EXHIBIT 10.1
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[CONFORMED COPY]
THIS AGREEMENT is made on the 4th day of May 2001
BETWEEN
(1) THE SEVERAL PERSONS whose respective names and addresses are set out
in Schedule 1 (the "Vendors");
(2) SEACOR SMIT INC (a company incorporated under the laws of the State
of Delaware, USA) of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇ and whose address in England is ▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the "Purchaser")
WHEREAS:-
(A) Stirling Shipping Holdings Limited (the "Company"), a company
registered in Scotland with number SC212855, has at the date of this
Agreement an authorised share capital of (pound)820,683 divided into
152,914 "A" Ordinary Shares of (pound)1 each, 33,477 "B" Ordinary
Shares of (pound)1 each, 551,044 Ordinary Shares of (pound)1 each and
83,248 Deferred Shares of (pound)1 each of which all of the said "A"
Ordinary Shares, all of the said "B" Ordinary Shares, all of the said
Ordinary Shares and all of the said Deferred Shares are issued and
fully paid or credited as fully paid and are owned by the Vendors in
the proportions shown opposite their respective names in column (2)
of Schedule 1.
(B) The Vendors have agreed to sell the Shares to the Purchaser and the
Purchaser has agreed to purchase the Shares for the consideration and
otherwise upon and subject to the terms and conditions of this
Agreement.
WHEREBY IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
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1.1 In this Agreement the following words and expressions have the
meanings set opposite them:
"3i" 3i Group plc (company number: 1142830),
one of the Vendors;
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"Administrative Services Agreement" the agreement relating to the provision of
administrative services by SSML in agreed
terms to be entered into on Completion
between SSML and each of the Demerged
Companies and Harrisons (▇▇▇▇▇) Limited
and Woodside Crescent Limited;
"A Ordinary Shares" the 152,914 issued A Ordinary Shares
of(pound)1 each in the capital of the
Company;
"Accounts" the audited balance sheet as at the
Balance Sheet Date and the audited profit
and loss account for the accounting
reference period ended on the Balance
Sheet Date of SSCO and of each of its
subsidiaries (including, in the case of
SSCO, the audited consolidated balance
sheet as at that date and the audited
consolidated profit and loss account for
that year) and the notes, reports,
statements and other documents which are
required by law to be annexed to the
Accounts of the company concerned;
"Accounting Standards" statements of standard
accounting practice (including financial
reporting standards) issued pursuant to
section 256, CA 85 by the ASB;
"Adjusted Net Assets" has the meaning given thereto in Schedule
5;
"Affiliate" in relation to any body corporate, any
Holding Company or subsidiary undertaking
of such body corporate or any subsidiary
undertaking of a Holding Company of such
body corporate;
"Agreement" this Agreement including its recitals and
the schedules but not the Tax Deed;
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"ASB" Accounting Standards Board Limited (no.
2526824) or such other body prescribed by
the Secretary of State from time to time
pursuant to section 256, CA 85;
"B Ordinary Shares" the 33,477 issued B Ordinary Shares
of(pound)1 each in the capital of the
Company;
"Balance Sheet Date" 31st December 2000;
"Business" collectively the businesses of the owning,
operating and managing of offshore support
vessels carried on by the Company and each
of the Subsidiaries at the date hereof;
"Business Day" a day (other than a Saturday or Sunday)
when banks are open for business in
London;
"CA 85" Companies ▇▇▇ ▇▇▇▇;
"CAA" Capital Allowances ▇▇▇ ▇▇▇▇;
"Cash Consideration" (pound)29,881,062.08;
"Claim" any claim by the Purchaser in connection
with the Warranties or the Tax Deed;
"Companies Acts" as defined in section 744, CA 85 together
with the Companies ▇▇▇ ▇▇▇▇;
"Competent Authority" means any person or legal entity
(including any government or government
agency) having regulatory authority under
Environmental Laws ;
"Completion" completion of the sale and purchase of the
Shares pursuant to this Agreement;
"Completion Accounts" the accounts referred to Clause 6.1.1,
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prepared in accordance with Schedule 5;
"Confidential Information" all confidential information
received or obtained as a result of
entering into or performing, or supplied
by or on behalf of a party in the
negotiations leading to, this Agreement
and which relates to:
(i) the Company and the Subsidiaries;
(ii) any aspect of the Business;
(iii) the Purchaser;
"Connected Person" a person connected with any of the Vendors
or the Directors within the meaning of
section 839, ICTA 1988;
"Consideration" Companies effected prior to Completion the
principles of which are set out in a
letter from Ernst & Young to Inland
Revenue Capital Gains Clearance Section
dated 16th March 2001;
"Demerged Companies" Harrisons (Management) Limited (formerly
known as Stirling Shipmanagement Limited)
and Harrisons (Offshore) Limited (formerly
known as ▇▇▇▇▇ Designs Limited);
"Directors" the directors of the Company and the
Subsidiaries named in Schedule 2;
"Disclosed" fairly disclosed by the Disclosure
Documents and by the general and specific
disclosures set out in or annexed to the
Disclosure Letter and "Disclosure" shall
be construed accordingly;
"Disclosure Bundle" the two identical bundles of documents
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collated by or on behalf of the
Warrantors, the outside cover of one copy
of which has been signed for
identification by or on behalf of the
Warrantors and the Purchaser;
"Disclosure Documents" the Disclosure Letter and the Disclosure
Bundle;
"Disclosure Letter" the letter described as such of
even date herewith addressed by the
Warrantors to the Purchaser and accepted
by the latter immediately before the
signature hereof;
"Encumbrance" any interest or equity of any person
(including any right to acquire, option or
right of pre-emption) or any mortgage,
charge, pledge, lien, claims, assignment,
hypothecation, security interest, rights
in rem or any other security agreement ;
"Environment" any and all organisms (including man),
ecosystems, property and the following
media: air (including the air within
buildings and the air within other natural
or man-made structures whether above or
below ground); water (including water
under or within land or in drains or
sewers and coastal and inland waters); and
land (including land under water);
"Environmental Agreements" any and all leases or licences or other
agreements which are binding upon the
Company or any of the Subsidiaries but
only to the extent that they relate,
either wholly or in part, to the
protection of the Environment, and/or the
prevention of Harm;
"Environmental Laws" any and all laws, whether civil, criminal
or administrative, which have as a purpose
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or effect the protection of the
Environment, and/or the mitigation,
abatement, containment or prevention of
Harm and/or the provision of remedies in
respect of Harm, including European
Community or European Union regulations,
directives and decisions having direct
force of law; statutes and subordinate
legislation; regulations, orders,
ordinances; Permits, statutory codes of
practice, statutory guidance notes; common
law, local laws and bye-laws; judgments,
notices, orders, directions, instructions
or awards of any Competent Authority; and
Environmental Agreements applicable to the
Company and the Subsidiaries which are in
force or in existence at the date of
Completion;
"Environmental Liability" liability (including liability in respect
of Remedial Action) on the part of the
Company or any of the Subsidiaries and/or
any of their directors or officers or
shareholders under Environmental Laws;
"ERA" Employment Rights ▇▇▇ ▇▇▇▇;
"Escrow Account" the interest bearing account to be
established in the joint names of the
Purchaser's Solicitors and the Vendors'
Solicitors to be operated in accordance
with an escrow letter in agreed terms
between the Vendors and the Purchaser and
their respective Solicitors;
"Existing Use" the existing use of the Property which is
set out in Schedule 3;
"FA" Finance Act;
"Financial Year" a financial year within the meaning
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ascribed to such expression by section
223, CA 85;
"Group" together the Company and the Subsidiaries;
"Harm" harm to the health of living organisms or
other interference with the ecological
systems of which they form part and, in
the case of man, includes harm to his
property;
"Hazardous Matter" any and all matter (whether alone or in
combination with other matter) including
electricity, heat, vibration, noise or
other radiation which may or is liable to
cause significant Harm;
"Holding Company" a holding company within the meaning
ascribed to such expression by sections
736 and 736A, CA 85;
"ICTA 1988" Income and Corporation ▇▇▇▇▇ ▇▇▇ ▇▇▇▇;
"Indemnity Agreement" an indemnity agreement in respect of
certain matters relating to the Vessels
known as ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and STIRLING FORTH
in agreed terms to be entered into on
Completion between Harrisons (Offshore)
Limited, Stirling Offshore Limited,
Stirling Marine Limited and SSCO;
"Intellectual Property Rights" any and all patents, trademarks, service
marks, copyright, moral rights, rights in
a design, know how, confidential
information and all or any other
intellectual or industrial property rights
whether or not registered or capable of
registration and whether subsisting in the
United Kingdom or any other part of the
world together with all or any goodwill
relating or attached thereto;
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"ITA" Inheritance Tax ▇▇▇ ▇▇▇▇;
"Letter of Credit" the letter of credit in the agreed terms
to be issued by Den Norske Bank ASA to the
Vendors' Solicitors at Completion in
respect of the Loan Note Consideration
together with accrued interest
"Loan Notes" the loan notes in agreed terms created
pursuant to the Loan Note Instrument;
"Loan Note Consideration" (pound)14,668,942 nominal amount of Loan
Notes;
"Loan Note Instrument" the loan note instrument in agreed terms
of the Purchaser dated May 2001
constituting up to(pound)14,668,942 of the
Loan Notes;
"Management Agreement" the ship management agreement relating to
the technical and commercial management of
the vessels known as ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and
STIRLING FORTH in agreed terms to be
entered into on Completion between
Harrisons (Offshore) Limited and SSML;
"Ordinary Shares" the 551,044 Ordinary Shares of(pound)1
each in the capital of the Company;
"Pension Schemes" agreements or legally binding arrangements
for the payment of any pensions,
allowances, lump sums or other like
benefits on retirement or on death or
during periods of sickness or disablement
for the benefit of any present or former
director, officer or employee of the
Company or of any of the Subsidiaries or
for the benefit of the dependants of any
such persons;
"Performance Guarantee Agreement" an agreement relating to the performance
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guarantees to be given by SS Co to Shell
U.K. Limited in agreed terms to be entered
into on completion of the Demerger between
SSCO and Shell U.K. Limited;
"Performance Guarantee Fee
Agreement" an agreement in respect of the payment of
fees and other matters relating to the
Performance Guarantee Agreement in agreed
terms to be entered into on completion of
the Demerger between SSCO and Harrisons
(Offshore) Limited;
"Permits" any and all licences, consents, permits
and authorisations made or issued pursuant
to or under, or required by, Environmental
Laws in relation to the carrying on of the
Business;
"the Pooling Agreement" the pooling agreement in agreed terms
relating to the use of the vessels known
as ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and STIRLING FORTH and
two of the Vessels, namely STIRLING TAY
and STIRLING SPEY to be entered into on
Completion between Harrisons (Offshore)
Limited, Stirling Offshore Limited,
Stirling Marine Limited and SSML;
"Pre Completion Dividends" the dividends declared in respect of the
Shares in SSCO prior to Completion details
of which are contained in Schedule 9;
"Pre Completion Period" the period from 1st January 2001 to the
date of Completion (inclusive);
"Proceedings" any proceeding, suit or action arising out
of or in connection with this Agreement;
"Property" the property of which short particulars
are set out in Schedule 3;
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"Purchaser's Group" the Purchaser and its Affiliates;
"Purchaser's Solicitors" ▇▇▇▇▇▇ Son & Pepper of ▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
"Ratchet Adjustment Mechanism" the agreement among the Vendors of even
date in respect of the adjustments to the
operation of the ratchet provisions
relating to the Vendors;
"Remedial Action" (i) preventing, limiting, removing,
remedying, cleaning-up, abating or
containing the presence or effect of any
Hazardous Matter in the Environment to the
standard required by the Competent
Authority; or (ii) carrying out
investigative work and obtaining legal and
other professional advice as is reasonably
required in relation to (i);
"Restricted Warrantor" means each of Iain ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇;
"Retention" the sum of(pound)455,919 to be paid into
the Escrow Account on Completion;
"SEC" the United States Securities and Exchange
Commission;
"Shares" the A Ordinary Shares, the B Ordinary
Shares, the Ordinary Shares and the
Deferred Shares;
"Shell Novation Agreement" a novation agreement in agreed terms in
respect of certain charter party
agreements relating to the vessels known
as ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and STIRLING FORTH to be
entered into on completion of the Demerger
between Shell U.K. Limited and Stirling
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Offshore Limited and Harrisons (Offshore)
Limited;
"SSAP" a statement of standard accounting
practice or financial reporting standard
in force at the date hereof as issued by
the Institute of Chartered Accountants in
England and Wales and adopted by the ASB
as an Accounting Standard;
"SSCO" Stirling Shipping Company Limited, one of
the Subsidiaries;
"SSML" Stirling Shipmanagement Limited (formerly
known as Stirling Ferries Limited), one of
the Subsidiaries;
"subsidiary" a subsidiary within the meaning ascribed
to such expression by sections 736 and
736A, CA 85;
"subsidiary undertaking" a subsidiary undertaking within the
meaning ascribed to such expression by
section 258, CA 85;
"Subsidiaries" the subsidiaries of the Company named in
Part 2 of Schedule 2;
"Taxation" or "Tax" (a) all forms of taxation including any
charge, tax, duty, levy, impost,
withholding or liability wherever
chargeable imposed for support of
national, state, federal, municipal
or local government and whether of
the UK or any other jurisdiction;
and
(b) any penalty, fine, surcharge,
interest, charges or costs payable
in connection with any taxation
within (a) above;
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"Taxation Authority" the Inland Revenue, Customs & Excise,
Department of Social Security and any
other governmental or other authority
whatsoever competent to impose any
Taxation whether in the United Kingdom or
elsewhere;
"Tax Claim" any claim by the Purchaser in connection
with the Tax Warranties or the Tax Deed;
"Tax Deed" the deed in the agreed terms containing
certain taxation covenants between the
Warrantors and the Purchaser;
"Taxation Statute" any directive, statute, enactment, law or
regulation, wheresoever enacted or issued,
coming into force or entered into
providing for or imposing any Taxation and
shall include orders, regulations,
instruments, bye-laws or other subordinate
legislation made under the relevant
statute or statutory provision and any
directive, statute, enactment, law, order,
regulation or provision which amends,
extends, consolidates or replaces the same
prior to the date hereof or which has been
amended, extended, consolidated or
replaced by the same prior to the date
hereof;
"Tax Warranties" the warranties set out in Part 2 of
Schedule 4;
"TCGA" Taxation of Chargeable Gains ▇▇▇ ▇▇▇▇;
"TMA" Taxes Management ▇▇▇ ▇▇▇▇;
"Trade Union" as defined in section 1, TULRCA;
"TULRCA" Trade Union and Labour Relations
(Consolidation) ▇▇▇ ▇▇▇▇;
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"TUPE" Transfer of Undertakings (Protection of
Employment) Regulations 1981;
"VAT" value added tax;
"VATA" Value Added Tax ▇▇▇ ▇▇▇▇;
"Vendors' Accountants" Ernst & Young of ▇▇▇▇▇▇ House, ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇;
"Vendors' Representatives" ▇▇▇▇ ▇▇▇▇ of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ on behalf of 3i and ▇▇▇▇▇
▇▇▇▇▇▇▇▇ of ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ one of
the Vendors in respect of the rest of the
Vendors;
"Vendors' Solicitors" ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ of ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇;
"the Vessels" the whole of each of the vessels listed in
Part 1 of Schedule 8 including with
respect to each Vessel (whether onboard or
ashore) all spare parts and equipment
relating to those vessels (which means all
vessels equipment other than those items
of equipment belonging to the STIRLING
FORTH and the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ set out on an
inventory signed by or on behalf of the
parties for identification prior to the
Vendors' and Purchaser's execution
hereof), inventory, appurtenances, stores
and supplies, fuel and lubes;
"Vessel Claim" any Claim in respect of or relating to any
of the Vessels including any Claim
pursuant to paragraphs 21.1 and 21.2 of
Part 3 of Schedule 4 and any Claim
relating to any charter party, loan or
other financing agreement, management
agreement, pooling agreement, hire
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agreement or rental agreement in relation
to any of the Vessels;
"Warranties" the warranties set out in Clause 9 and
Schedule 4;
"Warrantors" all of the Vendors other than 3i;
"in the agreed terms" in the form agreed between the Vendors and
the Purchaser and signed for the purposes
of identification by or on behalf of each
party prior to the Vendors' and
Purchaser's execution hereof.
