thereof with other
claims pursuant to Clause 10 for the purposes of this
clause 7.6.2.
7.7 The total aggregate liability of the Vendor in respect
of all Relevant Claims shall not exceed 50 per cent. of the
Purchase Price, save that the total aggregate liability of
the Vendor shall be increased to, but shall, in no event,
exceed 100 per cent. of the Purchase Price:
(i) in respect of a claim for breach of any of the
Ownership Warranties; and
(ii) where it is determined by a court of competent
jurisdiction that the Vendor has been fraudulent in
producing the Disclosure Letter.
7.8 The Vendor shall not be liable for any Relevant Claim
(other than a claim pursuant to Clause 10) in respect of any
matter to the extent that:
(a) allowance, provision or reserve has been made for such
matter in the Accounts or to the extent that payment or
discharge of the relevant matter has been taken into
account therein;
(b) such Relevant Claim arises or, such Relevant Claim
otherwise having arisen, is increased as a result of
any change made after the Completion Date in any
accounting or taxation policies or practice of either
▇▇▇ Group Company, the Purchaser or any other member of
the Purchaser's Group.
7.9 Where a ▇▇▇ Group Company or the Purchaser is entitled
(whether by reason of insurance (in the case of insurance
only, other than in the case of a claim pursuant to Clause
10) or payment discount or otherwise) to recover from some
other person any sum in respect of taxation or any other
liability, loss or damage the subject of a Relevant Claim
against the Vendor or for which a Relevant Claim could be
made (and whether before or after the Vendor has made
payment hereunder), the Purchaser shall promptly notify the
Vendor and provide such information as it may require
relating to such liability or dispute and the steps taken or
to be taken by the Purchaser or the relevant ▇▇▇ Group
Company in connection with it and, if so required by the
Vendor and at the Vendor's cost and expense and on the
Vendor providing proper indemnities in respect of all costs
and expenses to be incurred, the Purchaser shall, and shall
procure that the relevant ▇▇▇ Group Company shall, before
seeking to recover any amount from the Vendor under this
Agreement or the Tax Covenant, first take all steps (whether
by way of a claim against its insurers or otherwise)
including, but without limitation, proceedings as the Vendor
may reasonably require to enforce such recovery and shall
keep the Vendor informed of the progress of any action taken
and thereafter any claim against the Vendor shall be limited
(in addition to the limitations on the liability of the
Vendor referred to in this Clause) to the amount by which
the loss or damage suffered by the Purchaser as a result of
such breach shall exceed the amount so recovered.
7.10 If the Vendor pays to the Purchaser an amount in
discharge of a Relevant Claim and the Purchaser or either
▇▇▇ Group Company subsequently recovers (whether by payment,
discount, credit, relief or otherwise) from a third party
(including any taxation authority) a sum which is referable
to the Relevant Claim, the Purchaser shall (or, as
appropriate, shall procure that such ▇▇▇ Group Company
shall) forthwith repay to the Vendor:
(a) an amount equal to the sum recovered from the third
party less any reasonable out-of-pocket costs and
expenses incurred by the Purchaser or the ▇▇▇ Group
Company in recovering the same and any tax payable by
the Purchaser or the ▇▇▇ Group Company in respect of
the sum recovered; or
(b) if the figure resulting under paragraph (a) above is
greater than the amount paid by the Vendor to the
Purchaser or the relevant ▇▇▇ Group Company in respect
of the such Relevant Claim, such lesser amount as shall
have been so paid by the Vendor;
so as to leave the Purchaser (taking into account the
amounts received from the third party and from the Vendor
and those payable to the Vendor under this clause) in no
better or worse position than it would have been in (subject
always to the other provisions of this clause 7.10) had the
Relevant Claim not arisen in the first place.
7.11 If any Relevant Claim shall arise by reason of some
liability which at the time that the Relevant Claim is
notified to the Vendor is contingent only, the Vendor shall
not be under any obligation to make any payment to the
Purchaser thereunder until such time as such contingent
liability ceases to be so contingent.
7.12 The Vendor shall not be liable in respect of any
Relevant Claim (other than a claim pursuant to Clause 10) to
the extent that the amount of such Relevant Claim would be
recoverable from insurers if the policies of insurance
effected by or for the benefit of either ▇▇▇ Group Company
were maintained on no less favourable terms as those
existing at the date hereof.
7.13 Upon any Relevant Claim being made, the Purchaser
shall, and shall co-operate to procure that each ▇▇▇ Group
Company shall, make available to accountants and others
appointed by the Vendor such relevant records and
information as the Vendor reasonably requests in connection
with such Relevant Claim (including the position under the
provisions contained in clauses 7.8 and 7.10) and the
Purchaser shall, and shall co-operate to procure that each
▇▇▇ Group Company shall, use best endeavours to procure that
the auditors (both past and then current) of the ▇▇▇ Group
make available to the Vendor and to accountants and others
appointed by the Vendor their audit working papers in
respect of their audit of either ▇▇▇ Group Company's
accounts for any relevant accounting period in connection
with the Relevant Claim.
7.14 The Vendor shall not be liable for such Relevant Claim
if and to the extent it would not have arisen but for any
act, omission or transaction carried out after Completion by
the Purchaser or a ▇▇▇ Group Company or their respective
directors, employees or agents or before Completion at the
direction of the Purchaser.
7.15 The Vendor shall not be liable in respect of any
Relevant Claim (other than a claim pursuant to Clause 10) to
the extent that such Relevant Claim is attributable to, or
such Relevant Claim otherwise having arisen, is increased as
a result of any legislation not in force at the date hereof
or to any change of law or administrative practice
(including but not limited to extra-statutory concessions of
the Inland Revenue) which takes effect retroactively or
occurs as a result of any increase in the rates of taxation
in force at the date hereof or occurs as a result of or is
otherwise attributable to the Purchaser or a ▇▇▇ Group
Company disclaiming any part of the benefit of capital or
other allowances against taxation claimed or proposed to be
claimed on or before the date hereof.
7.16 The Warranties and the Tax Covenant shall be actionable
only by the Purchaser and no other party shall be entitled
to make any claim or take any action whatsoever against the
Vendor under or arising out of or in connection with this
Agreement or the Tax Covenant.
7.17 A breach of the Warranties which is capable of remedy
shall not entitle the Purchaser to compensation unless the
Vendor is given written notice of such breach and such
breach is not remedied within 30 days after the date on
which such notice is served on the Vendor.
7.18 The Purchaser hereby agrees for itself and on behalf of
each ▇▇▇ Group Company with the Vendor that in respect of
any Relevant Claim where the Vendor may be liable to the
Purchaser under the Warranties and which may also give rise
to a liability under the Tax Covenant or in respect of which
the Purchaser is entitled to receive any amount pursuant to
Clause 2.4, Clause 4 or Clause 10, the Vendor shall not be
obliged to meet any such liability more than once. Any
recovery by the Purchaser in respect of any such Relevant
Claim under the Warranties shall be deemed to be a recovery
by all the relevant parties under the Tax Covenant and any
recovery by any party under the Tax Covenant shall be deemed
to be a recovery by the Purchaser under this Agreement for
breach of the Warranties (as the case may be) and a recovery
by the Purchaser or either ▇▇▇ Group Company shall be deemed
to be a recovery by each of them.
7.19 The sole remedy against the Vendor for any breach of
any of the Warranties, any other breach of this Agreement by
the Vendor or any event giving rise to liability on the
Vendor under the Tax Covenant shall be an action for damages
and the Purchaser shall not be entitled to rescind this
Agreement.
7.20 The Vendor shall not be liable in respect of any
Relevant Claim (other than a claim pursuant to Clause 10 or
the Tax Covenant) where any member of the Purchaser's Group
as at the date hereof was aware at the time of this
Agreement being entered into of facts, matters or
circumstances which are the subject of the Relevant Claim
and any such member of the Purchaser's Group was aware at
such time that those facts, matter or circumstances would,
when this Agreement was entered into, have caused the
relevant Warranty or Warranties to be untrue or inaccurate
or misleading.
7.21 Clauses 7.4, 7.8, 7.10, 7.14 and 7.15 above shall not
apply to claims for breach of the Tax Warranties or under
the Tax Covenant and, accordingly, paragraphs 3, 8 and 10 of
the Tax Covenant shall apply to claims under the Tax
Warranties as they do in relation to claims under the Tax
Covenant.
Provisions relating to the use of the ▇▇▇ Name
8.1 Without prejudice to any right of the Purchaser to
bring a claim for breach of the Intellectual Property
Warranty, the Purchaser hereby irrevocably and
unconditionally releases the Vendor (on its behalf and on
trust for each member of the Vendor's Group) from, and
waives, and shall procure that each ▇▇▇ Group Company and
each member of the Purchaser's Group shall irrevocably and
unconditionally releases the Vendor (on its behalf and on
trust for each member of the Vendor's Group) from and
waives, all claims (if any) arising from any use whatsoever
made by the members of the Vendor's Group of the ▇▇▇ name
and trade ▇▇▇▇ at any time prior to Completion.
8.2 The Vendor hereby undertakes to cease, and to procure
that each member of the Vendor's Group shall cease, to use
the ▇▇▇ name and trade ▇▇▇▇ as soon as possible following
Completion and, in any event, prior to 1 March 1999.
Alpharma Guarantee, Vendor Indemnity and Confirmation
9.1 In consideration of the Vendor entering into and acting
in accordance with this Agreement, Alpharma (as principal
obligor and not merely as a surety) unconditionally and
irrevocably guarantees as a continuing obligation the proper
and punctual performance by the Purchaser of all its
obligations under or pursuant to this Agreement (including
any documents of transfer or otherwise entered into pursuant
to the terms of this Agreement).
9.2 Alpharma's liability hereunder shall not be discharged
or impaired by any amendment to or variation of this
Agreement, any release of, or granting of time or other
indulgence to, the Purchaser or any third party, any
liquidation, administration, receivership or winding-up of
the Purchaser or by any other act or omission or any other
events or circumstances whatsoever (whether or not known to
the Vendor, the Purchaser or Alpharma) which would or might
(but for this clause) operate to impair or discharge
Alpharma's liability under this guarantee.
9.3 As a separate, continuing and primary obligation,
Alpharma undertakes to indemnify the Vendor on demand
against all losses, claims or costs suffered or incurred by
the Vendor while acting in good faith should any amounts
which would otherwise be due under this Agreement not be
recoverable for any reason whatsoever including (but not
limited to) the Agreement being or becoming void, voidable
or unenforceable.
9.4 Until such time as the option granted pursuant to
Clause 9.7 has been exercised, the Vendor hereby covenants
with the Purchaser to indemnify and keep the Purchaser
indemnified on demand against all losses, claims or costs
suffered or incurred by any member of the Purchaser's Group
as a direct result of any liability of any nature
whatsoever, in existence on or prior to the date hereof, of,
within or affecting any of the Overseas Companies other than
a liability arising:
(i) in the ordinary course of the business of the relevant
Overseas Company, save where such liability arises as a
result of any non-trading indebtedness; and/or
(ii) arising, or referable to, an event occurring after
Completion.
9.5 To the extent that any Intra-Group Indebtedness is
found to be owing from any of the Overseas Companies to any
other member of the Vendor's Group, the Vendor undertakes to
procure that the relevant member of the Vendor's Group shall
waive the same.
9.6 To the extent that any Intra-Group Indebtedness is
found to be owing from any member of the Vendor's Group to
any of the Overseas Companies, the Purchaser undertakes to
procure that the relevant Overseas Company shall waive the
same.
9.7 The Purchaser hereby irrevocably grants to the Vendor
the right to acquire, and the Vendor hereby irrevocably
grants to the Purchaser the right to sell, the Overseas
Companies for a consideration of BP1 for each Overseas
Company, in each case exercisable with effect from 31 July
1998. The right to acquire or the right to sell, as
applicable, shall be exercised by notice in writing (the
Notice) delivered by the party exercising the right to the
other.
9.8 If the option granted pursuant to Clause 9.7 is
exercised, the Vendor and the Purchaser will within one
month of receipt of the Notice enter into a transfer
agreement on substantially similar terms to those contained
in the Transfer Documents and, in addition, containing an
indemnity from the Purchaser to the Vendor with similar
scope and extent to the indemnity in Clause 9.4 in respect
of liabilities coming into existence after Completion.
Product Liability
10.1 The Vendor hereby covenants to indemnify and hold
harmless the ▇▇▇ Group and the Purchaser from and against
any and all losses, liabilities or costs incurred by any of
them as a direct result of any litigation or claim whether
arising before or after Completion against either ▇▇▇ Group
Company or the Purchaser, arising from the manufacture, sale
or supply by either ▇▇▇ Group Company on or prior to
Completion of products which:
(i) are defective or harmful (including, without
limitation, as a result of having carried
inaccurate or misleading warnings); or
(ii) do not comply with any warranties or
representations made in writing by the ▇▇▇ Group
Company in question or implied by law (Product
Liability Claims).
10.2 The Vendor shall co-operate with the ▇▇▇ Group Company
in (a) providing (and procuring that their insurance brokers
provide) copies of, and information concerning, all
insurance policies and loss runs relating to the operations
of either ▇▇▇ Group Company (other than in relation to
Product Liability Claims) for time periods prior to
Completion and (b) filing all claims (other than Product
Liability Claims) which the Purchaser reasonably believes
appropriate under policies of insurance maintained by any
member of the Vendor's Group with respect to the operations
of either ▇▇▇ Group Company at or before Completion. The
Vendor will forward copies of all correspondence with
respect to such claims to the Purchaser and will forward
materials to the insurer as requested by the Purchaser. The
Vendor will not take any action to compromise or otherwise
affect any such claims without the consent of the Purchaser.
Any amounts received by the Vendor from an insurer in
respect of any claims filed pursuant to this Clause 10.2
shall be forwarded forthwith to the Purchaser or the ▇▇▇
Group Company, as applicable.
10.3 For the avoidance of doubt, none of the provisions of
Clause 7 shall apply to any amount which would otherwise be
recoverable by the Purchaser from an insurer pursuant to
Clause 10.2.
Entire agreement
11. This Agreement, together with all other agreements to
be executed in accordance with its terms, sets out the
entire agreement and understanding between the parties in
respect of the sale and purchase of the Shares and the sale
and purchase of the Overseas Shares pursuant to the Transfer
Agreements. This Agreement supersedes any confidentiality
undertaking which shall cease to have any further force or
effect. It is agreed that:
(a) neither party has entered into this Agreement in
reliance upon any representation, warranty or
undertaking of the other party which is not expressly
set out or referred to in this Agreement;
(b) a party may claim in contract for breach of Warranty
under this Agreement but, subject to clause 11(c),
shall have no claim or remedy under this Agreement in
respect of misrepresentation (whether negligent or
otherwise, and whether made prior to, and/or in, this
Agreement) or untrue statement made by the other party;
(c) this clause shall not exclude any liability for
fraudulent misrepresentation.
Variation
12. No variation of this Agreement (or any document entered
into pursuant to this Agreement) shall be valid unless it is
in writing and signed by or on behalf of each of the parties
hereto.
Assignment
13. No party may assign or transfer all or any of its
rights or obligations hereunder without the prior written
consent of the other party except that the Vendor may assign
its rights under this Agreement and the Transfer Agreements
to any other member of the Vendor's Group.
Announcements
14. Except so far as may be required by any applicable law
or by any of the regulatory requirements of any
jurisdiction, including the rules of the London Stock
Exchange Limited, or of The City Code on Take-Overs and
Mergers, no announcement or circular in connection with the
subject matter of this Agreement shall be made or issued by
or on behalf of either party without the prior written
approval of the other (such approval not to be unreasonably
withheld or delayed).
Costs
15. Each of the parties hereto shall pay its own costs
incurred in connection with the negotiation, preparation and
implementation of this Agreement and the Purchaser shall pay
all stamp duty and stamp duty reserve tax (if any) on the
transfer of the Shares together with all stamp duty and
stamp duty reserve tax (if any) on the transfer of the
Overseas Shares and any notarial fee or analogous expenses.
Invalidity
16. If any term or provision of this Agreement shall be
held to be illegal or unenforceable, in whole or in part,
under any enactment or rule of law, such term or provision
or part shall to that extent be deemed not to form part of
this Agreement but the enforceability of the remainder of
this Agreement shall not be affected. The parties shall
then use all reasonable endeavours to replace the illegal or
unenforceable provision by a valid provision the effect of
which is as close as possible to the intended effect of the
invalid or unenforceable provision.
Counterparts and Further Assurance
17.1 This Agreement may be entered into in any number of
counterparts and by the parties to it on separate
counterparts, each of which, when executed and delivered,
shall be an original, but all the counterparts shall
together constitute one and the same instrument.
17.2 At any time after Completion, the Vendor shall, at the
Purchaser's expense, execute all such documents and do all
such things as the Purchaser may reasonably require for the
purpose of vesting in the Purchaser the full legal and
beneficial title to the Shares and giving the Purchaser the
full benefit of this Agreement.
Notices
18.1 Any notice under this Agreement shall be in writing and
signed by or on behalf of the party giving it and may be
served by leaving it or sending it by facsimile, prepaid
recorded delivery or registered post to the address and for
the attention of the relevant party set out in clause 18.2
(or as otherwise notified from time to time hereunder). Any
notice so served by facsimile or post shall be deemed to
have been received:
(a) in the case of facsimile, twelve (12) hours after the
time of despatch;
(b) in the case of recorded delivery or registered post,
forty eight (48) hours from the date of posting if
posted in the United Kingdom to an address in the
United Kingdom or seven days if posted to or from an
address outside the United Kingdom.
18.2 The addresses of the parties for the purpose of
clause 18.1 are as follows:
The Vendor: Hoechst AG
For the attention of: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: 00 49 69 305 16308
With a copy to:
For the attention of: ▇▇▇ ▇▇ ▇▇▇▇
Fascimile: 00 49 69 305 82733
The Purchaser: Alpharma (U.K.) Limited
For the attention of: ▇▇▇▇▇▇ ▇▇▇▇
Facsimile: 00 47 22 52 93 40
With a copy to:
For the attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Fascimile: 00 1 201 592 1481
Governing Law And Jurisdiction
19.1 This Agreement is governed by, and shall be construed
in accordance with, the laws of England.
19.2 Each of the parties hereby irrevocably submits, for the
benefit of the other, to the non-exclusive jurisdiction of
the courts of England.
In Witness Whereof this Agreement has been signed by and on
behalf of the parties the day and year first before written.
SCHEDULE 1
The Company And The Subsidiary
PART I
Details of the Company
1. Registered Number: 3382754
2. Registered Office: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇ ▇▇▇
3. Directors:
(a) Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(b) Address: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
(c) Nationality: German
Directors:
(a) Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
(b) Address: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇
(▇) Nationality: Austrian
4. Secretary: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
5. Authorised Capital: BP3,000,000 (divided into
ordinary shares of BP1 each)
6. Issued Capital: BP2,416,002
7. Registered Hoechst AG
Shareholders:
8. Accounting Reference 31 December
Date:
9. Auditors: Coopers & ▇▇▇▇▇▇▇
10. Tax Residence: UK
11. Tax District and West Midlands Large
Reference: Business Office
468/94680/59102
12. VAT Registration N/A
Number:
13. Subsidiaries: ▇▇▇▇▇▇ ▇. ▇▇▇ & Co.,
Limited
14. Mortgages and None
Charges:
PART II
Details of the Subsidiary
▇▇▇▇▇▇ ▇. ▇▇▇ & Co., Limited
1. Name: ▇▇▇▇▇▇ ▇. ▇▇▇ & Co., Limited
2. Date of 30 December 1903
Incorporation:
3. Place of London
Incorporation:
4. Class of Company: Private Company Limited by
Shares
5. Registered Number: 79585
6. Registered Office ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇ ▇▇▇
7. Directors:
(a) Name: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(b) Address: Florestan ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(c) Nationality: British
Directors:
(a) Name: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(b) Address: Pipits, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(c) Nationality: British
Directors:
(a) Name: ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
(b) Address: ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(c) Nationality: British
Directors:
(a) Name: Dr ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
(b) Address: Marchfields
▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(c) Nationality: British
8. Secretary: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
9. Authorised Capital: BP1,380,000 (divided into
ordinary shares of BP1
each)
10. Issued Capital: BP1,370,397
11. Registered ▇▇▇ Investments Limited
Shareholders: 1,370,397 ordinary shares
12. Accounting Reference 31 December
Date:
13. Auditors: Coopers & ▇▇▇▇▇▇▇
14. Tax Residence: UK
15. Tax District and West Midlands Large
Reference: Business Office
468/94680/59102
16. VAT Registration 192 3845 42
Number:
17. Mortgages and None
Charges:
SCHEDULE 2
Part A
Warranties
1. Disclosure
Deliberately omitted.
2. The Shares
(a) The Shares comprise the whole of the issued and
allotted share capital of the Company and all of the
Shares are fully paid.
(b) There are no security interests, options, equities,
claims or other third party rights over or affecting
the Shares and there is no agreement to give or create
any such interest.
(c) There are no options or rights of first refusal to
acquire or subscribe for any shares in the capital of
the Company.
(d) The Company has not engaged in any other business or
activity other than holding the Shares and has no
material liabilities or obligations, other than those
incurred as a result of holding the Shares.
3. The Vendor's Capacity
(a) The Vendor is the sole beneficial owner of the Shares.
(b) The Vendor has obtained all corporate authorisations
required to empower it to enter into this Agreement and
to perform its obligations hereunder in accordance with
their terms.
(c) The Vendor's obligations under and performance of this
Agreement do not conflict with any other obligation or
agreement of the Vendor.
4. Subsidiary Company
(a) The Company is the beneficial owner free from all
encumbrances, equities and claims (including security
interests, options and other third party rights in the
issued or unissued share capital of the Subsidiary) of
the whole of the share capital of the Subsidiary listed
in Schedule 1 Part II.
(b) Other than holding shares in the Non-Trading Companies,
for so long as the Subsidiary has been a member of the
Vendor's Group, it has not been engaged in any activity
other than the pharmaceutical business and other
related activities.
(c) None of the Non-Trading Companies has incurred any
liabilities or obligations actual or contingent (such
term being defined for these purposes by reference to
SSAP 18) (save in relation to incorporation and setting
up costs and expenses) nor is involved in any
litigation of any kind. So far as the Vendor is aware,
each of the Non-Trading companies is a subsidiary of
the Subsidiary.
5. Good standing
The Company (a) is duly organised and validly existing under
the laws of the place of its incorporation and (b) has full
corporate power and authority to carry on its business as it
is now being conducted and to own the material properties
and assets it now owns. The Vendor has provided to the
Purchaser a copy of the Memorandum and Articles of
Association of the Company as in effect immediately prior to
this Agreement.
6. Accounts for the year ended on the Accounts Date
The Accounts of the Subsidiary, which have been audited by
Coopers & ▇▇▇▇▇▇▇, gave a true and fair view of the state of
affairs of the Subsidiary at the Accounts Date, and of the
results of the Subsidiary for the financial year ended on
the Accounts Date and, so far as the Vendor is aware, have
been prepared in all material respects in accordance with
United Kingdom generally accepted accounting principles on a
basis consistent with the preparation of the audited
accounts in respect of the 1996 financial year.
7. Accounting Records
The accounting records of the Company and the Subsidiary
relevant to the preparation and audit of their statutory
accounts are in all material respects up to date and, so far
as the Vendor is aware, reflect, in accordance with the
usual practice in the applicable jurisdictions, the assets
and liabilities and all material transactions entered into
by it.
8. Position since the Accounts Date
Since the Accounts Date,:
(a) no dividend or other distribution (within the meaning
of section 209, 210 or 418 of the Taxes Act) has been
declared, paid or made by a ▇▇▇ Group Company (Except
for any dividends provided for in the Accounts of the
relevant ▇▇▇ Group Company);
(b) each member of the ▇▇▇ Group has conducted its business
in the usual way so as to maintain that business as a
going concern;
(c) no share or loan capital has been allotted or issued or
agreed to be allotted or issued by a ▇▇▇ Group Company;
(d) neither member of the ▇▇▇ Group has other than in the
ordinary course of business acquired or disposed of, or
agreed to acquire or dispose of businesses or assets
with an aggregate value in excess of BP250,000;
(e) no contract, liability or commitment (whether in
respect of capital expenditure or otherwise) has been
entered into by either member of the ▇▇▇ Group which
will continue in force for more than twelve months
after Completion or which involved or could involve an
obligation of a material nature or magnitude (a
liability for expenditure in excess of BP250,000 being
material for this purpose);
(f) no debtor owing in excess of BP100,000 has been released
by either ▇▇▇ Group Company on terms that it pays less
than the book value of its debt and no debt in excess
of BP100,000 owing to either ▇▇▇ Group Company has been
deferred, subordinated or written off or has proved to
any extent irrevocable;
(g) each ▇▇▇ Group Company has paid its trade creditors in
all material respects in the ordinary course;
(h) except as set forth in the 1998 Subsidiary budget
attached as Schedule 9 to the Disclosure Letter or as
otherwise disclosed, neither member of the ▇▇▇ Group
has purchased or contracted to purchase any capital
assets with an aggregate value in excess of BP250,000;
(i) there have been no transactions by any member of the
▇▇▇ Group with any member of the Vendor's Group
otherwise than in the ordinary course of business; and
(j) so far as the Vendor is aware, save for the facts and
matters set out in the Disclosure Letter and for facts
and matters likely to affect to a similar extent
generally all companies carrying on similar businesses,
there are no other facts or matters which might
reasonably be expected to have a material adverse
effect on the business of the ▇▇▇ Group, taken as a
whole.