1.2 The table of contents and headings in this Agreement are inserted for
convenience only and shall not affect its construction.
1.3 Unless the context otherwise requires words denoting the singular
shall include the plural and vice versa, references to any gender
shall include all other genders and references to persons shall
include bodies corporate, unincorporated associations and
partnerships, in each case whether or not having a separate legal
personality. References to the word "include" or "including" are to
be construed without limitation.
1.4 References to recitals, schedules and clauses are to recitals and
schedules to and clauses of this Agreement unless otherwise specified
and references within a schedule to paragraphs are to paragraphs of
that schedule unless otherwise specified.
1.5 References in this Agreement to any statute, statutory provision or
EC Directive include a reference to that statute, statutory provision
or EC Directive as amended, extended, consolidated or replaced from
time to time (whether before or after the date of this Agreement) and
include any order, regulation, instrument or other subordinate
legislation made under the relevant statute, statutory provision or
EC Directive except to the extent that any modification enacted after
the date of this Agreement would increase the liability of any party
under this Agreement.
1.6 Words and expressions defined in the Tax Deed shall to the extent not
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inconsistent bear the same meanings in this Agreement.
1.7 References to any English legal term for any action, remedy, method
of judicial proceeding, legal document, legal status, court, official
or any legal concept, state of affairs or thing shall in respect of
any jurisdiction other than England be deemed to include that which
most approximates in that jurisdiction to the English legal term.
1.8 Any reference to "writing" or "written" includes faxes and any
non-transitory form of visible reproduction of words but shall not
include email.
1.9 Any agreement, covenant, representation, warranty, undertaking or
liability arising under this Agreement on the part of two or more
persons shall be deemed to be made or given by such persons severally
and not jointly, or jointly and severally.
1.10 References to the Vendors and to the Warrantors shall be construed as
a reference to each of them severally and not to the Vendors jointly
or jointly and severally.
1.11 The obligations of each of the Vendors and each of the Warrantors and
all representations, agreements and undertakings (if any) given by
them are given severally only and not jointly or jointly and
severally.
1.12 In Schedule 4, references to the Company shall be deemed to include a
corresponding reference to the Subsidiaries and each of them
severally and references to the Accounts are to those of the Company
or the relevant Subsidiary as the case may be.
1.13 References to times of the day are to London time and references to a
day are to a period of 24 hours running from midnight.
1.14 References to the Purchaser shall include references to any permitted
assignees pursuant to Clause 14.1.
2. SALE AND PURCHASE
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2.1 Obligation to sell and purchase
Subject to the terms of this Agreement, each of the Vendors shall
sell with full title guarantee free from Encumbrances, that number of
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Shares of which he is the registered holder at Completion and which
are set opposite his name in column (2) of Schedule 1 and the
Purchaser shall purchase such interests in the same together with all
rights attaching thereto at Completion.
2.2 Dividends and distributions
The Purchaser shall be entitled to receive all dividends and
distributions declared by the Company on or after the date of
Completion.
2.3 Sale of all Shares
The Purchaser shall not be obliged to complete the purchase of any of
the Shares unless the purchase of all the Shares is completed
simultaneously.
2.4 3i Warranty
3i warrants that there is no Encumbrance on, over or affecting the
Shares of which it is the registered proprietor and there is no
agreement or arrangement to create any such Encumbrance.
3. CONSIDERATION
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3.1 Consideration
The Shares shall be sold for the Consideration but subject to
adjustment as provided in Clause 7.
3.2 The Consideration shall be paid or satisfied as follows:-
3.2.1 by the payment in cash on Completion of the Cash Consideration
((pound)29,881,061.08) subject to the Retention;
3.2.2 by the allotment on Completion of the Consideration Shares credited
as fully paid; and
3.2.3 by the issue on Completion of the Loan Notes.
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3.3 Entitlement to consideration
The Consideration shall belong to the Vendors in the form and in the
amounts set opposite their respective names in columns (3), (4) and
(5) of Schedule 1.
4. WAIVERS OF PRE-EMPTION
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Each of the Vendors hereby waives all rights of pre-emption or other
rights over any of the Shares conferred on him either by the articles
of association of the Company or in any other way.
5. COMPLETION
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5.1 Time and location
Completion shall take place at the offices of the Vendors' Solicitors
immediately after signature of this Agreement.
5.2 Vendors' obligations
At Completion:
5.2.1 each Vendor other than 3i shall in respect of the Shares held by him
deliver to the Purchaser each of the documents listed in Part 1 of
Schedule 6; and
5.2.2 the Vendors other than 3i shall insofar as it is within their
respective power so to do procure that all necessary steps are taken
properly to effect the matters listed in Part 2 of Schedule 6 at
board meetings of the Company and each of the Subsidiaries and the
Warrantors shall deliver to the Purchaser duly signed minutes of all
such board meetings;
5.2.3 3i shall deliver to the Purchaser the share certificate relative to
its shareholdings in the Company together with a duly executed stock
transfer form in favour of the Purchaser in respect of such
shareholdings.
5.2.4 each of the Vendors named in Part 5 of Schedule 6 shall deliver to
the Purchaser a letter in the form set forth in Part 5 of Schedule 6.
5.3 Purchaser's obligations
Subject to the Vendors complying with their obligations under
sub-clause 5.2 the Purchaser shall at Completion:
5.3.1 procure that all necessary steps are taken properly to effect the
matters listed in Part 3 of Schedule 6 at a board meeting of the
Purchaser;
5.3.2 deliver to the Vendors each of the documents listed in Part 4 of
Schedule 6;
5.3.3 pay or procure the payment of the sum of (pound)29,425,142.08 by way
of electronic transfer in immediately available funds to the Vendors'
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Solicitors who are irrevocably authorised by the Vendors to receive
the same and whose receipt shall be an effective discharge of the
Purchaser's obligation to pay such sum and the Purchaser shall not be
concerned to see the application of such sum;
5.3.4 pay or procure the payment into the Escrow Account of the sum
of(pound)455,919 by way of electronic payment in immediately
available funds.
5.4 Pending Registration
Each of the Vendors (other than 3i in respect of Clause 5.4.4) hereby
declares that during the period of three calendar months following
Completion and for so long as he remains the registered holder of any
of the Shares after Completion he will:-
5.4.1 stand and be possessed of the Shares and the dividends and other
distributions of profits or surplus or other assets in respect
thereof (other than the Pre Completion Dividends) and all rights
arising out of or in connection therewith in trust for the Purchaser;
5.4.2 deal with and dispose of the Shares, and all such dividends,
distributions and rights attaching to the Shares as the Purchaser may
reasonably direct and at its cost;
5.4.3 at the request of the Purchaser and at its cost vote at all meetings
which he shall be entitled to attend as the holder of the Shares in
such manner as the Purchaser may reasonably direct; and
5.4.4 if so requested by the Purchaser and at its cost, execute all
instruments of proxy or other documents which the Purchaser may
reasonably require and which may be necessary or desirable to enable
the Purchaser to attend and vote at any such meeting.
6. COMPLETION ACCOUNTS
-------------------
6.1 Preparation of Completion Accounts
6.1.1 Forthwith after Completion, the Purchaser shall procure the
preparation by the Company of a draft of the Completion Accounts and
statement of Adjusted Net Assets for the Group as at the close of
business on the date of Completion and the Purchaser shall submit
them to each of the Vendors for review within 90 days after
Completion.
6.1.2 If the Purchaser shall fail to procure the preparation of accounts in
accordance with sub-clause 6.1.1, the Vendors may procure the same at
the Purchaser's expense.
18
6.1.3 The Completion Accounts shall consist of a consolidated balance sheet
for the Company as at the close of business on the date of Completion
and a consolidated profit and loss account for the Company in respect
of the Pre-Completion Period and the Completion Accounts shall be
prepared in accordance with the principles set out in Schedule 5.
6.1.4 Unless within 15 Business Days after receipt of the draft Completion
Accounts and draft statement of Adjusted Net Assets pursuant to
sub-clause 6.1.1 either of the Vendors' Representatives notifies the
Purchaser in writing of any disagreement or difference of opinion
relating to the draft Completion Accounts and draft statement of
Adjusted Net Assets, the parties shall be deemed to have accepted and
agreed the Completion Accounts and statement of Adjusted Net Assets.
6.1.5 If within the period of 15 Business Days referred to in sub-clause
6.1.4 either of the Vendors' Representatives notifies the Purchaser
of any disagreement or difference of opinion relating to the draft
Completion Accounts and statement of Adjusted Net Assets ("Notice of
Disagreement") and if they are able to resolve such disagreement or
difference of opinion within 15 Business Days of the Notice of
Disagreement, the parties shall be deemed to have accepted and agreed
such accounts and statement of Adjusted Net Assets.
6.1.6 If the parties are unable to reach agreement within 15 Business Days
of the Notice of Disagreement, the matter in dispute shall be
referred to the decision of an independent chartered accountant (the
"Independent Accountant") to be appointed (in default of nomination
by agreement between the Vendors and the Purchaser within 7 Business
Days) by the President for the time being of the Institute of
Chartered Accountants in Scotland.
6.1.7 The Independent Accountant shall act as an expert and not as an
arbitrator, the Arbitration ▇▇▇ ▇▇▇▇ shall not apply and his decision
shall (in the absence of manifest error) be final and binding on the
Vendors and the Purchaser. The costs of the Independent Accountant
shall be apportioned between the Vendors and the Purchaser as the
Independent Accountant shall decide but each party shall be
responsible for its own costs of presenting its case to the
Independent Accountant.
6.1.8 The Purchaser shall procure that the Vendors and the Independent
Accountant are given access to all the relevant books, records and
accounts of the Company and the Purchaser agrees that the Company's
officers and employees shall be at liberty to disclose to the Vendors
any information and copies of any documents which they receive by
virtue of this clause for the purposes of reviewing the Completion
Accounts.
19
6.1.9.1 The Purchaser shall procure that SSCO pays the dividend set out at
paragraphs 5 and 6 of Schedule 9 to shareholders on the register of
SSCO as at midnight on 2nd May 2001 within 7 Business Days after
agreement or determination of the Adjusted Net Assets in terms of
Clause 7.
6.1.9.2 Each Vendor hereby waives any entitlement to interest on the dividend
referred to in Clause 6.1.9.1 pursuant to the articles of association
of SSCO and hereby releases SSCO from any liability in respect
thereof.
7. ADJUSTMENT OF CONSIDERATION
---------------------------
7.1 The Consideration shall be adjusted after Completion in accordance
with the following provisions of this Clause 7.
7.2.1 If the Adjusted Net Assets are less than (pound)54,329,000 the
Consideration shall be reduced by the amount of the deficiency.
7.2.2 If the Adjusted Net Assets are greater than (pound)54,329,000 the
Consideration shall be increased by the amount of the excess.
7.3 Any reduction in the Consideration pursuant to the provisions of
Clause 7.2.1 up to(pound)1,000,000 shall be paid to the Purchaser:-
(a) as to 45.5919% thereof out of the Retention together with the
interest thereon (and the balance of the Retention (if any)
together with the interest thereon shall be paid to the
Vendors) and;
(b) as to 54.4081% thereof by way of a pro rata abatement of
payments due under the Loan Notes such abatement not exceeding
(pound)544,081 in nominal value;
and the Warrantors shall be severally liable (in the proportions set
out in column (7) of Schedule 1) to pay the Purchaser the amount by
which any such reduction in the Consideration exceeds
(pound)1,000,000.
7.4 If the Consideration is increased pursuant to Clause 7.2.2 the
Retention (together with the interest thereon) shall be released to
the Vendors and the amount of the increase shall be paid or satisfied
by the Purchaser in each case within 7 Business Days after the amount
of the increase shall have been agreed or determined in accordance
with Clause 6. Any such increase up to and including the sum of
(pound)500,000 shall be paid in cash but subject thereto if any such
20
increase shall exceed the sum of (pound)500,000 the whole of such
increase shall be paid or satisfied in the form and in the
proportions in which the Vendors receive the Consideration as set out
in Columns (3), (4) and (5) respectively of Schedule 1.
7.5 The Purchaser acknowledges that the split of the Consideration
amongst the Vendors may be adjusted in accordance with the Ratchet
Adjustment Agreement.
8. CONSIDERATION SHARES AND LOAN NOTES
-----------------------------------
8.1 Each Vendor acknowledges and agrees that the Loan Notes will be
issued to the Vendors without registration under the Securities Act
and the Loan Notes may not be offered for sale, sold or otherwise
transferred in the absence of such registration or an exemption
therefrom.
8.2 Each Vendor, entitled to receive Loan Notes hereunder by reason of
his business and financial experience, has such knowledge,
sophistication and experience in business and financial matters as to
be capable of evaluating the merits and risks of the investment
represented by the Loan Notes is able to bear the economic risk of
such investment and is able to afford a complete loss of such
investment. Each of such Vendors had read the Purchaser's 1999 Annual
Report and proxy statement for its 2000 Annual Meeting of
Stockholders together with the Purchaser's Quarterly Reports on Form
10-Q for the first three quarters of 2000 as filed with the SEC and
the Purchaser's Reports on Form 8-K filed with the SEC on 16th June
2000, 18th January 2000 and 5th, 8th and 9th March 2000 and each of
such Vendors has been given a full opportunity to ask questions of
and to receive answers from representatives of the Purchaser
concerning the terms of the Loan Notes, the business of the Purchaser
and such other information as he desired in order to evaluate an
investment in the Loan Notes, and all such questions have been
answered to the full satisfaction each of such Vendor.
8.3 If the number of Consideration Shares which falls to be issued to any
Vendor hereunder is less than a whole number the number shall be
rounded down and the Purchaser shall make up in cash the deficit in
the amount of the Consideration due to that Vendor calculated by
reference to the agreed value of the Consideration Shares.
21
9. WARRANTIES
----------
9.1 Extent of Warranties
In consideration of the Purchaser agreeing to purchase the Shares on
the terms contained in this Agreement, the Warrantors hereby:
9.1.1 in relation to the Company and each of the Subsidiaries warrant to
the Purchaser in the terms set out in Schedule 4;
9.1.2 in the event of any breach or non-fulfilment of any of the Warranties
relating to Vessel Claims or Claims under paragraphs 7.2.1, 11.1,
11.2, 11.3 of Part 1 of Schedule 4 and paragraphs 22.1 and 22.3 of
Part 4 of Schedule 4, undertake to the Purchaser that the Warrantors
will on demand pay to the Purchaser:
(a) the full amount of any shortfall or diminution in the value of
any assets of the Company or any of the Subsidiaries and an
amount equal to any other loss suffered or incurred by the
Purchaser, the Company or any of the Subsidiaries as a result
of or in relation to any act, matter, thing or circumstance
constituting a breach or non-fulfilment of any of the
Warranties referred to in Clause 9.1.2 (other than loss of
profits and consequential damage covered by insurance); and
(b) all proper costs and expenses suffered or incurred by the
Purchaser, the Company, any of the Subsidiaries or any such
successor directly or indirectly as a result of or in relation
to any breach or non-fulfilment of any of the Warranties
referred to in Clause 9.1.2.
9.2 Obligation to make enquiries
Where any of the Warranties is made or given "so far as the
Warrantors are aware", such Warranty shall be deemed to be given to
the best of the knowledge, information and belief individually or
collectively of any one or more of the Warrantors after making due
and careful enquiries into the subject matter of that warranty of
each other before giving such warranty and the knowledge, information
and belief of any one of the Warrantors shall be imputed to the
remaining Warrantors.
9.3 Information supplied by the Company and Subsidiaries
Any information supplied by or on behalf of the Company or on behalf
of any of the Subsidiaries (or by any officer, employee or agent of
any of them) to the Warrantors in connection with the Warranties, the
Indemnities or the Tax Deed or the information Disclosed in the
22
Disclosure Documents shall not constitute a warranty, representation
or guarantee as to the accuracy of such information in favour of the
Warrantors and the Warrantors hereby undertake to the Purchaser that,
save in the case of fraud by any such person, to waive any and all
claims which they might otherwise have against the Company or any of
the Subsidiaries or against any officer, employee or agent of any of
them in respect of such claims but so that this shall not preclude
any Warrantor from claiming against any other Warrantor under any
right of contribution or indemnity to which he may be entitled.
9.4 Separate and independent warranties
Each of the Warranties set out in the separate paragraphs of Schedule
4 shall be separate and independent and save as expressly otherwise
provided shall not be limited by reference to any other such Warranty
or by anything in this Agreement, the Disclosure Documents or the Tax
Deed.
9.5 No Set-Off
Save only in the circumstances provided for in Clause 7, the Company
shall not be entitled to deduct from the principal which would
otherwise be payable on redemption of the Loan Notes any sum which it
is entitled to retain or deduct pursuant to this Agreement.
9.6 Purchaser Warranty
The Purchaser warrants to and with the Vendors the following:-
9.6.1 Authorisation; Enforceability: The signature, execution and
performance of this Agreement and all ancillary documents by the
Purchaser and the transactions contemplated hereby and thereby have
been duly authorised and are within the power of the Purchaser and
(assuming due execution by the other parties thereto) constitute
binding obligations enforceable against the Purchaser in accordance
with their terms.
9.6.2 Issuance of Shares: Registration of Shares: The Consideration Shares
are duly authorised and, upon issuance in accordance with the terms
of this Agreement shall be validly issued, fully paid and
non-assessable, and free from all taxes, liens and charges with
respect to the issue thereof and shall not be subject to pre-emptive
rights of securityholders of the Purchaser. The Purchaser represents
and warrants that (i) the Purchaser's Registration Statement No.
333-53320 on Form S-4 ("the Registration Statement") is effective as
of the date hereof as to the issuance of the Consideration Shares
23
(ii) the Registration Statement (including the prospectus contained
therein) complied as of the filing date and complies as of the date
hereof in all material respects with the requirements of the
Securities Act of 1933, as amended ("the Securities Act") and the
rules and regulations of the Securities and Exchange Commission ("the
SEC") promulgated thereunder applicable to the Registration
Statement, and except for any statements or omissions from the
Registration Statement based upon information furnished to the
Purchaser by any Vendor specifically for use therein the Registration
Statement did not contain, at the time it was filed with the SEC, and
does not contain as of the date hereof, any untrue statement of a
material fact or does not omit to state a material fact required to
be stated therein or necessary in order to make the statements
therein, in light of the circumstances in which they were made, not
misleading. The Consideration Shares, upon their issuance, will be
freely transferable except as Rule 145 promulgated under the
Securities Act may otherwise provide. The class of Purchaser's
securities that includes the Consideration Shares is listed on the
New York Stock Exchange.
9.6.3 No Conflicts: The execution, delivery and performance of this
Agreement and all ancillary documents by the Purchaser and the
consummation by the Purchaser of the transactions contemplated hereby
and thereby will not (i) result in a violation of the certificate of
incorporation or by-laws of the Purchaser or (ii) conflict with, or
constitute a default (or an event which with notice or lapse of time
or both would become a default) under, or give to others any rights
of termination, amendment, acceleration or cancellation of, or
otherwise result in an adverse change in the terms currently in
effect under, any agreement, indenture or instrument to which the
Purchaser or any of its subsidiaries is a party, or result in a
violation of any law, rule, regulation, order, judgment or decree
(including any securities laws and regulations) applicable to the
Purchaser or any of its subsidiaries or by which any property or
asset of the Purchaser or any of its subsidiaries is bound or
affected. Except as specifically contemplated by this Agreement or as
required under any applicable securities laws, the Purchaser is not
required to obtain any consent, authorisation or order of, or make
any filing or registration with, any court or governmental agency or
any regulatory or self regulatory agency or any other person in order
for it to execute, deliver or perform any of its obligations under
this Agreement and all ancillary documents in accordance with their
respective terms.
9.6.4 The Purchaser has filed all required reports, schedules, forms,
statements and other documents with the SEC since 31st December 1999
("the SEC Documents"). As of their respective dates, the SEC
Documents complied as to form in all material respects with the
24
requirements of the Securities Exchange Act of 1934, as amended, as
the case may be, and the rules and regulations of the SEC promulgated
thereunder applicable to such SEC Documents, and none of the SEC
Documents contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
9.6.5 The audited and unaudited consolidated balance sheets and the related
consolidated statements of earnings, stockholders' equity and cash
flows, and the related notes thereto included in the SEC Documents
(collectively the "Seacor Financial Statements") have been prepared
in accordance with U.S. Generally Accepted Accounting Principles
applied on a basis consistent with prior periods, and present fairly
the financial position of the Purchaser and its subsidiaries at the
dates of the balance sheets included therein and the related results
of operations and cash flows for the periods then ended, except, in
the case of unaudited consolidated balance sheets and related
consolidated unaudited statements of earnings and cash flows, of the
Purchaser and its subsidiaries included in the SEC Documents, as
permitted by Rule 10.01 of Regulations S-X of the SEC. The unaudited
Seacor Financial Statements reflect all adjustments (consisting only
of normal recurring adjustments) that are necessary for a fair
statement of the results for the interim periods presented therein.
None of the Purchaser or its affiliates has, nor are any of their
respective assets subject to, any liability, commitment, debt or
obligation (of any kind whatsoever whether absolute or contingent,
accrued, fixed, known, unknown, matured or unmatured), except (i) as
and to the extent reflected on the most recently dated balance sheet
included in the Seacor Financial Statements ("the Seacor Latest
Balance Sheet"), (ii) as may have been incurred or may have arisen
since the date of the Seacor Latest Balance Sheet in the ordinary
course of business and that are not material individually or in the
aggregate or (iii) as permitted by this Agreement.
9.6.6 Absence of Certain Changes: Since 1st January 2001 there has been no
material adverse change and no material adverse development in the
business, properties, operations, financial conditions, results of
operations of the Purchaser and its subsidiaries, taken as a whole,
except as disclosed in the SEC Documents or the 31st December 2000
financial statements of the Purchaser.
9.6.7 Absence of Litigation: Other than as disclosed in the SEC Documents,
there is no action, suit, proceeding, inquiry or investigation before
or by any court, public board, government agency, self regulatory
organisation or body pending or, to the knowledge of the Purchaser
25
threatened against or affecting the Purchaser or any of its
subsidiaries, of a nature which would be required to be disclosed in
the SEC Documents pursuant to applicable securities laws and
regulations.
9.7 Vendors Warranty
9.7.1 Each Vendor other than 3i warrants to the Purchaser that such Vendor
(1) is not a "U.S. Person" as defined in Rule 902 of Regulation S
promulgated under the 1933 Act (as defined) and has executed this
Agreement outside the United States and/or (2) is an "Accredited
Investor" as defined in Rule 601(a) of Regulation D promulgated under
the Securities Act.
9.7.2 3i Warrants to the Purchaser that it is an "Accredited Investor" as
defined in Rule 501(a) of Regulation B promulgated under the
Securities Act.
9.8 Purchaser Covenants
9.8.1 The Purchaser agrees to use its best efforts to provide for the
election of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as a member of the Board of Directors of
the Purchaser no later than the date of the regularly scheduled
meeting of the Purchaser's Board of Directors first succeeding that
date that is 21 days following the date of Completion.
9.8.2 Effectiveness of Registration Statement; Disclosure of Material
Changes. The Registration Statement will be effective upon the
issuance of the Consideration Shares as of the Completion Date. The
Purchaser shall use its best efforts to prepare and file with the SEC
such amendments (including post-effective amendments) and supplements
to the Registration Statement and the prospectus used in connection
with the Registration Statement as may be necessary to keep the
Registration Statement effective at all times through to the
Completion Date.
9.8.3 Compliance with Rule 145: The Purchaser agrees that if the stock
certificates evidencing the Consideration Shares are legended with a
restrictive legend in connection with Rule 145(d) of the Securities
Act, upon presentation of a legal opinion along with such other
documentation as the Purchaser or the transfer agent for the common
stock of the Purchaser may reasonably request, the Purchaser will
promptly provide such transfer agent with instructions to promptly
remove the restrictive legend in connection with the sale of such
Consideration Shares in compliance with Rule 145(d).
26
10. LIMITATION OF VENDORS' LIABILITY
--------------------------------
10.1 Limitations on Warrantors' liability
The liability of the Warrantors in respect of any claim under the
Warranties shall be limited as provided in Schedule 7 but so that the
limitations on the liability of the Warrantors under this sub-clause
10.1 and Schedule 7 shall not apply in relation to the Warranties set
out in paragraph 2.3.1 of Schedule 4.
10.2 Exclusions from Clause 10
Notwithstanding any other provision of this Agreement, the provisions
of this Clause 10 and Schedule 7 shall not apply to any claim made
against the Warrantors in the case of any fraud or dishonesty by or
on behalf of all or any of the Warrantors provided that each
Warrantors shall be solely responsible for his own fraudulent or
dishonest acts.
10.3 Limitations on the Liability of 3i
The liability of 3i in respect of any matter under this Agreement, in
the absence of fraud or dishonesty shall not exceed such proportion
of the Consideration payable to 3i as may be adjusted as provided in
Clause 7.
11. PROTECTION OF GOODWILL
----------------------
11.1 Covenants
As further consideration for the Purchaser agreeing to purchase the
Shares on the terms contained in this Agreement and with the intent
of assuring to the Purchaser the full benefit and value of the
goodwill and connections of the Group and as a constituent part of
the sale of the Shares, each Restricted Warrantor hereby undertakes
to the Purchaser (contracting for itself and on behalf of the Company
and of each of the Subsidiaries and for any successor in title to the
Shares or to part or all of the Business) that (except as a director
or employee of the Company or of any of the Subsidiaries or with the
written consent of the Purchaser) he shall not whether on his own
behalf or with or on behalf of any person and whether directly or
indirectly by any or person or business controlled by them or any
Connected Person:
11.1.1 For a period of 3 years from Completion carry on or be
employed, engaged, concerned, interested or in any way
assist within the United Kingdom any business which may in
any way be in competition with all or part of the Business
provided that nothing in this sub-clause 12.1.1 shall
prevent a Restricted Warrantor from holding for investment
purposes only any units of an authorised unit trust and/or
27
not more than five % of any class of the issued share or
loan capital of any company quoted on a recognised
investment exchange (as defined in the Financial Services
Act 1986);
11.1.2 For a period of 3 years from Completion canvass, solicit
or approach or cause to be canvassed, solicited or
approached (in relation to a business which may in any way
compete with all or part of the Business) the custom of
any person who at any time during the 12 months preceding
Completion shall have been a client or customer [or joint
venture partner] of the Company or of any of the
Subsidiaries;
11.1.3 For a period of 3 years from Completion in relation to a
business which may in any way compete with all or part of
the Business provide or seek to provide services to any
person who at any time during the 12 months preceding
Completion shall have been a client or customer of the
Company or of any of the Subsidiaries;
11.1.4 For a period of 3 years from Completion interfere or seek
to interfere or take such steps as may interfere with
supplies to the Company and/or any of the Subsidiaries
from any suppliers who shall have been supplying goods or
services to the Company or to any of the Subsidiaries for
use in connection with the Business at any time during the
period of 12 months prior to the date of Completion;
11.1.5 For a period of 3 years from Completion offer employment
to or employ or offer to conclude any contract of services
with employees of the Company or of any of the
Subsidiaries employed in a managerial, supervisory or
sales capacity or procure or facilitate the making of such
an offer by any person, firm or company or entice or
endeavour to entice any such employees of the Company or
of any of the Subsidiaries to terminate their employment
with the Company or any of the Subsidiaries; or
11.1.6 at any time after Completion use as a trade or business
name or ▇▇▇▇ or carry on a business under a title
containing the word(s) "Stirling Shipping Company" or
"Stirling" in conjunction with any word which has a
maritime connotation or any other word(s) which is(are)
deliberately calculated to resemble the same provided that
nothing in this sub-clause shall prevent a Demerged
Company from using the names ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and STIRLING
FORTH on those named
28
vessels transferred as part of the Demerger so long
as such vessels are owned by a Demerged Company and
are managed by a member of the Group or the
Purchaser's Group.
Each undertaking contained in this sub-clause 11.1 shall be read and
construed independently of the other undertakings herein as an
entirely separate and severable undertaking.
11.2 Notwithstanding the provisions of this Clause 11, nothing in this
Clause 11 shall prevent any of the Restricted Warrantors from being a
member, officer or an employee of Harrisons (▇▇▇▇▇) Limited or the
Demerged Companies provided that none of Harrisons (▇▇▇▇▇) Limited or
the Demerged Companies competes with the Business.
11.3 Severability of covenants
Whilst the undertakings in sub-clause 11.1 are considered by the
parties to be reasonable in all the circumstances, if any one or more
should for any reason be held to be invalid but would have been held
to be valid if part of the wording thereof was deleted or the period
thereof reduced or the range of activities or area covered thereby
reduced in scope, the said undertakings shall apply with the minimum
modifications necessary to make them valid and effective.