9. The Company's assets
(a) So far as the Vendor is aware, the ▇▇▇ Group owns or is
entitled to use and enjoy all the rights and assets
necessary to carry on the business of the ▇▇▇ Group
substantially as carried on in the financial period
ended on the Accounts Date, except for any assets
disposed of in the ordinary course of business since
that date. No asset (other than the Properties) owned
by any ▇▇▇ Group Company with a value in excess of
BP50,000 is the subject of any security interest or
option or similar encumbrance, except for:
(i) any hire or lease agreement in the ordinary course
of business;
(ii) title retention provisions in respect of goods and
materials supplied to the ▇▇▇ Group in the
ordinary course of business;
(iii) the security interests, if any, reflected in
the Accounts and liens arising in the ordinary
course of business by operation of law.
(b) The Properties are all the properties owned or leased
by the ▇▇▇ Group.
(c) The entire legal estate and beneficial interest in each
of the Properties is vested in a ▇▇▇ Group Company.
(d) So far as the Vendor is aware, no ▇▇▇ Group Company has
entered into a lease of any property which predates 1
January 1996 which is not one of the Properties and in
respect of which a ▇▇▇ Group Company has received a
valid notice under section 17(1) of the Landlord and
Tenant (Covenants) ▇▇▇ ▇▇▇▇ which is subsisting.
(e) Copies of all leases material to the business of the
▇▇▇ Group Company are contained in the Data Room.
(f) So far as the Vendors are aware the transaction
contemplated by this Agreement will not materially
alter or affect any of the terms and conditions
(including, without limitation, the rents payable
thereunder) of any of the leases pursuant to which a
▇▇▇ Group Company holds the Properties. Save as
disclosed, the Subsidiary has not received notification
of any subsisting claim for a material breach of
contract in respect of the leases pursuant to which a
▇▇▇ Group Company holds the Properties nor is the
Vendor aware of any subsisting material breach of the
said leases by the lessor.
10. Debts
Except for indebtedness or loans to third parties disclosed,
referred to or provided for in the Accounts, the ▇▇▇ Group
does not have outstanding any loans in excess of BP250,000
to third parties which have arisen otherwise than in the
normal course of the Subsidiary's business.
11. Contractual matters
(a) The Subsidiary has made available to the Purchaser
copies of the contracts and agreements which are
material to the business of the Subsidiary which have
been entered into by the Subsidiary as specified in the
Disclosure Letter and, so far as the Vendor is aware,
no third party is in default under any of such
contracts where such default would have a material
adverse effect on the ▇▇▇ Group and, so far as the
Vendor is aware, such agreements and contracts have not
been terminated or varied in any material respect since
such copies were so made available.
(b) Save as disclosed, the Company and the Subsidiary have
not received written notification of any claim for
breach of contract in respect of the contracts and
agreements referred to above and no litigation or
similar proceedings have been instituted nor, so far as
the Vendor is aware, is any third party in default
under any of such contracts where such default would
have a material adverse effect on the ▇▇▇ Group.
(c) Save as disclosed, there is not outstanding any
guarantee, indemnity or suretyship by either the
Company or the Subsidiary in respect of any material
obligation of any third party.
(d) Except as set out in the document attached as Schedule
4 to the Disclosure Letter, the Subsidiary is not
prohibited by contract from selling its top 23 products
(being those products listed in the document attached
as Schedule 5 to the Disclosure Letter) anywhere in the
world.
(e) The document attached as Schedule 6 to the Disclosure
Letter contains a complete list of all material
contracts between each ▇▇▇ Group Company and any member
of the Vendor's Group.
(f) The document attached as Schedule 7 to the Disclosure
Letter contains a complete list of all material
contracts which, by virtue of the acquisition of the
Shares by the Purchaser, will result in any other party
becoming entitled to exercise any right of termination.
12. Litigation and Regulatory matters
(a) Save as disclosed, the Company or the Subsidiary is not
engaged in, and, so far as the Vendor is aware, has not
been threatened in writing with, any litigation or
arbitration or similar proceedings which, if adversely
determined, individually or collectively are regarded
or ought reasonably to be regarded by the Vendor as
likely to have a material adverse effect on the
financial position of the ▇▇▇ Group.
(b) Save as disclosed, the ▇▇▇ Group has, so far as the
Vendor is aware, in all material respects conducted its
business and corporate affairs in accordance with all
applicable laws and regulations.
(c) Save as disclosed, so far as the Vendor is aware, the
▇▇▇ Group has obtained all material licences,
permissions, authorisations and consents required for
the carrying on of its business in the places and the
manner in which such business is now carried on; and
(d) Save as disclosed, so far as the Vendor is aware, no
state or official investigation or enquiry concerning
the ▇▇▇ Group is in progress.
(e) The document attached as Schedule 8 to the Disclosure
Letter contains a substantially complete list, by
product and country, of those foreign product
registrations for the top 23 products of the Subsidiary
which, so far as the Vendor is aware, are registered as
at the date of this Agreement, where the consequences
of such product registrations not being registered
would be materially adverse to the ▇▇▇ Group.
13. Directors and Employees
(a) The Vendor has made available to the Purchaser a list
of all the employees of the ▇▇▇ Group whose annual
salary excluding bonuses exceeds BP50,000 together with
details of their remuneration, copies of all applicable
collective bargaining agreements and a copy of the
relevant ▇▇▇ Group Company's standard terms and
conditions of employment. The Vendor has also made
available details of the remuneration of the members of
the board of directors of the relevant ▇▇▇ Group
Company where those directors are remunerated by the
relevant ▇▇▇ Group Company for holding that office.
(b) Save as disclosed, so far as the Vendor is aware, the
▇▇▇ Group, in relation to each of its employees and so
far as relevant to each of its former employees, has
complied in all material respects with all relevant
statutes, regulations, codes of conduct, collective
agreements, orders and awards relevant to their
conditions of service or to the relations between it
and its employees or any recognised trade union.
14. Insurance
(a) The Vendor has made available to the Purchaser details
of the insurances maintained by or on behalf of the ▇▇▇
Group. The Vendor is not aware of any material
outstanding claims under or in respect of (i) the
validity of any policies of insurance maintained by the
▇▇▇ Group or (ii) whether any claim notified in writing
is covered by the policy of insurance against which
such claim has been made.
(b) Completion will not affect any rights of either ▇▇▇
Group Company under the policies of insurance
maintained by them or on their behalf to continue or to
make a claim in relation to an event which occurs, or
has occurred, prior to Completion, to the extent that
such event would have given rise to an insurance claim
under such policies of insurance had the Shares not
been acquired by the Purchaser.
15. Pensions
Definitions
In this paragraph:
Actuarial Valuation means the actuarial valuation of the
Pension Scheme as at 1 October 1996 prepared by ▇.▇. ▇▇▇▇▇
of I.S. ▇▇▇▇▇▇▇▇▇▇ & Co.;
Employees means the officers and employees of the
Subsidiary, and Employee means any one of them;
Pension Scheme means the ▇▇▇▇▇▇ ▇. ▇▇▇ & Company Limited
Retirement Benefit Scheme;
Trustees means the trustees of the Pension Scheme.
(a) Other than the state pension scheme, the Pension Scheme
is the only arrangement under which the Subsidiary
provides or is liable to provide relevant benefits (as
defined in section 612(1) of the Taxes Act) in respect
of any past or present Employee.
(b) The Vendor or its advisers have disclosed to the
Purchaser or its advisers:
(i) copies of the trust deed and rules governing
the Pension Scheme;
(ii) copies of all benefit announcements and
correspondence (if any) under which members of the
Pension Scheme are granted special benefits not
documented in the trust deed and rules governing
the Pension Scheme;
(iii) a copy of the Actuarial Valuation; and
(iv) a list as at 13 March 1998 of the current
Employees who are members of the Pension Scheme.
(c) The Pension Scheme is exempt approved within the
meaning of Chapter I of Part XIV of the Taxes Act and,
to the Vendor's knowledge, there is no matter which it
recognises could reasonably cause the Inland Revenue to
withdraw such approval. There is in force in respect
of the Pension Scheme a contracting-out certificate
(within the meaning of section 7 of the Pension Schemes
Act 1993) and, so far as the Vendor is aware, the
Pension Scheme has been administered in material
compliance with the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the
Pensions ▇▇▇ ▇▇▇▇.
(d) As far as the Vendor is aware, no amounts due and
payable by the Subsidiary to the Trustees are
outstanding and no such amounts have been requested.
(e) As far as the Vendor is aware, the Subsidiary and the
Trustees have complied in all material respects with
their respective obligations under the Pension Scheme
(including under Article 119 of the Treaty of Rome and
the Pensions Act 1995) in relation to past and present
Employees (other than its obligations for sex
equalisation in relation to GMPs).
(f) Neither the Vendor nor, so far as the Vendor is aware,
the Trustees or the Subsidiary have received written
notice of any material claim being made or threatened
by any Employee against the Subsidiary or the Trustees
in relation to the Pension Scheme.
(g) All lump sum benefits (other than a refund of
contributions) payable from the Pension Scheme on death
in service, sickness and disability are insured with an
insurance company.
(h) The Actuarial Valuation disclosed that the aggregate
value of the assets of the Pension Scheme at the date
of the valuation were equal to or greater than the
aggregate value of the liabilities assessed on an
ongoing basis calculated in accordance with the
actuarial methods and assumptions used in the Actuarial
Valuation. The Vendor is not aware of any action
having been taken (except in the ordinary course of
business) by the Vendor, the Subsidiary or the Trustees
since the date of the Actuarial Valuation that would
have a materially adverse effect on the funding
position of the Pension Scheme as disclosed in the
Actuarial Valuation.
(i) The Subsidiary has no obligation or liability (actual
or contingent, present or future) to contribute to any
personal pension scheme (as defined in section 630 of
the Taxes Act) in respect of any of its Employees.
(j) To the Vendor's knowledge no action has been taken
under the Pension Scheme to augment benefits beyond
those set forth in the written Scheme or admit to
membership a person not otherwise eligible.
(k) To the Vendor's knowledge, the only part-time employees
excluded from the Pension Scheme are those who worked
16 or less hours per week.
16. Intellectual Property
Definitions
In this paragraph:
Intellectual Property Rights means patents, trade marks,
service marks, trade names, design rights, copyright
(including rights in computer software), database rights,
rights in know-how and other intellectual property rights,
in each case whether registered or unregistered and
including applications for the grant of any such rights and
all rights or forms of protection having equivalent or
similar effect anywhere in the world;
(a) Details of all registered Intellectual Property Rights
(including applications for registration) are set out
in the Disclosure Letter. The Subsidiary is the legal
or beneficial owner of such registered rights. So far
as the Vendor is aware, such rights are not the subject
of any mortgage, charge, lien, other security interest
or licence. The Vendor has not received written
notification from any third party challenging the
validity of any such Intellectual Property Rights.
(b) So far as the Vendor is aware, none of the operations
of the ▇▇▇ Group infringe any Intellectual Property
Rights of any third party.
(c) The document attached as Schedule 10 to the Disclosure
Letter sets forth a substantially complete list of all
material products under development. So far as the
Vendor is aware, there are no facts or circumstances in
existence which would result in such products, on their
introduction, infringing the Intellectual Property
Rights, in existence and as known to the Vendor as at
the date of this Agreement.
Part B
Tax Warranties
Definitions
1. In this Part B of Schedule 2:
1.1 Tax and tax authority shall have the same meanings as
they have for the purposes of the Tax Covenant.
1.2 References to any provision of an enactment are
references to it as from time to time amended, consolidated
or re-enacted (with or without modification), and also
include any provision replaced by such provision.
General/compliance
Accounts
2.1 All material liabilities, whether actual or deferred of
each ▇▇▇ Group Company for tax measured by reference to
income, profits or gains earned, accrued or received on or
before the Accounts Date or arising in respect of an event
occurring or deemed to occur on or before the Accounts Date
are fully provided for or (as appropriate) disclosed in the
Accounts.
Returns etc.
2.1 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 and has maintained
all records required to be maintained for tax purposes; all
such information was and remains complete and accurate in
all material respects and all such returns and notices were
and remain complete and accurate in all material respects
and were made on the proper basis.
Disputes, investigations
2.2 Neither ▇▇▇ Group Company is involved in any material
current dispute with any tax authority or is or has in the
last three years been the subject of any investigation,
audit or non-routine visit by any tax authority.