12. ANNOUNCEMENTS
-------------
12.1 Restrictions on announcements
No press conference, announcement or other communication concerning
the transactions referred to in this Agreement, shall be made or
despatched by the Vendors on the one hand or the Purchaser on the
other hand or their agents, employees or advisers to any third party
without the prior written consent of Purchaser or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (as
the case may be) save as may be required by law, court order or any
regulatory authority including the SEC.
12.2 Time limit
The restrictions contained in this Clause 12 shall continue to apply
after Completion without limit in time.
29
13. FURTHER ASSURANCE
-----------------
13.1 The Vendors (other than 3i) shall, from time to time on being
reasonably required to do so by the Purchaser, now or at any time in
the future, do or procure the doing of all such acts and/or execute
or procure the execution of all such documents in a form reasonably
satisfactory to the Purchaser as the Purchaser may reasonably
consider necessary for giving full effect to this Agreement and
securing to the Purchaser the full benefit of the rights, powers and
remedies conferred upon the Purchaser in this Agreement at the cost
and expense of the Vendors.
13.2 3i shall do all such acts and execute all such documents in a form
reasonably satisfactory to the Purchaser as shall be necessary to
effectively transfer to the Purchaser the number of Shares held by 3i
and to deliver to the Purchaser the share certificates relative
thereto.
14. ASSIGNMENT
----------
14.1 Limited assignment
No party may assign the benefit of this Agreement whether absolutely
or by way of security except with the prior written consent of the
other parties, such consent not to be unreasonably withheld or
delayed, (provided that the Purchaser may assign the benefit of this
Agreement to any member of the Purchaser's Group without any such
consent on terms that if such member leaves the Purchaser's Group it
will reassign the benefit of the Agreement to the Purchaser or to
another member of the Purchaser's Group) and any purported assignment
in contravention of this clause shall be ineffective.
14.2 Successors in title
Subject to sub-clause 14.1, this Agreement shall be binding upon and
enure for the benefit of the personal representatives and assigns and
successors in title of each of the parties and references to the
parties shall be construed accordingly.
15. ENTIRE AGREEMENT: REMEDIES
--------------------------
15.1 Entire agreement
15.1.1 This Agreement together with the Tax Deed and the Disclosure Letter
and any other documents in agreed terms constitutes the whole and
only agreement between the parties relating to the subject matter
hereof and supersedes and extinguishes any prior drafts, previous
30
agreements, undertakings, representations, warranties and
arrangements of any nature whatsoever, whether or not in writing
between the parties, in connection with the subject matter hereof.
15.1.2 The Purchaser agrees and acknowledges that it does not enter into
this Agreement in reliance on any warranty, representation,
undertaking, stipulation or agreement other than those contained in
this Agreement.
15.2 Remedies
15.2.1 Subject to Clause 15.2.2, the rights of the Purchaser under this
Agreement are independent, cumulative and without prejudice to all
other rights available to it.
15.2.2 The Purchaser agrees and acknowledges that its only remedies in
respect of any matter which renders any of the Warranties incorrect
or inconsistent with any of them are in breach of contract in respect
of the Warranties concerned.
15.2.3 The Purchaser further agrees and acknowledges that it has no right to
rescind this Agreement either for breach of contract or for negligent
or innocent misrepresentation.
15.2.4 Without prejudice to the generality of the foregoing, the Purchaser
waives any right or remedy it may have against the Vendors in respect
of any statement (whether oral or written) of fact or opinion
whatsoever, including any untrue or misleading statement, Warranty or
representation, expressed or implied, made to the Purchaser or its
agents, officers or employees during the negotiation of or otherwise
in connection with this Agreement save for any Warranty,
representation or undertaking expressly contained in this Agreement.
15.3 Non-exclusion of fraud
Nothing in this Agreement, the Tax Deed or any other document in
agreed terms shall be read or construed as excluding any liability or
remedy as a result of fraud.
16. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
--------------------------------------------
Unless expressly provided in this Agreement no term of this Agreement
is enforceable pursuant to the Contracts (Rights of Third Parties)
▇▇▇ ▇▇▇▇ by any person who is not a party to it.
31
17. WAIVER, VARIATION AND RELEASE
-----------------------------
17.1 No waiver by omission, delay or partial exercise
No omission to exercise or delay in exercising on the part of any
party to this Agreement any right, power or remedy provided by law or
under this Agreement shall constitute a waiver of such right, power
or remedy or any other right, power or remedy or impair such right,
power or remedy. No single or partial exercise of any such right,
power or remedy shall preclude or impair any other or further
exercise thereof or the exercise of any other right, power or remedy
provided by law (as allowed by this Agreement) or under this
Agreement.
17.2 Specific waivers to be in writing
Any waiver of any right, power or remedy under this Agreement must be
in writing and may be given subject to any conditions thought fit by
the grantor. Unless otherwise expressly stated, any waiver shall be
effective only in the instance and only for the purpose for which it
is given.
17.3 Variations to be in writing
No variation to this Agreement shall be of any effect unless it is
agreed in writing and signed by or on behalf of each party.
17.4 Non-release of all Vendors
Any liability to the Purchaser under this Agreement or under the Tax
Deed (when executed) may in whole or in part be released, compounded
or compromised or time or indulgence given by the Purchaser in its
absolute discretion as regards any of the Vendors or Warrantors under
such liability without in any way prejudicing or affecting its rights
against any other or others of the Vendors or Warrantors under the
same or like liability, whether joint or several or otherwise.
18. COSTS AND EXPENSES
------------------
18.1 Payment of costs
Save as otherwise stated in this Agreement, each party shall pay its
own costs and expenses in relation to the negotiation, preparation,
execution and carrying into effect of this Agreement.
18.2 Company and Subsidiaries to pay no costs
For the avoidance of doubt, neither the Company nor any of the
Subsidiaries shall pay any legal or other professional charges and
32
expenses in connection with any investigation of the affairs of the
Group or the negotiation, preparation, execution and carrying into
effect of this Agreement or the Demerger save for the costs of the
Demerger and the costs of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Limited which are taken into
account in the Completion Accounts.
19. NOTICES
-------
19.1 Form of notices
Any communication to be given in connection with the matters
contemplated by this Agreement shall except where expressly provided
otherwise be in writing and shall either be delivered by hand or sent
by first class pre-paid post or facsimile transmission. Delivery by
courier shall be regarded as delivery by hand.
19.2 Address and facsimile
Such communication shall be sent to the address of the relevant party
referred to in this Agreement or the facsimile number set out below
or to such other address or facsimile number as may previously have
been communicated to the other party in accordance with this clause.
Each communication shall be marked for the attention of the relevant
person.
3i Group plc (for the attention of ▇▇▇▇▇▇ ▇▇▇▇▇): facsimile number:
0121 609 3643
Vendors' Representative for the Vendors other than 3i- facsimile
number: 0141 352 5601
Copy to: ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - facsimile number: 0131 226
7700
Purchaser - facsimile number: 001 212 582 8522. For the attention of
▇▇▇▇▇▇▇ ▇▇▇▇▇.
Copies to:
▇▇▇▇▇ Gran - facsimile number: 020 7404 1301
Purchaser's Solicitors (for the attention of ▇.▇. ▇▇▇▇▇) - facsimile
number: 020 7831 7454
33
19.3 Deemed time of service
A communication shall be deemed to have been served:
19.3.1 if delivered by hand at the address referred to in sub-clause 19.2,
at the time of delivery;
19.3.2 if sent by first class pre-paid post to the address referred to in
sub-clause 19.2, at the expiration of two clear days after the time
of posting; and
19.3.3 if sent by facsimile to the number referred to in sub-clause 19.2, at
the time of completion of transmission by the sender.
If a communication would otherwise be deemed to have been delivered
outside normal business hours in the time zone of the territory of
the recipient under the preceding provisions of this clause, it shall
be deemed to have been delivered at the next opening of such business
hours in the territory of the recipient.
19.4 Proof of service
In proving service of the communication, it shall be sufficient to
show that delivery by hand was made or that the envelope containing
the communication was properly addressed and posted as a first class
pre-paid letter or that the facsimile was despatched and a
confirmatory transmission report received.
19.5 Change of details
A party may notify the other parties to this Agreement of a change to
its name, relevant person, address or facsimile number for the
purposes of sub-clause
19.1 Provided that such notification shall only be effective on:
19.5.1 the date specified in the notification as the date on which the
change is to take place; or
19.5.2 if no date is specified or the date specified is less than five clear
Business Days after the date on which notice is deemed to have been
served, the date falling five clear Business Days after notice of any
such change is deemed to have been given.
19.6 Notice to Vendors
Notice given to the Vendors' Representatives shall be deemed to be
notice to all of the Vendors. Any notice to be given by the Vendors
34
shall be sufficiently given on behalf of them all by the Vendors'
Representatives.
19.7 Non-applicability to Proceedings
For the avoidance of doubt, the parties agree that the provisions of
this Clause 19 shall not apply in relation to the service of any
writ, summons, order, judgment or other document relating to or in
connection with any Proceedings.
20. DEFAULT INTEREST
----------------
20.1 Interest on late payment
If a party which is required to pay any sum under this Agreement
fails to pay any sum payable by it under this Agreement on the due
date for payment (the "defaulting party"), it shall pay interest on
such sum for the period from and including the due date up to the
date of actual payment (after as well as before judgment) in
accordance with this clause.
20.2 Amount
The defaulting party shall pay interest at the rate which is the
aggregate of 2% per annum and the base rate from time to time of
Barclays Bank plc.
20.3 Basis of payment
Interest under this clause shall accrue from day to day and shall be
paid by the defaulting party on demand.
21. COUNTERPARTS
------------
21.1 Execution in counterparts
This Agreement may be executed in any number of counterparts and by
the parties on different counterparts, but shall not be effective
until each party has executed at least one counterpart.
21.2 One agreement
Each counterpart shall constitute an original of this Agreement but
all the counterparts shall together constitute one and the same
agreement.
22. INVALIDITY
----------
Each of the provisions of this Agreement is severable. If any such
provision is or becomes illegal, invalid or unenforceable in any
35
respect under the law of any jurisdiction, the legality, validity or
enforceability in that jurisdiction of the remaining provisions of
this Agreement shall not in any way be affected or impaired thereby.
23. AGREEMENT TO CONTINUE IN FULL FORCE AND EFFECT
----------------------------------------------
This Agreement together with the Tax Deed shall to the extent that it
remains to be performed, continue in full force and effect
notwithstanding Completion.
24. CONFIDENTIALITY
---------------
24.1 Prohibition on disclosure
Each of the Vendors hereby undertakes with the Purchaser that he
shall both during and for a period of 3 years after the term of this
Agreement preserve the confidentiality of, and not directly or
indirectly reveal, report, publish, disclose or transfer or use for
his own or any other purposes Confidential Information except:
24.1.1 in the circumstances set out in sub-clause 24.2;
24.1.2 to the extent otherwise expressly permitted by this Agreement;
24.1.3 with the prior consent in writing of the Purchaser;
24.1.4 in the case of 3i it may disclose Confidential Information to such of
its employees and directors (and those of any of its wholly owned
subsidiaries) who it considers need to know this information.
24.2 Permitted disclosures
The circumstances referred to in sub-clause 24.1.1 are:
24.2.1 where the Confidential Information, before it is furnished by any of
the Vendors, is in the public domain;
24.2.2 where the Confidential Information, after it is furnished by any of
the Vendors, enters the public domain otherwise than as a result of
(i) a breach by any of the Vendors of its obligations in this Clause
24 or (ii) a breach by the person who disclosed that Confidential
Information of a confidentiality obligation and any of the Vendors is
aware of such breach;
24.2.3 if and to the extent the Vendors make disclosure of the Confidential
Information to any person:
(a) in compliance with any requirement of any applicable law,
court order or regulatory body; or
36
(b) in order to obtain tax or other clearances or consents
from the Inland Revenue or other relevant taxing or
regulatory authorities.
Provided that any such information disclosable pursuant to paragraphs
(a) or (b) of sub-clause 24.2.3 shall be disclosed only to the extent
required by law, court order or regulatory body and then only after
consultation with the Purchaser, provided always that this obligation
of consultation shall not apply unless such consultation is
permissible in accordance with such requirements.
24.3 No time limit
The restrictions contained in this clause shall continue to apply
after Completion without limit in time.
25. GOVERNING LAW AND JURISDICTION
------------------------------
25.1 English law
This Agreement shall be governed by and construed in accordance with
English law.
25.2 Courts of England and Wales
The parties to this Agreement irrevocably agree that, for the
exclusive benefit of the Purchaser, the courts of England shall have
jurisdiction to settle any dispute which may arise out of or in
connection with this Agreement and that accordingly any Proceedings
may be brought in such courts.
37
25.3 Service of proceedings
The Purchaser irrevocably appoints the Purchaser's Solicitors as its
process agent to receive on its behalf service of any process in any
proceedings in England. Such service shall be deemed completed on
delivery to the process agent, (marked for the attention ▇.▇. ▇▇▇▇▇)
whether or not such process is forwarded to and received by the
Purchaser. If for any reason such process agent ceases to be able or
willing to act as process agent, the Purchaser irrevocably agrees to
appoint another firm of English solicitors as a substitute process
agent and to deliver to the other parties a copy for the new process
agent's acceptance of that appointment within 30 days of such
acceptance.