Penalties, interest
2.3 Within the past three years, no ▇▇▇ Group Company nor
any director or officer of any such company (in his capacity
as such) has paid or become liable to pay, to any tax
authority, any penalty, fine, surcharge or interest in
respect of tax (including in respect of any failure to make
any return, give any notice or supply any information to any
relevant tax authority, or any failure to pay tax on the due
date for payment).
Special arrangements
2.4 No tax authority has operated or agreed to operate any
special arrangement (being an arrangement which is not based
on relevant legislation or any published practice) in
relation to the affairs of either ▇▇▇ Group Company.
Withholdings
2.5 Each ▇▇▇ Group member has made all deductions and
retentions of or on account of tax as it was or is obliged
to make and all such payments of or on account of tax as
should have been made to any tax authority in respect of
such deductions or retentions.
Employees
3. All National Insurance contributions and sums payable
to the Inland Revenue under the P.A.Y.E. system due and
payable by either ▇▇▇ 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 to 203L of the Taxes Act and all regulations
made thereunder.
Company residence etc.
Residence
4. Each ▇▇▇ Group Company is and has at all times been
resident in the United Kingdom for tax purposes and is not
and has not been treated as resident in any other
jurisdiction for any tax purpose (including any double
taxation arrangement).
Value added tax
5.1 For the purposes of this paragraph 5 the expression VAT
legislation shall include the Value Added Tax ▇▇▇ ▇▇▇▇ 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 or any concession
referred to in the Disclosure Letter.
5.2 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;
(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 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; and
(e) 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.
Stamp duty
6. All documents in the possession or under the control of
a ▇▇▇ Group Company or to the production of which a ▇▇▇
Group Company is entitled which establish or are necessary
to establish the title of a ▇▇▇ Group Company to any
material asset have been duly stamped.
Capital Gains
7. No asset has been acquired by a ▇▇▇ Group Company in
the period of six years ending on the date of Agreement in
circumstances where Section 171 of the Taxation of
Chargeable Gains ▇▇▇ ▇▇▇▇ applied to the transfer and no
charge under section 179 of that Act will arise as a result
of the entry into or performance of this Agreement.
Transfer Pricing
8. Neither ▇▇▇ Group Company since the Accounts Date has
been party to a transaction in respect of which a direction
has been made or, so far as the Vendor is aware, is likely
to be made, by the Board of the Inland Revenue under section
770(2)(d) of the Taxes Act.
SCHEDULE 3
Properties
Freehold
Land lying to the south of Title number: DN371194
Castle Park Road, Whiddon Proprietor:▇▇▇▇▇▇ ▇. ▇▇▇ &
Valley, Barnstaple Co Limited
Land lying to the south of Title number: DN325946
▇▇▇▇▇▇▇▇▇ Road, Landkey Proprietor:▇▇▇▇▇▇ ▇. ▇▇▇ &
Co Limited
Land at ▇▇▇▇▇▇▇ Valley, Title number: DN279393
Barnstaple Proprietor:▇▇▇▇▇▇ ▇. ▇▇▇ &
Co Limited
Leasehold
Land buildings and premises Landlord: Devon County
situate at ▇▇▇▇▇▇▇ Valley, Council
Barnstaple Tenant: ▇▇▇▇▇▇ ▇. ▇▇▇ &
Co Limited
Term: 99 years from
1 July 1979
Rent: BP1 p.a
Land at ▇▇▇▇▇▇▇▇▇ Road, Landlord: Devon County
▇▇▇▇▇▇▇ Valley, Barnstaple Council
Tenant: ▇▇▇▇▇▇ ▇. ▇▇▇ &
Co Limited
Term: 1 July 1984 to 30
June 2078
Rent: BP1 p.a
Premises at ▇▇▇▇▇▇▇ Drive, Landlord: B Ford M A Ford
Barnstaple R Ford M R A
Ford
Tenant: ▇▇▇▇▇▇ ▇. ▇▇▇ &
Co Limited
Term: 15 years
commencing on 25
March 1997
Rent: BP80,000 p.a.
SCHEDULE 4
Specific Accounting Policies and Procedures to be used in
preparing the Net Asset Statement
Subject to the points listed below in this Schedule 4, the
Net Asset Statement will be prepared on the basis of the
accounting policies and procedures employed in producing the
Accounts:
(i) Tangible fixed assets will continue to be accounted for
on the basis of cost less accumulated depreciation;
(ii) no revaluation of Tangible fixed assets will take place
in the preparation of the Net Asset Statement; and
(iii) the expected useful economic lives and the
estimated residual values of the Tangible fixed assets
owned or leased by the Subsidiary as at the Accounts
Date will not be revised or changed as part of the
preparation of the Net Asset Statement;
(iv) reserves for all appropriate items, including Stocks
and Debtors shall be made on the same basis as in the
Accounts;
(v) all other adjustments or closing entries which were
made in connection with the preparation of the Balance
Sheet contained in the Accounts will be made in a
consistent manner in the preparation of the Net Asset
Statement; and
(vi) no credit shall be given for any increase in Net Assets
due to profit on sales to any Overseas Company to the
extent that such sales increased the inventory of goods
sold to the relevant Overseas Company by the Subsidiary
(the Inventory Level) of the relevant Overseas Company
to a level in excess of the equivalent Inventory Level
at 31 December 1997.
SCHEDULE 5
Tax Covenant
Interpretation
1.1 In this Schedule the following definitions shall have
the following meanings:
Business Day means a day (other than a Saturday) when banks
are open for the transaction of normal banking business in
London;
Purchaser's relief means a relief to the extent that it
either arises in respect of an event occurring or period
commencing after Completion, or was taken into account in
computing the provision for deferred tax in the Accounts or
in eliminating such provision, or was included in the
Accounts as an asset;
relief includes, unless the context otherwise requires, any
allowance, credit, deduction, exemption or set-off in
respect of any tax or relevant to the computation of any
income, profits or gains for the purposes of any tax, or any
right to repayment of or saving of tax, and any reference to
the use or set off of relief shall be construed accordingly;
Retained Group means the Vendor and any other company or
companies (other than the Company and the Subsidiary) which
either are or become, or have within the six years ending at
Completion been, subsidiaries of the Vendor or treated as
members of the same group as the Vendor for any tax purpose;
tax means corporation tax, advance corporation tax, income
tax, capital gains tax, inheritance tax, value added tax,
national insurance contributions, capital duty, stamp duty
reserve tax, duties of customs and excise, 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, imposts, duties, charges or withholdings in the
nature of taxation, 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 Completion of the
Company, the Subsidiary or the Purchaser (otherwise than
through the agency of the Vendor pursuant to paragraph 8 or
11));
tax authority means any taxing or other authority (whether
of the United Kingdom or elsewhere) competent to impose any
tax liability;
tax claim means the issue of any notice, demand, assessment,
letter or other document by or on behalf of any tax
authority or the taking of any other action by or on behalf
of any tax authority (including the imposition of any
withholding), from which notice, demand, assessment, letter,
document or action it appears that a tax liability may be
imposed on the Company or the Subsidiary;
tax liability means:
(a) a liability of the Company or the Subsidiary to make or
suffer an actual payment of tax; and
(b) the use or set off of any Purchaser's relief in
circumstances where, but for such use or set off, the
Company or the Subsidiary would have had an actual
liability to tax in respect of which the Purchaser
would have been able to make a claim against the Vendor
under this Schedule (the amount of the tax liability
for these purposes being deemed to be equal to the
amount of the actual liability to tax that is saved by
the use or set off of the Purchaser's relief); provided
that the Purchaser shall procure that reliefs other
than any Purchaser's relief are used, so far as
reasonably practicable, to offset any such actual
liability to tax, and if it cannot be determined
whether a Purchaser's relief or another relief is so
used, it shall be assumed that another relief is used
in priority to any Purchaser's relief;
1.2 Persons shall be treated as connected for the purposes
of this Schedule if they are connected within the meaning of
section 839 of the Taxes Act.
1.3 The headings in this Schedule shall not affect its
interpretation.
Covenant to pay
2. The Vendor hereby covenants with the Purchaser to pay
to the Purchaser, by way of adjustment to the consideration
for the sale of the Shares, an amount equivalent to any tax
liability arising in respect of, by reference to or in
consequence of:
(a) any income, profits or gains earned, accrued or
received on or before Completion;
(b) any event which occurred on or before Completion (other
than any tax liability arising in respect of profits
earned after Completion as a result of such event);
(c) any liability of the Company or the Subsidiary under
section 767A, 767B or 767AA of the Taxes Act in respect
of a tax liability of a member of the Retained Group.
Exclusions
3. The covenant contained in paragraph 2 shall not cover
any tax liability to the extent that:
(a) provision or reserve in respect of that tax liability
has been made in the Accounts, or the tax liability has
been noted in or was taken into account in the
preparation of the Accounts; or
(b) the tax liability was paid or discharged before
Completion; or
(c) the tax liability arises in respect of or by reference
to any income, profits or gains earned, accrued or
received in respect of the period, or any event
occurring, between the Accounts Date and Completion and
which arises in the ordinary course of business of the
Company or the Subsidiary provided that for this
purpose the following shall be deemed not to be in the
ordinary course of business if they otherwise would be:
(i) any disposal (or deemed disposal for any tax
purpose) of assets other than trading stock by the
Company or the Subsidiary;
(ii) any change in the use of an asset of the
Company or the Subsidiary;
(iii) anything which has the result of
requiring disposal value to be brought into
account, or which crystallises a balancing charge,
for capital allowances purposes (or has any
similar effect under the laws of any relevant
foreign jurisdiction);
(iv) anything relating to or involving the making
of a distribution for tax purposes or the
cancellation or reorganisation of share or loan
capital;
(v) the Company or Subsidiary ceasing or being
treated as ceasing to be a member of a group of
companies;
(vi) anything relating to a transaction or
arrangement or series of transactions or
arrangements undertaken which includes a step
having no commercial or business purpose apart
from the reduction, avoidance or deferral of a tax
liability; or
(vii) any transaction which is not entered
into on arm's length terms.
(d) the tax liability arises as a result of any change in
rates of tax made after Completion or of any change in
law or the published practice of any tax authority,
occurring after Completion; or
(e) the tax liability would not have arisen but for a
transaction, action or omission carried out or effected
by any of the Purchaser, the Company or the Subsidiary,
or any other person connected with any of them, at any
time after Completion, except that this exclusion shall
not apply where any such transaction, action or
omission:
(i) is carried out or effected by the Company or
the Subsidiary pursuant to a legally binding
commitment created on or before Completion or a
request of the Vendor pursuant to paragraph 8 or
11; or
(ii) is carried out or effected by the Company or
the Subsidiary in the ordinary course of business
of the Company or the Subsidiary as carried on at
Completion, provided that for this purpose the
following shall be deemed not to be in the
ordinary course of business if they otherwise
would be (with the effect that the exclusion
contained in this paragraph 3(e) shall apply):
(A) any disposal (or deemed disposal for any
tax purpose) of assets other than trading stock
by the Company or the Subsidiary;
(B) any change in the use of an asset of the
Company or the Subsidiary;
(C) anything which has the result of requiring
disposal value to be brought into account, or
which crystallises a balancing charge, for
capital allowances purposes (or has any similar
effect under the laws of any relevant foreign
jurisdiction);
(D) anything relating to or involving the
making of a distribution for tax purposes or
the cancellation or reorganisation of share or
loan capital;
(E) the Company or Subsidiary ceasing or being
treated as ceasing to be a member of a group of
companies;
(F) anything relating to a transaction or
arrangement or series of transactions or
arrangements undertaken after Completion which
includes a step having no commercial or
business purpose apart from the reduction,
avoidance or deferral of a tax liability; or
(f) the tax liability arises as a result of a change after
Completion in any accounting policy, or the length of
any accounting period for tax purposes, of the Company
or the Subsidiary; or
(g) such tax liability arises as a result of the Company or
the Subsidiary failing (otherwise than by reason of any
default of the Vendor) to submit the returns and
computations required to be made by them or not
submitting such returns and computations within the
appropriate time limits or submitting such returns and
computations otherwise than on a proper basis, in each
case after Completion; or
(h) the tax liability arises as a result of the failure of
the Purchaser to comply with its obligations contained
in paragraph 8 or 11 hereof; or
(i) any relief other than a Purchaser's relief is available
to the Company or the Subsidiary to set against or
otherwise mitigate the tax liability (including but not
limited to any relief available under any of
sections 393, 393A, 402 to 413, or section 240 of the
Taxes Act or section 102 of the Finance Act 1989) (and
so that (a) for this purpose any relief arising in
respect of an accounting period falling partly before
and partly after Completion shall be apportioned on a
time basis, unless some other basis is more reasonable
and (b) any relief that is so available in relation to
more than one tax liability to which this Schedule
applies shall be deemed, so far as possible, to be used
in such a way as to reduce to the maximum extent
possible the Vendor's total liability hereunder); or
(j) the tax liability would not have arisen but for:
(i) the making of a claim, election, surrender or
disclaimer, the giving of a notice or consent, or
the doing of any other thing under the provisions
of any enactment or regulation relating to tax, in
each case after Completion and by the Purchaser,
the Company, the Subsidiary or any person
connected with any of them and otherwise than at
the request of the Vendor; or
(ii) the failure or omission on the part of the
Company or the Subsidiary to make any such valid
claim, election, surrender or disclaimer, or to
give any such notice or consent or to do any other
such thing, either as the Vendor may require in
respect of periods or matters for which the Vendor
has conduct under paragraph 11 or, in respect of
periods or matters for which the Vendor does not
have conduct, in circumstances where the making,
giving or doing of which was taken into account in
the preparation of the Accounts and has been
notified to the Purchaser in writing within 3
months of Completion; or
(k) the tax liability arises in respect of a prepayment
received in the ordinary course of business; or
(l) the tax liability would not have arisen but for the
winding up of, or the cessation of any trade or
business by, the Company or the Subsidiary after
Completion, or any change in the nature or conduct of
such trade or business after Completion; or
(m) the tax liability arises under Regulations 107 or 108
or Part XV of the Value Added Tax Regulations 1995 by
reason of any event or change in circumstances
occurring after Completion.
3.2 The Vendor shall have no liability to the Purchaser
under any part of this Agreement in respect of any
non-availability, inability to use, or loss or restriction
of any relief (failure of relief) where such failure of
relief does not give rise to a tax liability to which
paragraph 2 applies.
Costs and expenses
4. The covenant contained in this Schedule shall extend to
all reasonable costs and expenses properly incurred by the
Purchaser in connection with a successful claim made under
this Schedule, or in satisfying or settling any tax
liability in accordance with paragraph 8.
Double recovery
5. The Purchaser shall not be entitled to recover any
amount pursuant to this Schedule in respect of any claim to
the extent that the Purchaser, the Company or the Subsidiary
has already recovered any amount in respect of such claim
under the Warranties or pursuant to any other agreement with
the Vendor or any company connected with the Vendor, or to
the extent that recovery has already been made under this
Schedule in respect of the same subject matter.
Tax Refunds
6.1 The Purchaser shall promptly notify the Vendor of any
right to repayment or actual repayment of tax to which the
Company or the Subsidiary is or becomes entitled or receives
in respect of an event occurring or period (or part period)
falling prior to Completion (including any repayment
attributable to the surrender of group relief or advance
corporation tax in respect of a period ending on or before
Completion whenever such surrender is effected), where or to
the extent that such right or repayment was not included in
the Accounts as an asset and is not a payment or relief to
which paragraph 10 below applies (a tax refund).
6.2 Any tax refund actually obtained (less any reasonable
costs of obtaining it but including any interest or
repayment supplement) shall be dealt with as follows:
(a) the amount of the tax refund shall be set against any
payment then due from the Vendor under this Agreement;
and
(b) to the extent that there is an excess, a payment shall
be made to the Vendor equal to the aggregate of any
previous payment or payments previously made by the
Vendor under this Agreement (and not previously
refunded under this Agreement) up to the amount of the
excess (any remaining excess being carried forward to
offset any further payment that may become due from the
Vendor under this Agreement).
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ etc.
7.1 The Purchaser hereby covenants with the Vendor to pay
to the Vendor, by way of adjustment to the consideration for
the sale of the Shares, an amount equivalent to:
(a) any tax for which the Vendor or any other person
falling within section 767A(2) of the Taxes Act becomes
liable by virtue of the operation of section 767A and
767B of the Taxes Act in circumstances where the
taxpayer company (as referred to in section 767A(1)) is
the Company or the Subsidiary;
(b) any tax for which the Vendor or any other person
falling within section 767AA(4) of the Taxes Act
becomes liable by virtue of the operation of
section 767AA of the Taxes Act in circumstances where
the transferred company (as referred to in
section 767AA(1)(a)) is the Company or the Subsidiary
(and for these purposes references to section 767AA are
references to the draft of that section published on
17 February 1998, as (if relevant) subsequently amended
and as subsequently enacted, and in the event of
amendments prior to enactment this paragraph shall be
construed with any necessary modifications required to
give it effect); and
(c) any other tax for which the Vendor or any person
connected with it becomes liable as a result of the
failure by the Company or the Subsidiary to discharge
it (other than a tax liability covered by the covenant
in paragraph 2).
7.2 The covenant contained in paragraph 7.1 shall:
(a) extend to any costs reasonably and properly incurred by
the Vendor or such other person in connection with such
tax or a claim under paragraph 7.1;
(b) not apply to tax to the extent that the Purchaser could
claim payment in respect of it under paragraph 2,
except to the extent a payment has been made pursuant
to paragraph 2 and the tax to which it relates was not
paid by the Company or the Subsidiary; and
(c) not apply to tax which has been recovered under
section 767B(2) of the Taxes Act or any other relevant
statutory provision (and the Vendor shall procure that
no such recovery is sought to the extent that payment
is made hereunder).
7.3 Paragraphs 8.1, 8.2 and 9 (conduct of disputes and due
date for payment) shall apply to the covenant contained in
paragraph 7.1 as they apply to the covenants contained in
paragraph 2, replacing references to the Vendor by the
Purchaser (and vice versa) and making any other necessary
modifications.
Notification of claims and conduct of disputes
8.1 If the Purchaser, the Company or the Subsidiary become
aware of any tax claim which could give rise to a liability
for the Vendor under this Schedule (whether alone or in
combination with other claims), the Purchaser shall give
notice to the Vendor of that tax claim (including reasonably
sufficient details of such tax claim, the due date for any
payment and the time limits for any appeal, and so far as
practicable the amount of the claim under this Schedule in
respect thereof) as soon as possible (and in any event not
more than 15 days after the Purchaser, the Company or the
Subsidiary becomes aware of such claim) and shall take (or
procure that the Company or the Subsidiary shall take) such
action as the Vendor may reasonably request to avoid,
dispute, resist, appeal, compromise or defend the tax claim
and any adjudication in respect thereof. The Vendor shall
have the right (if it wishes) to control any proceedings
taken in connection with such action, and shall in any event
be kept fully informed of any actual or proposed
developments (including any meetings) and shall be provided
with copies of all correspondence and documentation relating
to such tax claim or action, and such other information,
assistance and access to records and personnel as it
reasonably requires.
8.2 The Vendor shall reimburse to the Purchaser its
reasonable costs and expenses properly incurred in
connection with any such action or proceedings as are
referred to in paragraph 8.1.
8.3 Subject to paragraph 8.4, the Purchaser shall procure
that no tax claim, action or issue in respect of which the
Vendor could be required to make a payment under this
Schedule is settled or otherwise compromised without the
Vendor's prior written consent, such consent not to be
unreasonably withheld, and the Purchaser shall, and shall
procure that the Company and the Subsidiary and any of their
respective advisers shall, not submit any correspondence or
return or send any other document to any tax authority in
respect of pre-Completion tax affairs (as defined in
paragraph 11.1) where the Purchaser or any such person is
aware or could reasonably be expected to be aware that the
effect of submitting such correspondence or return or
sending such document would or could be to put such tax
authority on notice of any matter which could give rise to,
or could increase, a claim under this Schedule, without
first affording the Vendor a reasonable opportunity to
comment thereon and without taking account of such comments
so far as it is reasonable to do so.
8.4 If the Vendor does not request the Purchaser to take
any appropriate action within 30 days of notice to the
Vendor, the Purchaser shall be free to satisfy or settle the
relevant tax liability on such terms as it may reasonably
think fit.
8.5 The preceding provisions of this paragraph 8 shall
apply, as they apply to a tax claim, to any document issued
by a tax authority from which it appears that any amount
surrendered, or which is in the future surrendered, by way
of group relief (pursuant to Chapter IV of Part X of the
Taxes Act) by the Company or any Subsidiary to any member of
the Retained Group is or may be reduced or eliminated either
by being determined in a smaller amount, or by being the
subject of a direction reducing such amount (pursuant to
section 41A or 41B of the Taxes Management Act 1970), and so
that:
(a) references to claims under, amounts due, or payments to
be made under this Schedule shall be replaced by
appropriate references to such reduction or
elimination;
(b) the reference to the relevant tax liability in
paragraph 8.4 shall be replaced by a reference to such
determination or reduction being accepted without any
appeal being pursued; and
(c) the rights of the Vendor under paragraph 8.1 shall
extend to requiring the relevant surrendering company
to make an adjustment as referred to in section 96(3)
of the Finance ▇▇▇ ▇▇▇▇ on such terms as the Vendor
thinks fit.
Due date of payment and interest
9.1 Subject to paragraph 9.2 the Vendor shall pay to the
Purchaser any amount payable under this Schedule on or
before the date which is the later of the date ten Business
Days after demand is made therefor by the Purchaser and two
Business Days before the first date on which the tax in
question becomes recoverable by the tax authority demanding
the same. Provided that, if the date on which the tax can
be recovered is deferred following application to the
relevant tax authority, the date for payment by the Vendor
shall be two Business Days before such later date when the
amount of tax is finally and conclusively determined. For
this purpose, an amount of tax shall be deemed to be finally
determined when, in respect of such amount, an agreement
under section 54 of the Taxes Management ▇▇▇ ▇▇▇▇ or any
legislative provision corresponding to that section is made
or a decision of a court or tribunal is given from which
either no appeal lies or in respect of which no appeal is
made within the prescribed time limit. The Vendor may, with
the Purchaser's consent, not to be unreasonably withheld or
delayed, make a direct payment in respect of the tax
liability in question to the relevant tax authority
(including through use of certificates of tax deposit or the
equivalent) and the Vendor's liability to the Purchaser
shall be treated as reduced or eliminated accordingly.
9.2 Where a claim under this Schedule relates to the use or
set off of a Purchaser's relief, the Vendor shall pay to the
Purchaser the amount due under this Schedule in respect
thereof on the later of the date which is two Business Days
before the first date on which tax which would not have been
payable but for such use or set off becomes recoverable by
the tax authority demanding the same, and ten Business Days
after demand is made therefor by the Purchaser, such demand
to be accompanied by a copy of a certificate from the
auditors of the Purchaser or the Company or the Subsidiary
(obtained or procured to be obtained by and at the expense
of the Purchaser) that the Vendor has a liability of a
stated amount in respect of such claim and that tax has, or
will on a specified date, become payable as aforesaid, and
by reasonably sufficient evidence of such use or set off and
of such tax liability.
9.3 Any sum not paid by the Vendor on the due date for
payment specified in paragraph 9.1 or 9.2 shall bear
interest (which shall accrue from day to day after as well
as before any judgement for the same) at a rate of 2 per
cent. per annum over the base rate of National Westminster
Bank plc from the due date to and including the day of
actual payment of such sum, provided that such interest
shall not accrue to the extent that the Vendor's liability
under paragraph 2 or paragraph 4 extends to interest or
penalties arising after the due date. Any interest due
under this paragraph shall be paid on the demand of the
Purchaser on or following the date of payment of such sum.
Recovery from third parties
10.1 If any payment is made by the Vendor under this
Schedule in respect of a tax liability and the Purchaser,
the Company or Subsidiary (or any person connected with any
of them) either receives, or is entitled or may be entitled
either immediately or at some future date to recover or
obtain, from any person (other than the Purchaser, the
Company or Subsidiary or any such connected person) a
payment or relief in respect of the tax liability in
question, then:
(a) the Purchaser shall notify the Vendor of that fact as
soon as possible and if so required by the Vendor shall
take (or shall procure that the Company or Subsidiary
or other person concerned shall take) such action as
the Vendor may reasonably request to enforce such
recovery or to obtain such payment or relief (keeping
the Vendor fully informed of the progress of any action
taken and providing it with copies of all relevant
correspondence and documentation); and
(b) if the Purchaser, the Company or the Subsidiary or
other person concerned receives or obtains a payment or
relief in respect of the tax liability in question, the
Purchaser shall pay to the Vendor the amount received
or the amount that the Purchaser, the Company or the
Subsidiary or other person concerned will save by
virtue of the payment or the relief (less any
reasonable costs of recovering or obtaining such
payment or relief and any tax actually suffered
thereon) (the Benefit) to the extent that the amount of
the Benefit does not exceed the aggregate payments
previously made by the Vendor in respect of all
Relevant Claims, and except where any amount so saved
would otherwise have given rise to a claim under this
Schedule (in which event no such claim shall be made).