IN WITNESS whereof the parties hereto have executed this Agreement as a Deed and
delivered it the day and year first above written
38
SCHEDULE 1
==========
THE VENDORS
Name and Address:
Iain ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
The Glassert, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ , ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Ballabeg, Dykehead, Port of Monteith
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
39
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ , ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Elmgrove, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
Elmgrove, ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
3i Group plc
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
40
SCHEDULE 1
CONSID-
TYPE AND NUMBER OF SHARES HELD CASH ERATION
---------------------------------------------- PAYABLE IN LOAN NOTES SHARES IN
Name Ordinary A Ordinary B Ordinary Total TOTAL (pound) IN TOTAL TOTAL
----- ---------------- -----
IVR ▇▇▇▇▇▇▇▇ 8848 - - 8848 (pound)12,028.49 (pound)0 18703
F ▇▇▇▇▇▇▇▇ 9505 - - 9505 (pound)688,253.53 (pound)0 351
P ▇▇▇▇▇▇▇▇ 93965 - 6629 100594 (pound)45.58 (pound)6,077,059 38993
J Cowderoy 108052 - 6632 114684 (pound)17.03 (pound)6,812,757 47832
I Cowderoy 23753 - 1655 25408 (pound)1,871,881.90 (pound)0 0
D ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - - ▇▇▇▇▇▇ (pound)6,443,834.54 (pound)0 ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ - - ▇▇▇▇▇ (pound)4,666,520.07 (pound)747,706 ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ - - ▇▇▇▇▇ (pound)4,657,413.85 (pound)747,706 34682
K ▇▇▇▇▇▇▇▇▇ 1233 - 742 1975 (pound)2,745.71 (pound)0 4173
M Macdonald 3110 - 5887 8997 (pound)660,132.80 (pound)0 79
▇ ▇▇▇▇▇ 3987 - 2868 6855 (pound)43.68 (pound)283,714 6468
A ▇▇▇▇▇ 6075 - 3761 9836 (pound)724,646.98 (pound)0 ▇
▇ ▇▇▇▇▇▇▇▇ ▇▇▇ - 826 1736 (pound)2,413.93 (pound)0 3668
I Lauchlan 3433 - 4477 7910 (pound)580,426.63 (pound)0 68
K ▇▇▇▇▇▇▇▇▇ 5365 - - 5365 (pound)322,182.73 (pound)0 2136
L ▇▇▇▇▇▇▇▇▇ 145 - - 145 (pound)10,682.58 (pound)0 0
3i - Ord - 152914 - 152914 (pound)9,237,791.05 (pound)0 59276
- ------ - ------ ------------------- -------- -----
Total 551044 152914 33477 737435 (pound)29,881,061.08 (pound)14,668,942.00 285852
% OF
% OF TOTAL CASH LOAN CASH
Name TOTAL CONSID. CONSID. IN NOTES IN PAYABLE ON
CONSID. EXC 3i ESCROW ESCROW CLOSING
------- ------ ------ ------ -------
IVR ▇▇▇▇▇▇▇▇ 1.20% 1.51% (pound)11,998.35 (pound)0 (pound)30.14
F ▇▇▇▇▇▇▇▇ 1.29% 1.63% (pound)12,889.27 (pound)0 (pound)675,364.25
P ▇▇▇▇▇▇▇▇ 13.64% 17.21% (pound)0.67 (pound)136,410 (pound)44.91
J Cowderoy 15.55% 19.62% (pound)0.44 (pound)155,517 (pound)16.59
I Cowderoy 3.45% 4.35% (pound)34,454.56 (pound)0 (pound)1,837,427.34
▇ ▇▇▇▇▇▇▇▇ 14.04% 17.72% (pound)140,446.28 - (pound)6,303,388.27
N ▇▇▇▇▇▇▇▇ 12.15% 15.33% (pound)0.07 (pound)121,532 (pound)4,666,520.00
G ▇▇▇▇▇▇▇▇ 12.13% 15.31% (pound)0.30 (pound)121,327 (pound)4,657,413.54
K Macdonald 0.27% 0.34% (pound)2,678.20 (pound)0 (pound)67.51
M Macdonald 1.22% 1.54% (pound)12,200.40 (pound)0 (pound)647,932.40
▇ ▇▇▇▇▇ 0.93% 1.17% (pound)0.73 (pound)9,295 (pound)42.95
A ▇▇▇▇▇ 1.33% 1.68% (pound)13,338.12 (pound)0 (pound)711,308.85
W Lauchlan 0.24% 0.30% (pound)2,354.11 (pound)0 (pound)59.83
I Lauchlan 1.07% 1.35% (pound)10,726.37 (pound)0 (pound)569,700.26
K ▇▇▇▇▇▇▇▇▇ 0.73% 0.92% (pound)7,275.22 - (pound)314,907.51
L ▇▇▇▇▇▇▇▇▇ 0.02% 0.02% (pound)196.63 - (pound)10,485.95
3i - Ord 20.74% 0.00% (pound)207,359.29 - (pound)9,030,431.76
------ ----- ----------------- - -------------------
Total 100.0% 100.0% (pound)455,919.00 (pound)544,081 (pound)29,425,142.08
41
SCHEDULE 2
==========
PART 1
------
The Company
1. Registered Number: SC212855
2. Date of Incorporation: 15th November 2000
3. Place of Incorporation: Scotland
4. Address of Registered Office: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇ ▇▇▇
5. Class of Company: Private
6. Authorised Share Capital: (pound)820,683
7. Issued Share Capital: (pound)820,683 comprising
152,914 A Ordinary Shares of (pound)1 each
33,477 B Ordinary Shares of (pound)1 each
551,044 Ordinary Shares of (pound)1 each
83,248 Deferred Shares of (pound)1 each
8. Loan Capital: None
9. Accounting Reference Date: 30th November
10. Directors:
Full Name Usual Residential Address Nationality
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ British
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ British
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
11. Secretary:
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
42
12. Auditors: Ernst & Young, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇
13. Bankers: Bank of Scotland, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇ ▇▇▇
43
PART 2
------
The Subsidiaries
1. Name of Subsidiary: Stirling Shipping Company Limited
2. Registered Number: SC159842
3. Date of Incorporation: 17th August 1995
4. Place of Incorporation: Scotland
5. Address of Registered Office: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇ ▇▇▇
6. Class of Company: Private
7. Authorised Share Capital: (pound)1,000,000
8. Issued Share Capital: (pound) 802,010
Held by: Stirling Shipping Holdings Limited
9. Loan Capital: None
10. Accounting Reference Date: 31st December
11. Directors:
Full Name Usual Residential Address Nationality
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ British
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ British
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Findrack, Torphins, Aberdeenshire AB31 4LJ British
44
12. Secretary:
Full Name Usual Residential Address
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
13. Auditors: Ernst & Young, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇
14. Bankers: Bank of Scotland, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇
45
1. Name of Subsidiary: Stirling Offshore Limited
2. Registered Number: SC041594
3. Date of Incorporation: 8th January 1965
4. Place of Incorporation: Scotland
5. Address of Registered Office: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇ ▇▇▇
6. Class of Company: Private
7. Authorised Share Capital: (pound)2,000,000
8. Issued Share Capital: (pound) 831,400
Held by: Stirling Shipping Company Limited
424,014 A Ordinary Shares
407,386 B Ordinary Shares
9. Loan Capital: None
10. Accounting Reference Date: 31st December
11. Directors:
Full Name Usual Residential Address Nationality
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
12. Secretary:
Full Name Usual Residential Address
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
13. Auditors: Ernst & Young, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇
14. Bankers: Bank of Scotland, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇
46
1. Name of Subsidiary: Stirling Marine Limited
2. Registered Number: SC108613
3. Date of Incorporation: 11th January 1988
4. Place of Incorporation: Scotland
5. Address of Registered Office: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇ ▇▇▇
6. Class of Company: Private
7. Authorised Share Capital: (pound)334,000
8. Issued Share Capital: (pound)334,000
Held by: Stirling Shipping Company Limited
334,000 Ordinary Shares
9. Loan Capital: None
10. Accounting Reference Date: 31st December
11. Directors:
Full Name Usual Residential Address Nationality
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
12. Secretary:
Full Name Usual Residential Address
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
13. Auditors: Ernst & Young, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇
14. Bankers: Bank of Scotland, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇
47
1. Name of Subsidiary: ▇▇▇▇▇ Marine Limited
2. Registered Number: SC 11094
3. Date of Incorporation: 3rd May 1988
4. Place of Incorporation: Scotland
5. Address of Registered Office: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇ ▇▇▇
6. Class of Company: Private
7. Authorised Share Capital: (pound)1,000
8. Issued Share Capital: (pound)2
Held by: Stirling Shipping Company Limited
2 Ordinary Shares
9. Loan Capital: None
10. Accounting Reference Date: 31st December
11. Directors:
Full Name Usual Residential Address Nationality
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
12. Secretary:
Full Name Usual Residential Address
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
13. Auditors: Ernst & Young, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇
14. Bankers: Bank of Scotland, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇
48
1. Name of Subsidiary: Haven Shipping Company Limited
2. Registered Number: SC 044380
3. Date of Incorporation: 7th March 1967
4. Place of Incorporation: Scotland
5. Address of Registered Office: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇ ▇▇▇
6. Class of Company: Private
7. Authorised Share Capital: (pound)100
8. Issued Share Capital: (pound)100
Held by: IVR ▇▇▇▇▇▇▇▇ and Stirling Shipping
Company Limited (jointly)
1 Ordinary Share
Stirling Shipping Company Limited
99 Ordinary Shares
9. Loan Capital: None
10. Accounting Reference Date: 31st December
11. Directors:
Full Name Usual Residential Address Nationality
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ British
12. Secretary:
Full Name Usual Residential Address
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
13. Auditors: Ernst & Young, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇
14. Bankers: Bank of Scotland, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇
49
1. Name of Subsidiary: Stirling Trustees Limited
2. Registered Number: SC160232
3. Date of Incorporation: 7th September 1995
4. Place of Incorporation: Scotland
5. Address of Registered Office: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇ ▇▇▇
6. Class of Company: Private
7. Authorised Share Capital: (pound)1,000
8. Issued Share Capital: (pound)2
Held by: Stirling Shipping Company Limited
2 Ordinary Shares
9. Loan Capital: None
10. Accounting Reference Date: 31st December
11. Directors:
Full Name Usual Residential Address Nationality
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
12. Secretary:
Full Name Usual Residential Address
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
13. Auditors: Ernst & Young, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇
14. Bankers: Bank of Scotland, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇
50
1. Name of Subsidiary: Stirling Shipmanagement Limited
(formerly known as Stirling Ferries
Limited)
2. Registered Number: SC182248
3. Date of Incorporation: 20th January 1998
4. Place of Incorporation: Scotland
5. Address of Registered Office: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇ ▇▇▇
6. Class of Company: Private
7. Authorised Share Capital: (pound)2,000,000
8. Issued Share Capital: (pound)2
Held by: Stirling Shipping Company Limited
2 Ordinary Shares
9. Loan Capital: None
10. Accounting Reference Date: 31st December
11. Directors:
Full Name Usual Residential Address Nationality
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ British
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Elmgrove, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ British
Lauchlan Argyll ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
12. Secretary:
Full Name Usual Residential Address
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
13. Auditors: Ernst & Young, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇
14. Bankers: Bank of Scotland, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇
51
1. Name of Subsidiary: Stirling Shipping (Malta) Limited
2. Registered Number: C14865
3. Date of Incorporation: 23rd March 1993
4. Place of Incorporation: Malta
5. Address of Registered Office: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇
6. Class of Company: Limited Liability Private
7. Authorised Share Capital: Lm500
8. Issued Share Capital: Lm 100 (500 ordinary shares of Lm
1.00 each 20% paid up)
Held by: Stirling Shipping Company Limited
499
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Giappone LL.D
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
1
52
SCHEDULE 3
==========
THE PROPERTY
PROPERTY: 16 & ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
DATE OF LEASE: 18th January 1996
TERM: From 05/01/1996 to 31/12/2005
PARTIES: (1) Harrisons (▇▇▇▇▇) Limited
(2) Stirling Shipmanagement Limited
CURRENT YEARLY RENT: (pound)60,000 p.a.
EXISTING USE: Offices
53
SCHEDULE 4
==========
THE WARRANTIES
--------------
(Note that under Clause 1.11 references herein to the Company shall be deemed to
include a corresponding reference to the Subsidiaries and each of them severally
and references to the Accounts are to those of SS Co or the relevant Subsidiary
as the case may be.)
PART 1
------
GENERAL WARRANTIES
1. Preliminary
1.1 Information
1.1 The facts set out in the recitals and schedules 1, 2 and 3 are true
and accurate.
1.2 Power to contract
Each Vendor and Covenantor (as defined in the Tax Deed) has full
power to enter into and perform this Agreement and the Tax Deed
respectively and this Agreement constitutes, and the Tax Deed when
executed will constitute, binding obligations on each Vendor or
Covenantor (as the case may be) in accordance with their terms.
2. The Company
2.1 Memorandum and articles of association
The copy of the memorandum and articles of association of the Company
which is comprised in the Disclosure Documents is true and complete
in all respects and has embodied in it or annexed to it a copy of
every such resolution and agreement as is referred to in section
380(4), CA 85 and the Company has at all times carried on its
business and affairs in all material respects in accordance with its
memorandum and articles of association and all such resolutions and
agreements.
2.2 Statutory returns
The Company has complied in all material respects with the provisions
of the Companies Acts and so far as the Warrantors are aware all
returns, particulars, resolutions and other documents required to be
filed with or delivered to the Registrar of Companies by the Company
have been correctly and properly prepared and so filed or delivered.
2.3 Share capital
54
2.3.1 The Shares constitute the whole of the issued share capital of the
Company. There is no Encumbrance or any form of agreement (including
conversion rights and rights of pre-emption) on, over or affecting
the Shares or any unissued shares, debentures or other securities of
the Company and there is no agreement or commitment to give or create
any of the foregoing. No claim has been made to the Company or any of
its officers by any person to be entitled to any of the foregoing and
no person has the right (exercisable now or in the future and whether
contingent or not) to call for the issue of any share or loan capital
of the Company under any of the foregoing.
2.3.2 The Company has not at any time during the last six years:
(a) repaid, redeemed or purchased (or agreed to repay, redeem or
purchase) any of its own shares, or otherwise reduced (or
agreed to reduce) its issued share capital or any class of it
or capitalised (or agreed to capitalise) in the form of
shares, debentures or other securities or in paying up any
amounts unpaid on any shares, debentures or other securities,
any profits or reserves of any class or description or passed
(or agreed to pass) any resolution to do so; or
(b) directly or indirectly provided any financial assistance for
the purpose of the acquisition of shares in the Company or any
holding company of the Company or for the purpose of reducing
or discharging any liability incurred in such an acquisition
whether pursuant to sections 155 and 156, CA 85 or otherwise.
2.4 Solvency
The Company has not stopped payment and is not insolvent nor unable
to pay its debts according to section 123, Insolvency ▇▇▇ ▇▇▇▇. No
order has ever been made or petition presented or resolution passed
for the winding up of the Company and no distress, execution or other
process has been levied on any of its assets which is still
outstanding. No administrative or other receiver has been appointed
by any person over the business or assets of the Company or any part
thereof, nor has any order been made or petition presented for the
appointment of an administrator in respect of the Company.
3. Connected business
3.1 Subsidiaries
The shares in the Subsidiaries are held by the Company free from all
Encumbrances and with all rights now or hereafter attaching thereto.
3.2 Connected transactions
The Company:
3.2.1 is not and has not agreed to become the holder or other owner of any
class of any shares, debentures or other securities of any other body
55
corporate (whether incorporated in the United Kingdom or elsewhere)
other than the Subsidiaries;
3.2.2 save for the transaction contemplated by this Agreement, has not
agreed to become a subsidiary of any other body corporate or under
the control of any group of bodies corporate or consortium;
3.2.3 is not and has not agreed to become a member of any partnership,
joint venture, consortium or other unincorporated association other
than a recognised trade association or agreement or arrangement for
sharing commissions or other income;
3.2.4 has no branch, place of business or substantial assets outside
England and Wales or any permanent establishment (as that expression
is defined in any relevant Order in Council made pursuant to section
788, ICTA 1988) in any country outside the United Kingdom; and
3.2.5 save as otherwise disclosed pursuant to paragraphs 3.2.1 to 3.2.4,
does not have any interest, legal or beneficial, in any shares or
other capital or securities or otherwise howsoever in any other firm,
company, association, venture or legal person or entity.
4. Accounts
4.1 General
The Accounts:
4.1.1 were prepared in accordance with the requirements of all relevant
statutes, with good accounting principles and practices generally
accepted at the date of their preparation in the United Kingdom
(including the Accounting Standards) for companies carrying on a
similar business to that of the Company and on a basis consistent
with the three preceding accounting periods of the Company and with
the books of account of the Company;
4.1.2 disclose a true and fair view of the assets, liabilities and state of
affairs of the Company at the Balance Sheet Date and of its profits
for the financial year ended on such date;
4.1.3 contain proper provision or reserve for bad and doubtful debts,
obsolescent or slow-moving stocks and for depreciation on fixed
assets, which provision or reserve was adequate when made;
4.1.4 contain a note of all capital commitments of the Company at the
Balance Sheet Date, which note was adequate, fair and not misleading
when made;
4.1.5 contain proper and adequate reserves or provision for all Taxation,
including deferred taxation as defined in SSAP 15.