Any amount of the Benefit not so paid to the Vendor
shall be carried forward and set off against any future
Claims under this Schedule.
10.2 Any payment required to be made by the Purchaser
pursuant to paragraph 10.1 shall be made:
(a) in a case where the Purchaser, the Company or the
Subsidiary or other person concerned receives a
payment, within five Business Days of the receipt
thereof; and
(b) in a case where the Purchaser, the Company or the
Subsidiary or other person concerned obtains a relief,
on or before the date on which tax would have become
recoverable by the appropriate tax authority but for
the use of such relief.
10.3 The Purchaser shall procure that any such relief as is
referred to in paragraph 10.2(b) is used in priority to any
other relief, and in the absence of evidence to the contrary
it shall be deemed to be so used. The Vendor shall be
entitled to require that the Company's and/or Subsidiary's
or other person's auditors shall certify the amount and date
of use of such relief for the purposes of this paragraph 10.
10.4 Any sum not paid by the Purchaser on the due date of
payment specified in paragraph 10.2 shall bear interest
(which shall accrue from day to day after as well as before
any judgement for the same) at a rate per annum equal to the
rate of 2 per cent. per annum over the base rate of National
Westminster Bank plc from the due date to and including the
day of actual payment of such sum. Such interest shall be
paid on the demand of the Vendor.
Tax conduct
Interpretation
11.1 In this paragraph 11 and in paragraph 12:
accounting period means any period by reference to which any
income, profits or gains, or any other amounts relevant for
the purposes of tax, are measured or determined;
pre-Completion tax affairs means the tax affairs of the
Company and the Subsidiary for which the Vendor is
responsible under this paragraph 11;
tax documents means the tax returns, claims and other
documents which the Vendor is required to prepare on behalf
of the Company and the Subsidiary under paragraph 11.2(a)
and (b);
tax return means any return required to be made to any tax
authority of income, profits or gains or of any other
amounts or information relevant for the purposes of tax,
including any related accounts, computations and
attachments; and
time limit means the latest date on which a tax document can
be executed or delivered to a relevant tax authority either
without incurring interest or a penalty, or in order to
ensure that such tax document is effective.
Rights and Obligations of the Vendor
11.2 Subject to and in accordance with the provisions of
this paragraph the Vendor or its duly authorised agents
shall, in respect of all accounting periods ending on or
before Completion, and at its own cost:
(a) prepare and submit the tax returns of the Company and
the Subsidiary;
(b) prepare on behalf of the Company and the Subsidiary all
claims, elections, surrenders, disclaimers, notices and
consents for the purposes of tax; and
(c) (subject to paragraph 8) deal with all matters relating
to tax which concern or affect the Company or the
Subsidiary, including the conduct of all negotiations
and correspondence and the reaching of all agreements
relating thereto or to any tax documents.
11.3 Except with the Purchaser's written consent, the Vendor
shall not, and shall procure that its duly authorised agents
do not, prepare or submit any tax document (or any similar
document relating to the tax affairs of the Vendor or any
company under its control) which comprises or includes a
claim, election, surrender, disclaimer, notice or consent,
or withdraw any such item unless the making, giving or
withdrawal of it (as the case may be) either has been taken
into account in preparing the Accounts, or could not have
any adverse effect on the liability to tax of the Company or
the Subsidiary in respect of any accounting period ending
after Completion.
11.4 The Vendor or its duly authorised agent shall deliver
all tax documents which are required to be signed by or on
behalf of the Company or the Subsidiary to the Purchaser for
authorisation, signing and submission to the relevant tax
authority. If a time limit applies in relation to any tax
document, the Vendor shall ensure that the Purchaser
receives the tax document no later than 15 business days
before the expiry of the time limit.
Obligations of the Purchaser
11.5 The Purchaser shall procure that:
(a) the Vendor and its duly authorised agents are afforded
such access (including the taking of copies) to the
books, accounts and records of the Company and the
Subsidiary and such other assistance as it or they
reasonably require to enable the Vendor to discharge
its obligations under paragraph 11.2 and to enable the
Vendor and any member of the Retained Group to comply
with its own tax obligations or facilitate the
management or settlement of its own tax affairs;
(b) the Vendor is promptly sent a copy of any communication
from any tax authority insofar as it relates to the
pre-Completion tax affairs;
(c) there is given to such person or persons as may for the
time being be nominated by the Vendor authority to
conduct pre-Completion tax affairs, and that such
authority is confirmed to any relevant tax authority;
11.6 The Purchaser shall (subject to paragraph 11.7 below)
be obliged to procure that the Company and the Subsidiary
shall cause any tax document delivered to it under
paragraph 11.4 to be authorised, signed and submitted to the
appropriate tax authority without delay (and in any event
within any relevant time limit), and without amendment.
Rights of the Purchaser
11.7 The Purchaser shall be under no obligation to procure
the authorisation, signing, or submission to a tax authority
of any tax document delivered to it under paragraph 11.4
which it considers in its reasonable opinion to be false,
misleading, incomplete or inaccurate in any material
respect, but for the avoidance of doubt shall be under no
obligation to make any enquiry as to the completeness or
accuracy thereof and shall be entitled to rely entirely on
the Vendor and its agents.
11.8 The Vendor shall procure that:
(a) the Purchaser is kept fully informed of the progress of
all matters relating to the pre-Completion tax affairs;
and
(b) the Purchaser promptly receives copies of all material
written correspondence with any tax authority insofar
as it is relevant to the pre-Completion tax affairs.
Conduct of other Tax Affairs
12.1 Subject to paragraph 8, the Purchaser or its duly
authorised agents shall have sole conduct of all tax affairs
of the Company and the Subsidiary which are not
pre-Completion tax affairs and shall be entitled to deal
with such tax affairs in any way in which it, in its
absolute discretion, considers fit.
12.2 Notwithstanding the provisions of paragraph 12.1 above
the Purchaser shall not, and shall procure that the Company
and the Subsidiary shall not, without the written consent of
the Vendor, take any action under the provisions of any
enactment or regulation relating to tax if such action would
adversely affect the liability of the Vendor under this
Schedule.
SIGNED by )
for and on behalf of ) ▇▇▇▇▇ ▇▇▇▇▇▇
HOECHST AG )
in the presence of: ▇▇▇▇▇▇ ▇▇▇▇▇▇ )
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
SIGNED by )
for and on behalf of ) ▇▇▇▇▇▇ ▇▇▇▇
ALPHARMA (UK) LIMITED ) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
in the presence of: ▇▇▇▇▇▇ ▇▇▇▇▇▇ )
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
SIGNED by )
for and on behalf of ) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
ALPHARMA INC. ) ▇▇▇▇▇▇ ▇▇▇▇▇▇
in the presence of: ▇▇▇▇▇▇ ▇▇▇▇▇▇ )
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
ANNEXURES
ANNEX A
Transfer Agreement for NorCox Pharma AB
THIS AGREEMENT is made on 1998
Between
HOECHST AKTIENGESELLSCHAFT a company incorporated in and
under the laws of Germany with legal domicile at D-65926
Frankfurt am Main and registered at the commercial Register
of the local court Frankfurt am Main Abteilung B, under
registered number 14500 (the Vendor); and
- with registered number - whose (registered) office is at
......... (the Purchaser).
Whereas
(A) The Vendor and the Purchaser are to execute an
agreement (the Main Agreement) pursuant to which the Vendor
agrees to sell to the Purchaser the entire issued share
capital of ▇▇▇ Investments Limited. In addition to entering
into the Main Agreement, the parties hereto have executed
this Agreement, together with three other transfer
agreements, in consideration of the Purchaser paying to the
Vendor GBP (the Consideration), being that part of the
Purchase Price (as defined below) which is referable to the
sale of the entire issued share capital of NorCox Pharma AB
(the Company).
(B) In this Agreement, the Vendor agrees to sell and the
Purchaser agrees to purchase the entire issued share capital
of the Company (the Shares) for the Consideration and upon
the terms set out in this Agreement and, to the extent
relevant, in the Main Agreement.
(C) This Agreement shall come into effect simultaneously
with completion of the Main Agreement.
It is agreed as follows:
Definitions
In this Agreement, except so far as the context otherwise
requires, the following terms shall have the following
meanings:
Limitations means, mutatis mutandis, the limitations on the
Vendor's liability set out in clause 7 of the Main
Agreement;
Purchase Price shall bear the meaning attributed thereto in
clause 2.2 of the Main Agreement; and
Vendor's Group means the Vendor, any subsidiary of the
Vendor, any holding company of the Vendor and any subsidiary
of such holding company from time to time where subsidiary
and holding company shall be construed in accordance with
sections 736 and 736A of the Companies ▇▇▇ ▇▇▇▇.
Condition precedent
1. Completion of this Agreement shall be conditional upon
completion of the Main Agreement in accordance with the
provisions of clause 3 thereof.
Sale of the shares and consideration
2.1 The Vendor agrees to sell (or procure the sale of), and
the Purchaser hereby agrees to purchase, the Shares as at
and with effect from the date of this Agreement free from
all charges, liens, encumbrances, equities, claims or other
third party rights (including, without limitation, rights of
pre-emption) of any nature whatsoever, together with all
rights which now are, or at any time hereafter may become,
attached to them including, without limitation, the right to
receive all dividends and other distributions declared, made
or paid on or after the date of this Agreement.
2.2 The Consideration shall be satisfied by the Purchaser
discharging its obligations pursuant to clause 3.3(a) of the
Main Agreement.
Completion
3.1 The sale and purchase of the Shares shall be completed
simultaneously with completion of the Main Agreement,
whereupon the events set out in the following provisions of
this clause 3 shall take place.
3.2 The Vendor shall deliver or cause to be delivered to
the Purchaser:
(a) share certificates representing all the shares duly
endorsed into the name of the Purchaser or its
nominees.
(b) the Share Register of the Company
(c) all those documents evidencing the revocation of any
existing mandates and powers of attorney given by the
Company;
(d) notice of resignation by the existing Board members.
Corporate Documents
4. The Registration Certificate and the Articles of
Association, as set out in Appendix ... reflect the present
status of the Company, and all documentation concerning the
Company, such as the minutes from board meetings and
shareholders' meetings as well as books and accounts, are in
the possession and safe custody of the Company and will be
freely available to the Purchaser.
Warranties
5. Subject to the Limitations, the Vendor warrants to the
Purchaser as at the date hereof in the terms of the
warranties set out in the Schedule.
Waiver
6. The Purchaser covenants that the next ordinary
shareholders' meeting of the Company will pass the necessary
resolutions, whereby the present directors will be
discharged from liability with respect to their
administration of the Company's affairs, provided, however,
that the Company's auditor will approve such discharge from
liability.
Entire agreement
7. This Agreement and, to the extent relevant, the Main
Agreement set out the entire agreement and understanding
between the parties in respect of the sale and purchase of
the Shares. It is agreed that:
(a) no party has entered into this Agreement in reliance
upon any representation, warranty or undertaking of any
other party which is not expressly set out or referred
to in this Agreement.
(b) a party may claim in contract for breach of warranty
under this Agreement but, subject to clause 5(c), shall
have no claim or remedy under this Agreement in respect
of misrepresentation (whether negligent or otherwise,
and whether made prior to, and/or in, this Agreement)
or untrue statement made by any other party; and
(c) This clause shall not exclude any liability for
fraudulent misrepresentation.
Counterparts
8. This Agreement may be entered into in any number of
counterparts and by the parties to it on separate
counterparts, each of which, when executed and delivered,
shall be an original, but all the counterparts shall
together constitute one and the same instrument.
Invalidity
9. If any provision of this Agreement is held to be
invalid or unenforceable, then such provision shall (so far
as it is invalid or unenforceable) be given no effect and
shall be deemed not to be included in this Agreement but
without invalidating any of the remaining provisions of this
Agreement. The parties shall then use all reasonable
endeavours to replace the invalid or unenforceable provision
by a valid provision the effect of which is as close as
possible to the intended effect of the invalid or
unenforceable provision.
Assignment
10. Neither of the parties shall, without the prior written
consent of the other, be entitled to assign the benefit or
burden of this Agreement in whole or in part save that the
Vendor may assign its rights under this Agreement to any
member of the Vendor's Group.
Variation
11. No variation of any of the terms of this Agreement (or
of any other documents referred to herein) shall be valid
unless it is in writing and signed by or on behalf of each
of the parties hereto. The expression variation shall
include any variation, supplement, deletion or replacement
however effected.
Governing law
12.1 This Agreement is governed by, and shall be construed
in accordance with the laws of England.
12.2 Each of the parties hereby irrevocably submits, for the
benefit of the other, to the non-exclusive jurisdiction of
the courts of England.
In witness whereof this Agreement has been signed by and on
behalf of the parties on the day and year first before
written.
SIGNED by )
for and on the behalf of )
HOECHST AG )
SIGNED by )
for and on the behalf of )
................................... )
SCHEDULE
The Warranties
The Shares
1. All of the Shares are fully-paid up, and the Vendor is
the sole legal and beneficial owner of the Shares free from
all security interests, options, equities, claims or other
third party rights (including, without limitation, rights of
pre-emption) of any nature whatsoever. The Vendor has the
legal right to dispose of the Shares.
Product Licences
2. The Appendix contains a list of all product licences
held or beneficially owned by the Company or, in the case of
applications for product licences, of which the Company is
the applicant.
ANNEX B
Transfer Agreement for NorCox Pharma AS
THIS AGREEMENT is made on 1998
Between
HOECHST AKTIENGESELLSCHAFT a company incorporated in and
under the laws of Germany with legal domicile at D-65926
Frankfurt am Main and registered at the commercial Register
of the local court Frankfurt am Main Abteilung B, under
registered number 14500 (the Vendor); and
- with registered number - whose (registered) office is at
......... (the Purchaser).
Whereas
(A) The Vendor and the Purchaser are to execute an
agreement (the Main Agreement) pursuant to which the Vendor
agrees to sell to the Purchaser the entire issued share
capital of ▇▇▇ Investments Limited. In addition to entering
into the Main Agreement, the parties hereto have executed
this Agreement, together with three other transfer
agreements, in consideration of the Purchaser paying to the
Vendor GBP (the Consideration), being that part of the
Purchase Price (as defined below) which is referable to the
sale of the entire issued share capital of NorCox Pharma AS
(the Company).
(B) In this Agreement, the Vendor agrees to sell and the
Purchaser agrees to purchase the entire issued share capital
of the Company (the Shares) for the Consideration and upon
the terms set out in this Agreement and, to the extent
relevant, in the Main Agreement.
(C) This Agreement shall come into effect simultaneously
with completion of the Main Agreement.
It is agreed as follows:
Definitions
In this Agreement, except so far as the context otherwise
requires, the following terms shall have the following
meanings:
Limitations means, mutatis mutandis, the limitations on the
Vendor's liability set out in clause 7 of the Main
Agreement;
Purchase Price shall bear the meaning attributed thereto in
clause 2.2 of the Main Agreement; and
Vendor's Group means the Vendor, any subsidiary of the
Vendor, any holding company of the Vendor and any subsidiary
of such holding company from time to time where subsidiary
and holding company shall be construed in accordance with
sections 736 and 736A of the Companies ▇▇▇ ▇▇▇▇.
Condition precedent
1. Completion of this Agreement shall be conditional upon
completion of the Main Agreement in accordance with the
provisions of clause 3 thereof.
Sale of the shares and consideration
2.1 The Vendor agrees to sell (or procure the sale of), and
the Purchaser hereby agrees to purchase, the Shares as at
and with effect from the date of this Agreement free from
all charges, liens, encumbrances, equities, claims or other
third party rights (including, without limitation, rights of
pre-emption) of any nature whatsoever, together with all
rights which now are, or at any time hereafter may become,
attached to them including, without limitation, the right to
receive all dividends and other distributions declared, made
or paid on or after the date of this Agreement.
2.2 The Consideration shall be satisfied by the Purchaser
discharging its obligations pursuant to clause 3.3(a) of the
Main Agreement.
Completion
3.1 The sale and purchase of the Shares shall be completed
simultaneously with completion of the Main Agreement,
whereupon the events set out in the following provisions of
this clause 3 shall take place.
3.2 (New) The Vendor shall deliver or cause to be delivered
to the Purchaser:
(a) share certificates representing all the shares duly
endorsed into the name of the Purchaser or its
nominees.
(b) the Certificate of Incorporation and the Share Register
of the Company with an updated registration of
outstanding shares.
(c) all those documents evidencing the revocation of any
existing mandates and powers of attorney given by the
Company;
(d) notice of resignation by the existing Board members.
Corporate Documents
4. All minute books (protocols) from the Board meetings
and Shareholders Meetings as well as all other statutory
documents, accounts, auditors reports, as well as all
agreements with shareholders (if any), are in the possession
and safe custody of the Company and will be freely available
to the Company.
Warranties
5. Subject to the Limitations, the Vendor warrants to the
Purchaser as at the date hereof in the terms of the
warranties set out in the Schedule.
Waiver
6. The Purchaser waives their right to advance liability
towards the members of the Board and the Purchaser covenants
that the next ordinary shareholders' meeting of the Company
will pass the necessary resolutions, whereby the present
directors will be discharged from liability with respect to
their administration of the Company's affairs.
Entire agreement
7. This Agreement and, to the extent relevant, the Main
Agreement set out the entire agreement and understanding
between the parties in respect of the sale and purchase of
the Shares. It is agreed that:
(a) no party has entered into this Agreement in reliance
upon any representation, warranty or undertaking of any
other party which is not expressly set out or referred
to in this Agreement.
(b) a party may claim in contract for breach of warranty
under this Agreement but, subject to clause 5(c), shall
have no claim or remedy under this Agreement in respect
of misrepresentation (whether negligent or otherwise,
and whether made prior to, and/or in, this Agreement)
or untrue statement made by any other party; and
(c) This clause shall not exclude any liability for
fraudulent misrepresentation.
Counterparts
8. This Agreement may be entered into in any number of
counterparts and by the parties to it on separate
counterparts, each of which, when executed and delivered,
shall be an original, but all the counterparts shall
together constitute one and the same instrument.
Invalidity
9. If any provision of this Agreement is held to be
invalid or unenforceable, then such provision shall (so far
as it is invalid or unenforceable) be given no effect and
shall be deemed not to be included in this Agreement but
without invalidating any of the remaining provisions of this
Agreement. The parties shall then use all reasonable
endeavours to replace the invalid or unenforceable provision
by a valid provision the effect of which is as close as
possible to the intended effect of the invalid or
unenforceable provision.
Assignment
10. Neither of the parties shall, without the prior written
consent of the other, be entitled to assign the benefit or
burden of this Agreement in whole or in part save that the
Vendor may assign its rights under this Agreement to any
member of the Vendor's Group.
Variation
11. No variation of any of the terms of this Agreement (or
of any other documents referred to herein) shall be valid
unless it is in writing and signed by or on behalf of each
of the parties hereto. The expression variation shall
include any variation, supplement, deletion or replacement
however effected.
Governing law
12.1 This Agreement is governed by, and shall be construed
in accordance with the laws of England.
12.2 Each of the parties hereby irrevocably submits, for the
benefit of the other, to the non-exclusive jurisdiction of
the courts of England.
In witness whereof this Agreement has been signed by and on
behalf of the parties on the day and year first before
written.
SIGNED by )
for and on the behalf of )
HOECHST AG )
SIGNED by )
for and on the behalf of )
................................... )
ANNEX C
Transfer Agreement for ▇▇▇ Pharma Belgium N.V.
May 1998
HOECHST AG
ALPHARMA (U.K.) LIMITED
ALPHARMA INC.
AGREEMENT
for the sale and purchase of the issued share capital of
▇▇▇ Pharma Belgium S.A./N.
THIS AGREEMENT is made on May 1998
Between
HOECHST AKTIENGESELLSCHAFT a company incorporated in and
under the laws of Germany with legal domicile at D-65926
Frankfurt am Main and registered at the commercial Register
of the local court Frankfurt am Main Abteilung B, under
registered number 14500 (the Vendor); and
ALPHARMA (UK) LIMITED (registered no. 3557686) a company
incorporated in and under the laws of England and Wales
whose registered office is at ▇▇▇▇▇▇▇ Valley, Barnstaple,
Devon EX32 8NS, England (the Purchaser); and
ALPHARMA INC. a company incorporated in and under the laws
of Delaware whose principal place of business is at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ (Alpharma).
Whereas
(A) ▇▇▇ Pharma Belgium S.A./N.V. (the Company) is a limited
liability company ("societe anonyme"/"naamloze
vennootschap") incorporated in Belgium, having its
registered office at 155 rue Colonel ▇▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, registered with the Register of
Commerce of Brussels under nr. 253.092, with an issued share
capital of BEF twelve million/12.000.000, fully paid up,
represented by ▇▇. ▇. ▇▇▇, ▇▇. ▇. ▇▇▇▇▇▇ and ▇▇. ▇. ▇▇▇▇▇,
with registered shares numbered 1 to 19.800 with/without
indication of nominale value (the Shares).
(B) The Vendor and Purchaser are to execute an agreement
(the Main Agreement) pursuant to which the Vendor agrees to
sell to the Purchaser the entire issued share capital of ▇▇▇
Investments Limited. In addition to entering into the Main
Agreement, the parties hereto have executed this Agreement,
together with three other transfer agreements, in
consideration of the Purchaser paying to the Vendor BP (the
Consideration), being that part of the Purchase Price (as
defined below) which is referable to the sale of the entire
issued share capital of the Company.
(B) In this Agreement, the Vendor agrees to sell and the
Purchaser agrees to purchase the entire issued share capital
of the Company (the Shares) for the Consideration and upon
the terms set out in this Agreement and, to the extent
relevant, in the Main Agreement.
(C) This Agreement shall come into effect simultaneously
with completion of the Main Agreement.
It is agreed as follows:
Definitions
In this Agreement, except so far as the context otherwise
requires, the following terms shall have the following
meanings:
Agreement means the Agreement for the sale and purchase of
the issued share capital of ▇▇▇ Pharma Belgium S.A./N.V.,
entered into between the Vendor and the Purchaser on
1998, substantially in the form of Annex C of the Annexes to
the Main Agreement;
BEF means Belgian Francs;
Company means ▇▇▇ Pharma Belgium N.V./S.A., details of which
are set out in Schedule 1 hereto;
Main Agreement means the Agreement for the sale and purchase
of the issued share capital of ▇▇▇ Investments Limited,
entered into between the Vendor an d the Purchaser on
April 1998;
Limitations means, mutatis mutandis, the limitations on the
Vendor's liability set out in clause 7 of the Main
Agreement;
Parties means the Purchaser and the Vendor;
Purchase Price shall bear the meaning attributed thereto in
clause 2..2 of the Main Agreement;
Security Interest means any security interest of any nature
whatsoever including, without limitation, any mortgage,
hypotheek/hypotheque, charge, pledge, lien, assignment by
way of security, voorrecht/privilege, beslag/saisie or other
incumbrance;
Shares means all the issued shares in the capital of the
Company; and
Warranties means the representations and warranties out in
Schedule 2 of the Main Agreement, it being understood that,
for the terms of this Agreement, references to English legal
terms for any action, remedy, methdo of judicial
proceedings, legal document, legal status, court, official
or any other legal concept shall, in respect of Belgium, be
deemed to include the legal concept which most nearly
approximates in Belgium to the English legal term.
Conditions precedent
1.1 Completion of this Agreement shall be conditional upon
the following conditions having been fulfilled :
(a) completion of the Main Agreement in accordance with the
provisions of clause 3 thereof;
(b) both parties (i) being satisfied that the transaction
contemplated by this Agreement does not give rise to a duty
to notify under the provisions of the Law of 5 August 1991
on the protection of economic competition (the Law) or, (ii)
the Vendor having received confirmation in writing from the
Belgian Competition Council that the transaction
contemplated by this Agreement is either admissible or
deemed admissible pursuant to the provisions of the Law.
Quid in case notification is necessary ? Will Parties go
through with the transaction ?
1.2 Prior to the completion of this Agreement, the Vendor
shall be the sole legal owner of all the Shares.
Sale of the shares and consideration
2.1 The Vendor agrees to sell (or procure the sale of), and
the Purchaser hereby agrees to purchase, the Shares as at
and with effect from the date of this Agreement free from
all Security Interests, options, charges, liens,
encumbrances, equities, claims or other third party rights
(including, without limitation, rights of pre-emption) of
any nature whatsoever, together with all rights which now
are, or at any time hereafter may become, attached to them
including, without limitation, the right to receive all
dividends and other distributions declared, made or paid on
or after the date of this Agreement.
2.2 The Consideration shall be satisfied by the Purchaser
discharging its obligations pursuant to clause 3.3(a) of the
Main Agreement.
Completion
3.1 The sale and purchase of the Shares shall be completed
simultaneously with completion of the Main Agreement,
whereupon the events set out in the following provisions of
this clause 3 shall take place.