4.1.6 disclose, note or provide for all liabilities of the Company which
were known, actual or contingent (including contingent liabilities to
56
customers and contingent liabilities for Taxation);
4.1.7 value the stock-in-trade at the lower of cost and net realisable
value and such stock-in-trade does not include any redundant,
obsolete or unsaleable items save as provided for;
4.1.8 reflect all the fixed and loose plant and machinery, equipment,
furniture, fittings and vehicles used by the Company at the Balance
Sheet Date and (apart from depreciation in the ordinary course of
business) their value is not less than at the Balance Sheet Date and
none has been acquired otherwise than by way of a bargain at arm's
length.
4.2 Profits
The profits of the Company as shown by the Accounts have not (except
as Disclosed in them) been affected to a material extent by
inconsistencies of accounting practices, by the inclusion of
non-recurring items of income or expenditure, by transactions entered
into otherwise than on normal commercial terms or by any other
factors rendering such profits for all or any of such periods
exceptionally high or low.
4.3 Books of account
All accounts, books, ledgers and financial records of whatsoever kind
of the Company (including all invoices and other records required for
VAT purposes) comply with the provisions of Section 221 of CA85:
5. Post-Balance Sheet Date events
5.1 Since the Balance Sheet Date, the Company:
5.1.1 has carried on its business in the ordinary and usual course and
without entering into any transaction, assuming any liability or
making any payment not provided for in the Accounts which is not in
the ordinary course of business and without any material interruption
or material alteration in the nature, scope or manner of its
business;
5.1.2 has not experienced any material deterioration in its financial
position or turnover or so far as the Warrantors are aware suffered
any diminution of its assets by the wrongful act of any person and
the Company has not had its business or profitability materially and
adversely affected by the loss of any important customer or source of
supply or by any abnormal factor not affecting similar businesses to
a like extent and so far as the Warrantors are aware there are no
facts which are likely to give rise to any such effects;
5.1.3 has not acquired or disposed of or agreed to acquire or dispose of
any assets or assumed or incurred or agreed to assume or incur any
material liabilities (actual or contingent) otherwise than in the
ordinary course of business;
57
5.1.4 has not declared, made or paid any dividend, bonus or other
distribution of capital or income (whether a qualifying distribution
or otherwise) other than the Pre-Completion Dividends and (excluding
fluctuations in overdrawn current accounts with bankers) no loan or
loan capital of the Company has been repaid in whole or in part or
has become due or, so far as the Warrantors are aware, is liable to
be declared due by reason of either service of a notice or lapse of
time or otherwise howsoever;
5.1.5 has not carried out or entered into any transaction and so far as the
Warrantors are aware no other event has occurred in consequence of
which (whether alone or together with any one or more transactions or
events occurring before, on or after the date of this Agreement) any
liability of the Company to Taxation has arisen or will arise (or
would have arisen or would or might arise but for the availability of
any relief, allowance, deduction or credit) other than corporation
tax on the actual income (not chargeable gains or deemed income) of
the Company arising from transactions entered into in the ordinary
course of business, income tax under the PAYE system and national
insurance and social security contributions in respect of persons
employed by it since the Balance Sheet Date and VAT in respect of
taxable supplies made by it in the ordinary course of business since
the Balance Sheet Date;
5.1.6 has not made any change to the remuneration, terms of employment,
emoluments or pension benefits of any present or former director,
officer or employee of the Company who on the Balance Sheet Date was
entitled to remuneration (excluding benefits in kind) in excess of
(pound)40,000 per annum and has not appointed or employed any
additional director, officer or employee entitled as aforesaid;
5.1.7 has received payment in full of all debts owing to the Company shown
in the Accounts (subject to any provision for bad and doubtful debts
made in the Accounts), has not released any debts in whole or in part
and has not written off debts in an amount exceeding (pound)20,000 in
the aggregate;
5.1.8 has not entered into contracts involving capital expenditure in an
amount exceeding(pound)100,000 in the aggregate;
5.1.9 so far as the Warrantors are aware the Company has not done or
omitted to do anything which would entitle any third party to
terminate any contract or any benefit enjoyed by it or call in any
money before the normal due date therefor;
5.1.10 has not purchased stock in quantities or at prices materially greater
than was the normal practice of the Company in the financial year
ended on the Balance Sheet Date;
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5.1.11 has paid its creditors in the ordinary course of business consistent
with the practice adopted by the Company during the twelve months
preceding the date of this Agreement; 5.1.12 has not borrowed or
raised any money or taken any financial facility (except such short
term borrowings from bankers as are within the amount of any
overdraft facility which was available to the Company at the Balance
Sheet Date) or since the Balance Sheet Date renegotiated or received
any notice from any banker that such banker wishes to renegotiate any
overdraft facility available to the Company at the Balance Sheet
Date;
5.1.13 has not made any change to its accounting reference date and no
accounting period of the Company has ended since the Balance Sheet
Date;
5.1.14 so far as the Warrantors are aware has not made a payment or incurred
an obligation to make a payment which will not be deductible in
computing trading profits for the purposes of corporation tax or as a
management expense of the Company; and
5.1.15 (including any class of its members) has not passed any resolution
whether in general meeting or otherwise.
6. Transactions with the Vendors, Directors and Connected Persons
6.1 Loans and debts
There is not outstanding:
6.1.1 any indebtedness or other liability (actual or contingent) owing by
the Company to any Vendor or Director or any Connected Person or
owing to the Company by any Vendor or Director or any Connected
Person other than sums due under any relevant service agreements or
letters of appointment as set out in the Disclosure Letter; or
6.1.2 any guarantee or security for any such indebtedness or liability as
aforesaid.
6.2 Arrangements with Connected Persons
6.2.1 There is not outstanding, and there has not at any time during the
last three years been outstanding, any agreement, arrangement or
understanding (whether legally enforceable or not) to which the
Company is a party and in which any Warrantor or, so far as the
Warrantors are aware, Director or former director of the Company or
any Connected Person is or has been interested whether directly or
indirectly.
6.2.2 The Company is not a party to nor has its profits or financial
position during the last three years been affected by any agreement
or arrangement which is not entirely of an arm's length nature.
6.3 Competitive interests
6.3.1 No executive Director of the Company nor any Connected Person, either
individually, collectively or with any other person or persons, has
59
any estate, right or interest, directly or indirectly, in any
business other than that now carried on by the Company which is
competitive with any aspect of the Business of the Company save as
registered holder or other owner of any class of securities of any
company if such class of securities is listed on any recognised
investment exchange (as defined in the Financial Services Act 1986)
and if such person (together with Connected Persons and Affiliates)
holds or is otherwise interested in less than five % of such class of
securities.
6.4 Benefits
6.4.1 No Connected Person of any Warrantor or so far as the Warrantors are
aware, Director or former director of the Company is entitled to or
has claimed entitlement to any remuneration, compensation or other
benefit from the Company other than sums due under any relevant
service agreement or letters of appointment.
7. Finance
7.1 Borrowings
7.1.1 Particulars of all outstanding money borrowed by the Company have
been Disclosed. The total amount borrowed and still outstanding by
the Company from any source does not exceed any limitation on its
borrowing contained in the articles of association of the Company or
in any debenture or loan stock trust deed or instrument or any other
document executed by the Company and the amount borrowed by the
Company from each of its bankers does not exceed the overdraft
facility agreed with such banker. The Company has no outstanding loan
capital.
7.2 Debts owed to the Company
7.2.1 All debts owed to the Company are fully collectable in the ordinary
course of business and each such debt will realise in full its face
value within six months of its due date for payment. The Company does
not own the benefit of any debt (whether present or future) other
than debts which have accrued to it in the ordinary course of
business.
7.3 Bank accounts
7.3.1 Particulars of the balances on all the Company's bank accounts as at
30th April 2000 have been Disclosed and the Company has no other bank
accounts.
7.3.2 All unpresented cheques drawn by the Company have been Disclosed and
there are no such unpresented cheques drawn otherwise than in the
normal course of business.
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7.4 Financial facilities
7.4.1 The Warrantors have Disclosed accurate details and true and correct
copies of all documents relating to all debentures, acceptance lines,
overdrafts, loans or other financial facilities outstanding or
available to the Company and all Encumbrances to which any asset of
the Company is subject. So far as the Warrantors are aware neither
the Vendors nor the Company have done anything (including without
limitation the declaration and payment of the Pre-Completion
Dividends) whereby the continuance of any such facility or
Encumbrance in full force and effect might be affected or prejudiced
or terminated.
7.5 Grants
7.5.1 Full details of all grants made to the Company in the last three
years have been disclosed. No act or transaction has been effected in
consequence whereof the Company is or may be held liable to refund in
whole or in part any investment grant, building ▇▇▇▇▇, ▇▇▇▇▇ under
the Local Employment Acts 1970 to 1972, grant under the Industry Acts
1971 to 1982, grant under the Industrial Development Act 1982 or loan
received by virtue of any statute or in consequence whereof any such
grant or loan for which application has been made by it will not or
may not be paid or will or may be reduced.
7.6 Options and guarantees
7.6.1 The Company is not responsible for the indebtedness of any other
person nor party to any option or pre-emption right or any guarantee,
suretyship or any other obligation (whatever called) to pay, purchase
or provide funds (whether by the advance of money, the purchase of or
subscription for shares or other securities or the purchase of assets
or services or otherwise) for the payment of, or as an indemnity
against the consequence of default in the payment of, any
indebtedness of any other person.
7.6.2 No person other than the Company or a Subsidiary has given any
guarantee of or security for any overdraft, loan or loan facility
granted to the Company or any Subsidiary.
8. The Property
8.1 General
8.1.1 The Property comprises all the land and premises owned, controlled,
used or occupied by the Company and all the rights or interests
vested in the Company relating to any land and premises at the date
hereof and the particulars set out in Schedule 3 are true and
accurate in all material respects. .
8.1.2 The Company has not:
(a) surrendered any lease, licence or tenancy to the landlord
without first satisfying itself that the landlord had good
61
title to accept such surrender and without receiving from the
landlord an absolute release from all liability arising under
such lease, licence or tenancy;
(b) assigned, or otherwise disposed of, any lease, licence or
tenancy without receiving a full and effective indemnity from
the assignee or transferee in respect of its liability under
such lease, licence or tenancy;
(c) been a guarantor of a tenant's liability under any lease,
licence or tenancy; or
(d) assigned or otherwise disposed of any leasehold property in
such a way that it retains any other residual liability in
respect thereof.
8.1.3 The Company has good title to the leasehold interest in the Property.
8.1.4 The Company has in its possession or unconditionally held to its
order the documents of title relating to its leasehold interest in
the Property.
8.1.5 There is no person in possession or occupation of or who has or
claims any right of any kind in respect of the Property adversely to
the estate, interest, right or title therein of the Company;
8.1.6 So far as the Warrantors are aware there are no disputes or
outstanding notices (whether given by a landlord, a local authority
or any other person) or any other matters or things which in the
reasonable opinion of the Warrantors adversely affect proper use and
enjoyment of the Property for the purpose of the business now being
carried on at the Property by the Company.
8.1.7 The Property is not subject to the payment of any outgoings other
than the usual rates and rents and other sums due under the relevant
Lease and taxes and all sums due to date in respect thereof have been
paid.
8.1.8 So far as the Warrantors are aware no proposal relating to the
rateable value of the Property has been determined by the Valuation
and Community Charge Tribunal or Land Tribunal and so far as
aforesaid there is no subsisting proposal to challenge the rateable
value of any of the Properties.
8.1.9 The Company has not entered into any commitment (whether legally
binding or not) and the Company is not party to any subsisting
agreement with any person or company whereby a fee (including but not
limited to an abort fee) will be paid to such person or company in
respect of the management, use, development, letting or sale of the
Property.
8.2 Planning
8.2.1 So far as the Warrantors are aware in relation to the Property, its
existing use is the Existing Use.
8.2.2 So far as the Warrantors are aware there are no lawfully enforceable
restrictions or prohibitions which restrict or prohibit the Existing
Use of the Property.
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8.2.3 So far as the Warrantors are aware the Existing Use of the Property
is the permitted use under the Town and Country Planning legislation
applicable in Scotland and is not a temporary or personal use.
8.2.4 So far as the Warrantors are aware all development carried out since
1st January 1996 in relation to the Property relating to the Existing
Use has been lawful.
8.3.1 Particulars of the lease in relation to the Property are set out in
Schedule 3 and in relation to such lease:
(a) where the current annual rent is not the same as the annual
rent originally reserved in the lease, evidence of its
agreement or determination has been placed with the documents
of title and no rent reviews are or should be currently under
negotiation or the subject of a reference to an expert or
arbitrator or the courts;
(b) no notices of breaches of any covenants or conditions
contained in the lease have been given or received on the part
of either the landlord or the Company and the landlord has not
refused to accept rent or made any complaint of breach of
covenant;
(c) no alterations, improvements or additions have been made to
the Property to which the lease relates since the grant of the
lease or in respect of all such alterations, improvements or
additions made all necessary consents and approvals have first
been obtained.
8.4 Inferior leases
8.4.1 The Property is not subject to any lease, tenancy agreement or right
of occupation in favour of a third party.
8.5 Statutory compliance
So far as the Warrantors are aware the Company has not received
notice of any allegation of breach of the requirements of:
the Shops ▇▇▇ ▇▇▇▇ and 1965
the Clean Air ▇▇▇ ▇▇▇▇
the Construction (Design and Management) Regulations 1995
the ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
the Offices, Shops and Railway Premises Act 1963
the Fire Precautions ▇▇▇ ▇▇▇▇
the Health and Safety at Work etc. ▇▇▇ ▇▇▇▇
the Control of Pollution ▇▇▇ ▇▇▇▇
the Planning (Hazardous Substances) (Scotland) ▇▇▇ ▇▇▇▇
the Public Health Acts
or other legislation in force at the date of Completion concerning
health or safety matters or any regulations, orders, notices or
63
directions made under any of such legislation which affects the
Property.
8.5.1 Where required, a fire certificate has been issued in respect of the
Property and so far as the Warrantors are aware the Property complies
in all respects with current fire regulations and the current
requirements of the insurers of the Property
8.6 Condition and repair
8.6.1 Since 18th January 1996 the Company has maintained the Property in
accordance with its obligations under the Lease.
9. Environmental
9.1 Compliance with Environmental Law
The Business has been conducted, at all material times in compliance
in all material respects with Environmental Law and so far as the
Warrantors are aware the Property has been used at all material times
in compliance with Environment Law.
9.2 Permits
All Permits have been obtained and have been disclosed to the
Purchaser and are in full force and effect.
10. Other assets
10.1 Title
10.1.1 The Company owns absolutely all assets of the Company (other than the
Property) which are included in the Accounts or which were at the
Balance Sheet Date used or held for the purposes of its business and
(except for assets disposed of or realised by the Company in the
ordinary course of business) the Company retains such title to all
such assets free from any Encumbrance, hire or hire purchase
agreement or leasing agreement or agreement for payment on deferred
terms and all such assets are in the possession and control of the
Company and other than the Vessels from time to time and the fuel and
the spare parts therein or thereon are sited within the United
Kingdom.
10.1.2 The Company has not acquired or agreed to acquire any material fixed
asset on terms that title to such asset does not pass to the Company
until full payment is made.
10.2 Encumbrances
The Company owns absolutely all assets which have been acquired by
the Company since the Balance Sheet Date (except for assets disposed
of or realised by the Company in the ordinary course of business) and
the same are in the possession and control of the Company and none is
64
the subject of any Encumbrance (other than retention of title in the
ordinary course of business) nor has the Company created or agreed to
create any Encumbrance or entered into any factoring arrangement,
hire-purchase, conditional sale or credit sale agreement which has
not been disclosed and in respect of any such Encumbrance,
arrangement or agreement so disclosed there has been no material
default by the Company in the performance or observance of any of the
provisions thereof.
10.3 Condition of assets
Save for the Vessels the plant and machinery (including fixed plant
and machinery) and all vehicles and office and other equipment shown
in the Accounts or acquired since the Balance Sheet Date or otherwise
used in connection with the Business which have not been disposed of
in the ordinary course of business:
10.3.1 so far as the Warrantors are aware do not contravene any requirement
or restriction having the force of law;
10.3.2 so far as the Warrantors are aware are in good repair and condition
taking into account their age and are regularly maintained,
serviceable and in satisfactory working order;
10.3.3 so far as the Warrantors are aware are each capable of doing the work
for which they were designed and/or purchased and will each be so
capable (subject to fair wear and tear) during the period of time
over which the value of such assets will be written down to nil in
the accounts of the Company;
10.3.4 are not surplus to the Company's requirements; and
10.3.5 so far as the Warrantors are aware are not dangerous, and the
vehicles owned by the Company are roadworthy and duly licensed for
the purposes for which they are used.
10.4 Rental payments
Rentals payable by the Company under any leasing, hire-purchase or
other similar agreement to which it is a party are set out in the
Disclosure Documents and have not been be increased and all such
rentals are fully deductible by the Company for tax purposes.
11. Litigation
11.1 Litigation and arbitration proceedings
11.1.1 Save as plaintiff in the collection of debts (not exceeding
(pound)10,000 in the aggregate) arising in the ordinary course of
business, the Company is not now engaged in any litigation,
arbitration or criminal proceedings and so far as the Warrantors are
aware there are no lawsuits or arbitration proceedings pending or
65
threatened by or against the Company or any person for whose acts or
defaults the Company may be vicariously liable.
11.1.2 The Company has not, in the last three years preceding the date of
this Agreement, been involved in any litigation, arbitration,
criminal proceedings or material dispute with any person who is or
was a supplier or customer of importance to the Company or the
Business which is still outstanding.
11.1.3 So far as the Warrantors are aware there is no matter or fact in
existence which might be likely (in the reasonable opinion of the
Warrantors) to give rise to any legal proceedings or arbitration
involving the Company including any which might form the basis of any
criminal prosecution against the Company.
11.2 Injunctions, etc.
So far as the Warrantors are aware no injunction or order for
specific performance has been granted against the Company.
11.3 Orders and judgments
The Company is not subject to any order or judgment given by any
court or governmental agency which is still in force and has not
given any undertaking to any court or to any third party arising out
of any legal proceedings which is still in force.
12. Licences
12.1 General
So far as the Warrantors are aware the Company has all necessary
licences (including statutory licences), permits, consents and
authorities (public and private) for the proper and effective
carrying on of the Business in the manner in which the Business is
now carried on and all such licences, permits, consents and
authorities are valid and subsisting and the Warrantors know of no
reason why any of them should be suspended, cancelled or revoked
whether in connection with the sale to the Purchaser or otherwise
and, so far as the Warrantors are aware, there are no factors that
would in any way prejudice the continuance or renewal of any of those
licences, permits, consents or authorities and the Company is not
restricted by contract from carrying on any activity in any part of
the world.
12.2 Financial Services ▇▇▇ ▇▇▇▇
The Company does not carry on, nor does it purport to carry on, nor
has it at any time since 28th April, 1988 carried on, or purported to
carry on, investment business in the United Kingdom within the
meaning of section 3, Financial Services ▇▇▇ ▇▇▇▇ nor so far as the
Warrantors are aware has it contravened any provision of such Act.
66
12.3 Data Protection ▇▇▇ ▇▇▇▇
12.3.1 The Company has registered or applied to register itself under the
Data Protection ▇▇▇ ▇▇▇▇ in respect of all registrable personal data
held by it, and all due and requisite fees in respect of such
registrations have been paid.
12.3.2 The details contained in such registrations or applications are
proper and suitable for the purpose(s) for which the Company holds or
uses the personal data which are the subject of them, and the
contents of all such registrations or applications have been made
available to the Purchaser.
12.3.3 So far as the Warrantors are aware all personal data held by the
Company has been held in accordance with the data protection
principles contained in the Data Protection Act 1998 and so far as
the Warrantors are aware there has been no unauthorised disclosure of
such personal data.
12.3.4 There are no outstanding enforcement, deregistration or transfer
prohibition notices or any other nature of notice under the Data
Protection ▇▇▇ ▇▇▇▇ currently outstanding against the Company, nor is
there any outstanding appeal against such notices. The Warrantors are
not aware of any circumstances which may give rise to the giving of
any such notices to the Company.
12.3.5 So far as the Warrantors are aware there are no unsatisfied requests
to the Company made by data subjects in respect of personal data held
by the Company, nor any outstanding applications for rectification or
erasure of personal data.
12.3.6 So far as the Warrantors are aware there are no outstanding claims
for compensation for inaccuracy, loss or unauthorised disclosure of
personal data.
13. Trading
13.1 Tenders, etc.
No offer, tender or the like is outstanding (the value of which to
the Company could exceed (pound)100,000 in any year) which is capable
of being converted into an obligation of the Company by an acceptance
or other act of some other person.
13.2 Delegation of powers
There are in force no powers of attorney given by the Company other
than to the holder of an encumbrance solely to facilitate its
enforcement nor any other authority (express, implied or ostensible)
given by the Company to any person to enter into any contract or
commitment or do anything on its behalf other than any authority of
employees to enter into routine trading contracts in the normal
course of their duties.
67
13.3 Consequence of acquisition of Shares by Purchaser
The acquisition of the Shares by the Purchaser or compliance with the
terms of this Agreement will not:
13.3.1 so far as the Warrantors are aware (without having made any enquiry
in this regard) cause the Company to lose the benefit of any right or
privilege it presently enjoys or cause any person who normally does
business with the Company not to continue to do so on the same basis
as previously;
13.3.2 legally entitle any person to determine any contractual obligation to
the Company or any right or benefit enjoyed by the Company or to
exercise any right under an agreement with the Company;
13.3.3 conflict in any material respects with or result in the breach of or
constitute a default under any of the terms, conditions or provisions
of any agreement or instrument to which the Company is now a party or
any loan to or mortgage created by the Company or of its memorandum
or articles of association;
13.3.4 result in any present indebtedness of the Company becoming due and
payable or capable of being declared due and payable prior to its
stated maturity;
13.3.5 so far as the Warrantors are aware (without having made any enquiry
in this regard) cause any director, officer or senior employee of the
Company to leave his employment with the Company.
13.4 Fair trading, etc.
So far as the Warrantors are aware the Company is not and has not
been party to or directly or indirectly concerned in any agreement,
arrangement, understanding or practice (whether or not legally
binding) or in the pursuit of any course of conduct which is:
13.4.1 registrable under or notifiable under the Competition ▇▇▇ ▇▇▇▇ or
capable of giving rise to an investigation by the Director General of
Fair Trading or a reference to the Monopolies and Mergers Commission;
13.4.2 in contravention or breach of the EC Treaty, the Fair Trading ▇▇▇
▇▇▇▇, the Consumer Credit ▇▇▇ ▇▇▇▇, the Resale Prices ▇▇▇ ▇▇▇▇, the
Trade Descriptions ▇▇▇ ▇▇▇▇, the Restrictive Trade Practices ▇▇▇
▇▇▇▇, the Competition ▇▇▇ ▇▇▇▇, the Consumer Protection ▇▇▇ ▇▇▇▇, the
Competition ▇▇▇ ▇▇▇▇ or any regulations, orders, notices or
directions made thereunder; or
13.4.3 is otherwise so far as the Warrantors are aware registrable,
unenforceable or void or renders the Company or any of its officers
liable to administrative, civil or criminal proceedings under any
anti-trust, trade regulation or similar legislation in any
jurisdiction where the Company carries on business.
13.5 Restrictions on trading
68
The Company is not and so far as the Warrantors are aware has not
been a party to any agreement, arrangement, understanding or practice
restricting the freedom of the Company to provide and take goods and
services by such means and from and to such persons and into or from
such place as it may from time to time think fit.
13.6 Possession of records
13.6.1 All material agreements to which the Company is a party to and which
are listed in the Disclosure Letter are in the possession of the
Company or unconditionally held to its order.
13.6.2 The Company does not have any of its records, systems, controls, data
or information recorded, stored, maintained, operated or otherwise
wholly or partly dependent on or held by any means (including any
electronic, mechanical or photographic process whether computerised
or not) which (including all means of access thereto and therefrom)
are not under the exclusive ownership and direct control of the
Company.
13.7 Business names
The Company does not use on its letterhead, books or vehicles or
otherwise carry on the Business under any name other than its
corporate name.
13.8 Unlawful acts
Neither the Company nor any officer has been prosecuted for any
criminal, illegal or unlawful act connected with the Company (other
than road traffic offences not punishable by a custodial sentence).
13.9 Sensitive payments
No officer or employee of the Company has made any Sensitive Payment
in connection with any contract or otherwise. For the purposes of
this clause the expression "Sensitive Payment" (whether or not
illegal) shall include (i) commercial bribes, bribes or kickbacks
paid to any person, firm or company including central or local
government officials or employees or (ii) payments or commitments
(whether made in the form of commissions, payments or fees for goods
received or otherwise) made with the understanding or under
circumstances that would indicate that all or part thereof is to be
paid by the recipient to central or local government officials or as
a commercial bribe influence payment or kickback.
14. Contracts
14.1 Onerous contracts
There are no long term contracts (that is, contracts not terminable
by the Company without penalty on six months' notice or less) or
onerous or unusual or abnormal contracts (that is, contracts for
capital commitments or contracts differing from those necessitated by
69
the ordinary course of business) binding upon the Company.
14.2 Material contracts
All contracts to which the Company is a party with a value in excess
of (pound)25,000 have been disclosed and the Company is not a party
to or subject to any agreement, transaction, obligation, commitment,
understanding, arrangement or liability which:
14.2.1 is known by any of the Warrantors or by the Company to be likely to
result in a loss to the Company on completion of performance;
14.2.2 cannot readily be fulfilled or performed by the Company on time and
without undue or unusual expenditure of money and effort;
14.2.3 involves or is likely to involve obligations, restrictions,
expenditure or receipts of an unusual, onerous or exceptional nature
and not in the ordinary course of business;
14.2.4 involves or is likely to involve the supply of services by or to the
Company the aggregate sales value of which will represent in excess
of ten % of the turnover of the Company for the year ended on the
Balance Sheet Date;
14.2.5 requires the Company to pay any commission, finder's fee, royalty or
the like; or
14.2.6 is in any way otherwise than in the ordinary and proper course of the
Company's business.
14.3 Performance of contracts
14.3.1 The terms of all contracts of the Company have been complied with in
all material respects by the Company and so far as the Warrantors are
aware by the other parties to the contracts in all material respects
and so far as the Warrantors are aware there are no circumstances
likely to give rise to a default by the Company or by the other
parties under any such contract.
14.3.2 The Warrantors have no knowledge of the invalidity of or grounds for
rescission, avoidance or repudiation of any agreement or other
transaction to which the Company is a party and have received no
notice of any intention to terminate, repudiate or disclaim any such
agreement or other transaction.
14.4 Agency and distribution agreements
The Company is not a party to any subsisting agency or
distributorship agreement.
15. Employees
15.1 Particulars of employees
The particulars shown in the schedule of employees comprised in the
Disclosure Documents are accurate in all material respects and show
in respect of each Director, officer and employee of the Company his
70
date of birth, the date on which he commenced continuous employment
with the Company for the purposes of ERA and all remuneration payable
and other benefits provided or which the Company is bound to provide
(whether now or in the future) to each such person and include full
particulars of all remuneration arrangements (particularly profit
sharing, incentive and bonus arrangements to which the Company is a
party whether binding or not) and each Director, officer and employee
of the Company is listed therein.
15.2 Service contracts
There is no contract of service in force between the Company and any
of its Directors, officers or employees which is not terminable by
the Company without compensation (other than any compensation payable
under Parts X and XI, ERA) on one month's notice given at any time or
otherwise in accordance with section 86, ERA except as disclosed.
There are no consultancy or management services agreements in
existence between the Company and any other person, firm or company,
and there are no agreements or other arrangements (binding or
otherwise) between the Company or any employers' or trade association
of which the Company is a member and any Trade Union. There are no
outstanding pay negotiations with any employees or Trade Unions.
15.3 Benefits
There are no amounts owing to present or former directors, officers
or employees of the Company other than not more than one month's
arrears of remuneration accrued or due or for reimbursement of
business expenses incurred within a period of three months preceding
the date of this Agreement and no moneys or benefits other than in
respect of remuneration or emoluments of employment are payable to or
for the benefit of any present or former director, officer or
employee of the Company, nor any dependant of any present or former
director, officer or employee of the Company.
15.4 Liabilities and payments
Save to the extent (if any) to which provision or allowance has been
made in the Accounts:
15.4.1 so far as the Warrantors are aware no liability has been incurred by
the Company for breach of any contract of employment or for services
or for severance payments or for redundancy payments or protective
awards or for compensation for unfair dismissal or for failure to
comply with any order for the reinstatement or re-engagement of any
employee or for sex or race discrimination or for any other liability
71
accruing from the termination or variation of any contract of
employment or for services;
15.4.2 no payment has been made or promised by the Company in connection
with the actual or proposed termination, suspension or variation of
any contract of employment or for services of any present or former
director, officer or any dependant of any present or former director,
officer or employee of the Company other than in accordance with the
terms of the relevant contracts of employment.
15.5 Relevant legislation
15.5.1 So far as the Warrantors are aware the Company has in relation to
each of its employees (and so far as relevant to each of its former
employees) complied in all material respects with all obligations
imposed on it by all relevant statutes, regulations and codes of
conduct and practice affecting its employment of any persons and all
relevant orders and awards made thereunder and has maintained current
and adequate records regarding the service, terms and conditions of
employment of each of its employees.
15.5.2 The Company has not been served with any improvement and/or
prohibition notices pursuant to sections 21 and 22, Health and Safety
at Work etc. ▇▇▇ ▇▇▇▇ which are still outstanding.