3.2 The Vendor shall deliver or cause to be delivered to
the Purchaser:
(a) the share register and all the issued share
certificates, if any, of the Company, to be duly
amended by the Parties so as to evidence the legal
ownership of the Shares by the Purchaser;
(b) the By-laws and all minute books and other statutory
books of the Company;
(c) all such other documents (including any necessary
waivers of pre-emption rights or other consents) as may
be required to enable the Purchaser to be registered as
the holder(s) of the Shares;
(e) all those documents evidencing the revocation of any
existing mandates and powers of attorney given by the
Company;
3.3 The Vendor and the Purchaser shall register or cause to
be registered in the relevant Share Register of the Company
the transfer of the Shares pursuant to this Agreement.
Warranties
4. Subject to the Limitations, the Vendor warrants to the
Purchaser as at the date hereof in the terms of the
warranties set out in Schedule 2 of this Agreement.
Entire agreement
5. This Agreement and, to the extent relevant, the Main
Agreement set out the entire agreement and understanding
between the parties in respect of the sale and purchase of
the Shares. It is agreed that:
(a) no party has entered into this Agreement in reliance
upon any representation, warranty or undertaking of any
other party which is not expressly set out or referred
to in this Agreement.
(b) a party may claim in contract for breach of warranty
under this Agreement but, subject to clause 5.(c),
shall have no claim or remedy under this Agreement in
respect of misrepresentation (whether negligent or
otherwise, and whether made prior to, and/or in, this
Agreement) or untrue statement made by any other party;
and
(c) this clause shall not exclude any liability for
fraudulent misrepresentation.
Counterparts
6. This Agreement may be entered into in any number of
counterparts and by the parties to it on separate
counterparts, each of which, when executed and delivered,
shall be an original, but all the counterparts shall
together constitute one and the same instrument.
Invalidity
7. If any provision of this Agreement is held to be
invalid or unenforceable, then such provision shall (so far
as it is invalid or unenforceable) be given no effect and
shall be deemed not to be included in this Agreement but
without invalidating any of the remaining provisions of this
Agreement. The parties shall then use all reasonable
endeavours to replace the invalid or unenforceable provision
by a valid provision the effect of which is as close as
possible to the intended effect of the invalid or
unenforceable provision.
Assignment
8.1 Neither of the parties shall, without the prior written
consent of the other, be entitled to assign the benefit or
burden of this Agreement in whole or in part save that the
Vendor may assign its rights under this Agreement to any
member of the Vendor's Group.
8.2 The Parties acknowledge and agree that if the Purchaser
assigns the benefit of this Agreement in whole or in part to
any other person, the liabilities of the Vendor under this
Agreement to the Purchaser shall be not greater, and not
less, than such liabilities would have been had the
assignment not occurred.
Variation
9. No variation of any of the terms of this Agreement (or
of any other documents referred to herein) shall be valid
unless it is in writing and signed by or on behalf of each
of the parties hereto. The expression variation shall
include any variation, supplement, deletion or replacement
however effected.
Governing law
10.1 This Agreement is governed by, and shall be construed
in accordance with, the laws of Belgium.
10.2 Each of the parties hereby irrevocably submits, for the
benefit of the other, to the non-exclusive jurisdiction of
the courts of Brussels.
10.3 The agreement contained in clause 10.2 is included for
the benefit of the Vendor. Accordingly, notwithstanding the
exclusive agreement in clause 10.2, the Vendor shall retain
the right to bring proceedings in any other court which has
jurisdiction by virtue of the Convention on Jurisdiction and
the Enforcement of Judgments signed on 27 September 1968, as
amended and extended from time to time.
In witness whereof this Agreement has been signed by and on
behalf of the parties on the day and year first before
written.
SIGNED by )
for and on the behalf of )
HOECHST AG )
SIGNED by )
for and on the behalf of )
SCHEDULE 1
Details of the Company
1. Name : ▇▇▇ Pharma Belgium S.A./N.V.
2. Date of Incorporation :
3. Place of Incorporation :
4. Legal Form : Societe Anonyme/Naamloze
Vennootschap
5. Register of Commerce Register of Commerce of
Brussels,
and Register Number nr. 253.092
6. Registered office : ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇▇
▇▇▇▇▇
straat, 1140 Evere, Belgium
7. Directors : Messrs. J. Hus, ▇. ▇▇▇▇▇ and
▇. ▇▇▇▇▇▇
8. Authorised Capital :
9. Issued Capital : BEF 12 million, fully paid up
10. Shareholders : - ▇▇▇▇▇▇▇ ▇▇, ▇-▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇, ▇▇▇▇▇▇▇
- Hoechst ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Belgium
S.A./N.V., ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇
11. Accounting Reference
Date
12. Auditors :
13. Tax Residence :
14. Subsidiairies : None
15. Mortgages and Charges :
SCHEDULE 2
The Warranties
The Shares
1. All of the Shares are fully-paid, or properly credited
as fully-paid, and the Vendor is the sole legal and
beneficial owner of the Shares free from all Security
Interests, options, equities, claims or other third party
rights (including, without limitation, rights of pre-
emption) of any nature whatsoever. The Vendor has the legal
right to dispose of the Shares.
Product Licences
2. The Appendix contains a list of all product licences
held or beneficially owned by the Company or, in the case of
applications for product licences, of which the Company is
the applicant.
APPENDIX
Part A
Product licences held or beneficially owned
- Licence nr. 1277 from the Ministry of Public Health and
Environment according to the Royal Decree dated 6 July
1960, as amended from time to time, for the
importation, exportation and the trading of
pharmaceutical specialities issued on February 7, 1997.
Part B
Applications for product licences
ANNEX D
Transfer Agreement for NedCox Pharma B.V.
May 1998
HOECHST AG
ALPHARMA (U.K.) LIMITED
ALPHARMA INC.
AGREEMENT
for the sale and purchase of the
issued share capital of
Nedcox Pharma B.V.
THIS AGREEMENT is made on May 1998
Between
HOECHST AKTIENGESELLSCHAFT a company incorporated in and
under the laws of Germany with legal domicile at D-65926
Frankfurt am Main and registered at the commercial Register
of the local court Frankfurt am Main Abteilung B, under
registered number 14500 (the Vendor); and
ALPHARMA (UK) LIMITED (registered no. 3557686) a company
incorporated in and under the laws of England and Wales
whose registered office is at ▇▇▇▇▇▇▇ Valley, Barnstaple,
Devon EX32 8NS, England (the Purchaser); and
ALPHARMA INC. a company incorporated in and under the laws
of Delaware whose principal place of business is at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ (Alpharma).
Whereas
(A) The Vendor and Purchaser are to execute an agreement
(the Main Agreement) pursuant to which the Vendor agrees to
sell to the Purchaser the entire issued share capital of ▇▇▇
Investments Limited. In addition to entering into the Main
Agreement, the parties hereto have executed this Agreement,
together with three other transfer agreements, in
consideration of the Purchaser paying to the Vendor BP (the
Consideration), being that part of the Purchase Price (as
defined below) which is referable to the sale of the entire
issued share capital of Nedcox Pharma B.V., a private
company with limited liability incorporated in and existing
under the laws of The Netherlands with its statutory seat in
Amsterdam, and its registered office at ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Zuidoast (the Company).
(B) In this Agreement, the Vendor agrees to sell and the
Purchaser agrees to purchase the entire issued share capital
of the Company (the Shares) for the Consideration and upon
the terms set out in this Agreement and, to the extent
relevant, in the Main Agreement.
(C) This Agreement shall come into effect simultaneously
with completion of the Main Agreement.
It is agreed as follows:
Definitions
In this Agreement, except so far as the context otherwise
requires, the following terms shall have the following
meanings:
Limitations means, mutatis mutandis, the limitations on the
Vendor's liability set out in clause 7 of the Main
Agreement;
Purchase Price shall bear the meaning attributed thereto in
clause 2..2 of the Main Agreement; and
Vendor's Group means the Vendor, any subsidiary of the
Vendor, any holding company of the Vendor and any subsidiary
of such holding company from time to time where subsidiary
and holding company shall be construed in accordance with
sections 736 and 736A of the Companies ▇▇▇ ▇▇▇▇.
Condition precedent
1. Completion of this Agreement shall be conditional upon
completion of the Main Agreement in accordance with the
provisions of clause 3 thereof.
Sale of the shares and consideration
2.1 The Vendor agrees to sell (or procure the sale of), and
the Purchaser hereby agrees to purchase, the Shares as at
and with effect from the date of this Agreement free from
all pledges (pandrechter) charges, liens, encumbrances,
equities, claims or other third party rights (including,
without limitation, rights of pre-emption) of any nature
whatsoever, together with all rights which now are, or at
any time hereafter may become, attached to them including,
without limitation, the right to receive all dividends and
other distributions declared, made or paid on or after the
date of this Agreement.
2.2 The Consideration shall be satisfied by the Purchaser
discharging its obligations pursuant to clause 3.3(a) of the
Main Agreement.
Completion
3.1 The sale and purchase of the Shares shall be completed
simultaneously with completion of the Main Agreement,
whereupon the events set out in the following provisions of
this clause 3 shall take place.
3.2 The Vendor shall deliver or cause to be delivered to
the Purchaser:
(a) a certified copy of a duly executed notarial deed of
transfer of shares transferring into the name of the
Purchaser or its nominee the Shares, to be executed
before civil-law notary ▇.▇▇. Kraak of Stibbe Simont
▇▇▇▇▇▇▇ Duhot in Amsterdam or his legal substitute;
(b) a copy of the continuous text of the articles of
association of the Company as presently in force;
(c) all those documents evidencing the revocation of any
existing mandates and powers of attorney given by the
Company [and evidencing the dismissal of any of the
managing directors [specify which] of the Company];
3.3 The Vendor and the Purchaser shall procure that the
Company shall register in the Shareholdres' Register of
the Company the transfer of Shares pursuant to this
Agreement.
Warranties
4. Subject to the Limitations, the Vendor warrants to the
Purchaser as at the date hereof in the terms of the
warranties set out in the Schedule.
Entire agreement
5. This Agreement and, to the extent relevant, the Main
Agreement set out the entire agreement and understanding
between the parties in respect of the sale and purchase of
the Shares. It is agreed that:
(a) no party has entered into this Agreement in reliance
upon any representation, warranty or undertaking of any
other party which is not expressly set out or referred
to in this Agreement.
(b) a party may claim in contract for breach of warranty
under this Agreement but, subject to clause 5.(c),
shall have no claim or remedy under this Agreement in
respect of misrepresentation (whether negligent or
otherwise, and whether made prior to, and/or in, this
Agreement) or untrue statement made by any other party;
and
(c) This clause shall not exclude any liability for
fraudulent misrepresentation.
Counterparts
6. This Agreement may be entered into in any number of
counterparts and by the parties to it on separate
counterparts, each of which, when executed and delivered,
shall be an original, but all the counterparts shall
together constitute one and the same instrument.
Invalidity
7. If any provision of this Agreement is held to be
invalid or unenforceable, then such provision shall (so far
as it is invalid or unenforceable) be given no effect and
shall be deemed not to be included in this Agreement but
without invalidating any of the remaining provisions of this
Agreement. The parties shall then use all reasonable
endeavours to replace the invalid or unenforceable provision
by a valid provision the effect of which is as close as
possible to the intended effect of the invalid or
unenforceable provision.
Assignment
8. Neither of the parties shall, without the prior written
consent of the other, be entitled to assign the benefit or
burden of this Agreement in whole or in part save that the
Vendor may assign its rights under this Agreement to any
member of the Vendor's Group.
Variation
9. No variation of any of the terms of this Agreement (or
of any other documents referred to herein) shall be valid
unless it is in writing and signed by or on behalf of each
of the parties hereto. The expression variation shall
include any variation, supplement, deletion or replacement
however effected.
Governing law
10.1 This Agreement is governed by, and shall be construed
in accordance with, the laws of England. The notarial deed
of transfer of shares, as referred to in clause 3.2(a) shall
be governed by, and shall be construed in accordance with
the laws of The Netherlands.
10.2 Each of the parties hereby irrevocably submits, for the
benefit of the other, to the non-exclusive jurisdiction of
the courts of England.
In witness whereof this Agreement has been signed by and on
behalf of the parties on the day and year first before
written.
SIGNED by )
for and on the behalf of )
HOECHST AG )
SIGNED by )
for and on the behalf of )
)
SCHEDULE
The Warranties
The Shares
1. All of the Shares are fully-paid up, and the Vendor is
the sole legal and beneficial owner of the Shares free from
all security interests, options, equities, claims or other
third party rights (including, without limitation, rights of
pre-emption) of any nature whatsoever. The Vendor has the
legal right to dispose of the Shares.
Product Licences
2. The Appendix contains a list of all product licences
held or beneficially owned by the Company or, in the case of
applications for product licences, of which the Company is
the applicant.
APPENDIX
Part A
Product licences held or beneficially owned
Part B
Applications for product licences