15.5.3 The Company is not being prosecuted under any of such Acts:
section 21, Children and Young Persons ▇▇▇ ▇▇▇▇
sections 14, 59, 71 and 72, Shops ▇▇▇ ▇▇▇▇
section 155, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
section 33, Health and Safety at Work etc. ▇▇▇ ▇▇▇▇.
15.5.4 Within a period of one year preceding the date of this Agreement, the
Company has not given notice of any redundancies to the Secretary of
State or started consultations with any independent trade union under
the provisions of Part IV, TULRCA or under TUPE.
15.6 Termination of employment
15.6.1 No present director, officer or employee of the Company has given or
received notice terminating his employment except as expressly
contemplated under this Agreement.
15.6.2 There have been no recommendations made to the Company by the
Advisory Conciliation and Arbitration Service or awards or
declarations made by the Central Arbitration Committee in respect of
its employees.
15.7 Share and other schemes
The Company does not have in existence nor is it proposing to
introduce, and none of its directors, officers or employees
participate in (whether or not established by the Company) any
employee share trust, share incentive scheme, share option scheme or
profit sharing scheme for the benefit of all or any of its present or
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former directors, officers or employees or the dependants of any of
such persons or any scheme whereunder any present or former director,
officer or employee of the Company is entitled to a commission or
remuneration of any other sort calculated by reference to the whole
or part of the turnover, profits or sales of the Company or any other
person, firm or company including any profit-related pay scheme
established under Chapter III, Part V, ICTA 1988.
15.8 Disputes and claims
15.8.1 So far as the Warrantors are aware no dispute exists between the
Company and a material number or category of its employees or any
Trade Union(s) and so far as the Warrantors are aware there are no
wage or other claims outstanding against the Company by any person
who is now or has been a director, officer or employee of the
Company.
15.8.2 The Company has not had during the last three years any strike, work
stoppages, slowdown or work-to-rule by its employees or lock-out,
nor, so far as the Warrantors are aware, is any anticipated, which
has caused, or is likely to cause, the Company to be materially
incapable of carrying on its business in the normal and ordinary
course.
15.9 Transfer of undertakings
The Company has not been a party to any relevant transfer as defined
in TUPE within the period of one year preceding the date of this
Agreement.
16. Pension Schemes
16.1 General
There are no pension schemes relating to the Company or in respect of
which the Company has any outstanding obligation or liability.
17. Intellectual Property
17.1 Ownership and rights
17.1.1 The Intellectual Property Rights used or acquired by the Company for
the purpose of its business are (where applicable) registered in the
name of the Company and are each in the sole and exclusive legal and
beneficial ownership of the Company; in particular, the Company has
not entered into any contract relating to the licensing or use (by it
or any other person) of any Intellectual Property Rights.
17.1.2 So far as the Warrantors are aware (without having made enquiry) the
processes employed and the products and services dealt in by the
Company do not use, embody or infringe any Intellectual Property
Rights vested in any other party or in which any other party has any
interest (whether under licence or otherwise) and do not give rise
73
(contingently or otherwise) to payment by the Company of any royalty
or of any sum in the nature of a royalty or to liability to pay
compensation under Sections 40 and 41 Patents ▇▇▇ ▇▇▇▇ or otherwise.
17.2 Infringement
17.2.1 The Company has not received any notice, and the Warrantors are not
aware, that any person is infringing any of the Company's
Intellectual Property Rights.
17.2.2 So far as the Warrantors are aware the Company is not passing off any
part of its business as and for the business of any other person and,
so far as the Warrantors are aware, no person is passing off its
business as and for any part of the Company's business.
18. Computer Systems
18.1 Identification and ownership
18.1.1 The computer systems and software used by the Company have been
properly maintained and serviced, have not been susceptible to
significant breakdown, malfunction or failure and have at all
material times functioned in a manner which is reasonably regarded by
the Warrantors as satisfactory for the running of the Business.
18.1.2 The Company has in place adequate back up arrangements to ensure
continuance of its business without loss of customers, permanent loss
of data and without material additional expense which is not
recoverable under insurance, in the event of computer software
breakdown, malfunction or in the event of power failure.
18.1.3 So far as the Warrantors are aware all licences which the Company
requires for the computer software used by the Company in connection
with the Business have been granted to the Company and are valid and
subsisting.
19. Legislation
So far as the Warrantors are aware the Company is not in material
breach of and has not received notice of and is not aware of any
allegation of material breach of the requirements of any legislation
which is relevant to the Business.
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PART 2
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Taxation Warranties
20. Taxation
20.1 General
20.1.1 Notices and returns
All notices, returns, computations and registrations of the Company
for the purposes of Taxation have been made punctually on a proper
basis and are correct and none of them is, or so far as the
Warrantors are aware is likely to be, the subject of any dispute with
any Taxation Authority.
20.1.2 All information supplied by the Company to any Taxation Authority was
when supplied and remains complete and accurate in all material
respects.
20.1.3 Payment of Tax due
All Taxation which the Company is liable to pay and the due date for
payment of which is prior to Completion has been paid prior to
Completion.
20.1.4 Penalties or interest on Tax
The Company has not within the period of six years ending on the date
of this Agreement paid or become liable to pay any penalty, fine,
surcharge or interest charged by virtue of the provisions of the TMA
or any other Taxation Statute.
20.1.5 Compliance with PAYE, national insurance contribution and Tax
collection obligations
(a) All income tax deductible and payable under the PAYE system in
the last six years has, so far as is required to be deducted,
been deducted from all payments made or treated as made by the
Company and all amounts due to be paid to the Inland Revenue
prior to the date of this Agreement have been so paid,
including all Tax chargeable on benefits provided for
directors, employees or former employees of the Company or any
persons required to be treated as such.
(b) All deductions and payments required to be made in the last
six years under any Taxation Statute in respect of national
insurance and social security contributions (including
employer's contributions) have been so made.
(c) All payments by the Company in the last six years to any
person which ought to have been made under deduction of Tax
have been so made and the Company (if required by law to do
so) has accounted to the Inland Revenue for the Tax so
deducted.
(d) Proper records have been maintained in respect of all such
deductions and payments and all applicable regulations have
been complied with.
75
(e) The Disclosure Documents contain details so far as they affect
the Company of all current dispensations agreed with the
Inland Revenue in relation to PAYE and all notifications given
by the Inland Revenue under section 166, ICTA 1988.
20.1.6 Investigations
The Company has not been subject to any visit, audit, investigation,
discovery or access order by any Taxation Authority (other than
routine PAYE and VAT visits and audits with no adjustments in the
amount of Tax payable arising therefrom) and so far as the Warrantors
are aware there are no circumstances existing in the last six years
which make it likely that a visit, audit, investigation, discovery or
access order will be made.
20.1.7 Residence
The Company is and always has been resident for Taxation purposes
only in the jurisdiction in which it is incorporated.
20.1.8 Tax provision
Full provision or reserve has been made in the Accounts for all
Taxation assessed or liable to be assessed on the Company or for
which it is accountable in respect of income, profits or gains
earned, accrued or received or deemed to be earned, accrued or
received on or before the Balance Sheet Date, including distributions
made down to such date or provided for in the Accounts and proper
provision has been made in the Accounts for deferred Taxation in
accordance with generally accepted accounting principles.
20.1.9 Concessions and arrangements
The amount of Taxation chargeable on the Company during any
accounting period ending on or within the six years before the
Balance Sheet Date has not depended on any concessions, agreements or
other formal or informal arrangements with any Taxation Authority.
20.1.10 Anti-avoidance provisions
The Company has not entered into or been a party to any scheme or
arrangement of which the main purpose, or one of the main purposes,
was the avoidance of a liability to Taxation.
20.1.11 Section 765, ICTA 1988
The Company has not without the prior consent of the Treasury carried
out or agreed to carry out any transaction under section 765, ICTA
1988 which would be unlawful in the absence of such consent and has,
where relevant, complied with the requirements of section 765A(2),
ICTA 1988 (supply of information on movement of capital within the
EU) and any regulations made or notice given thereunder.
20.1.12 Transactions requiring clearance or consent
76
All applications for clearance or consent by the Company or on its
behalf or affecting the Company in the last six years have been made
and obtained on the basis of full and accurate disclosure to the
relevant Taxation Authority of all relevant material facts and
considerations; and any transaction for which clearance or consent
was obtained has been carried into effect only in accordance with the
terms of the relevant clearance or consent.
20.1.13 Calculation of Taxation liability
The Company has sufficient records relating to past events to permit
accurate calculation of the Taxation liability or relief which would
arise upon a disposal or realisation on completion of each asset
owned by the Company at the Balance Sheet Date or acquired by the
Company since that date but before Completion.
20.1.14 Claims and disclaimers
The Company has duly submitted all claims and disclaimers the making
of which has been assumed for the purposes of the Accounts.
20.1.15 Outstanding claims, elections and appeals
The Disclosure Documents contain particulars of all matters relating
to Taxation in respect of which the Company is entitled:
(a) to appeal against any outstanding assessment or determination
relating to Taxation;
(b) to apply for a postponement of Taxation.
20.2 Corporation tax, including corporation tax on chargeable gains
20.2.1 Base values and acquisition costs
If each of the capital assets of the Company was disposed of on the
date hereof for a consideration equal to the book value of that asset
in, or adopted for the purposes of, the Accounts or, in the case of
assets acquired since the Balance Sheet Date, equal to the
consideration given upon its acquisition, no liability to corporation
tax on chargeable gains or balancing charges under the CAA would
arise and for the purpose of determining the liability to corporation
tax on chargeable gains there shall be disregarded any relief and
allowances available to the Company other than amounts falling to be
deducted under section 38, TCGA.
20.2.2 Capital allowances
All expenditure which the Company has incurred in the last six years
or may incur under any subsisting commitment on the provision of
machinery, plant or buildings has qualified or so far as the
Warrantors are aware will qualify (if not deductible as a trading
expense for trade carried on by the Company) for writing-down
allowances or industrial building allowances (as the case may be)
under CAA and where appropriate notices have been given to the Inland
Revenue under section 118, FA 1994.
77
20.2.3 Leased assets
The Company has not made any claim for capital allowances in respect
of any asset which is leased to or hired to the Company and no
election affecting the Company has been made or agreed to be under
sections 53 or 55, CAA in respect of such assets.
20.2.4 Finance leases
The Company is not a lessee under a lease to which the provisions of
Schedule 12 to the FA 1997 apply or could apply.
20.2.5 Short life assets
The Company has not made any election under section 37, CAA nor is it
taken to have made such an election under section 37(8)(c), CAA.
20.2.6 Long life assets
The Company does not own and has not owned a long life asset (within
the meaning of section 38A, CAA) in respect of which any claim for
capital allowances would be subject to the provisions of section
38E-38G, CAA.
20.2.7 Distributions
(a) No distribution within the meaning of sections 209, 210 and
211, ICTA 1988 has been made (or will be deemed to have been
made) by the Company since the Balance Sheet Date and the
Company is not bound to make any such distribution.
(b) No elections have been made pursuant to section 246A, ICTA
1988 in respect of any dividends nor has the Company made a
distribution to which the provisions of paragraph 2 of
Schedule 7, FA 1997 have been, or could be, applied.
(c) The Company has not received a dividend in respect of which
the payer has made an election under section 246A, ICTA 1988
nor a distribution to which the provisions of paragraph 2 of
Schedule 7, FA 1997 have been, or could be, applied.
20.2.8 Repayments of share capital
The Company has not any time within the last six years repaid,
redeemed or repurchased or agreed to repay, redeem or repurchase or
granted an option under which it may become liable to purchase any
shares of any class of its issued share capital nor has the Company
after that date capitalised or agreed to capitalise in the form of
shares or debentures any profits or reserves of any class or
description or otherwise issued or agreed to issue any share capital
other than for the receipt of new consideration (within the meaning
of Part VI, ICTA 1988) or passed or agreed to pass any resolution to
do so.
20.2.9 Demergers
78
The Company has not been engaged in nor been a party to any of the
transactions set out in sections 213 to 218 inclusive, ICTA 1988 nor
has it made or received a chargeable payment as defined in section
218(1), ICTA 1988.
20.2.10 Issues of securities
No securities (within the meaning of section 254(1), ICTA 1988)
issued by the Company and remaining in issue at the date of this
Agreement were issued in such circumstances that the interest payable
thereon falls to be treated as a distribution under either sections
209(2)(d), 209(2)(da) or 209(2)(e), ICTA 1988, nor has the Company
agreed to issue such securities in such circumstances.
20.2.11 Capital distributions
The Company has not received any capital distribution to which the
provisions of section 189, TCGA could apply.
20.2.12 Land sold and leased back
The Company has not entered into any transaction to which the
provisions of section 779 or 780, ICTA 1988 have been or could be
applied.
20.2.13 Foreign loan interest
The Company has not within the last six years received any foreign
loan interest in respect of which double taxation relief will or may
be restricted under section 798, ICTA 1988.
20.2.14 Non-deductible payments
No rents, interest, annual payments or other sums of an income nature
paid by the Company since the Balance Sheet Date are or may be wholly
or partially disallowable as deductions, management expenses or
charges in computing profits for the purposes of corporation tax by
reason of the provisions of sections 74, 79, 125, 338, 339, 779 to
784 inclusive, 787 or 788, ICTA 1988 or any other statutory provision
or otherwise.
20.2.15 Rent payable to connected persons
No rent is or has been payable by the Company within the last six
years to which the provisions of sections 33A and 33B, ICTA 1988
could have applied prior to their ceasing to have effect.
20.2.16 No unremittable income or gains
No claim has been made by the Company within the last six years under
sections 584, 585 or 723 ICTA 1988 or under section 279, TCGA.
20.2.17 Payments to directors, officers or employees
The Company has not made within the last six years or agreed to make
any payment to or provided or agreed to provide any benefit for any
Director or former director, officer or employee of the Company,
whether as compensation for loss of office, termination of employment
79
or otherwise, which is not allowable as a deduction in calculating
the profits of the Company for Taxation purposes whether up to or
after the Balance Sheet Date.
20.2.18 Transfer pricing
The Company is not a party to any transaction or arrangement under
which it may be required to pay for any asset or any services or
facilities of any kind an amount which is in excess of the market
value of that asset or those services or facilities, neither is or
was the Company a party to any transaction or arrangements to which
the provisions of section 770A and Schedule 28 AA, ICTA 1988 may
apply and nor will the Company receive any payment for an asset or
any services or facilities of any kind that it has supplied or
provided or is liable to supply or provide which is less than the
market value of that asset or those services or facilities.
20.2.19 Transactions not at arm's length
The Company has not disposed of or acquired any asset in
circumstances falling within section 17 or 19, TCGA nor given or
agreed to give any consideration to which section 128(1)(2), TCGA
could apply.
20.2.20 Transactions between connected persons
No allowable loss has accrued to the Company to which section 18(3),
TCGA will apply.
20.2.21 Chargeable debts
The Company is not owed a debt, other than a debt on a security, on
the disposal or satisfaction of which a liability to corporation tax
on chargeable gains will arise by reason of section 251, TCGA.
20.2.22 Relief for loans to traders and qualifying corporate bonds
No claim for relief has been allowed to the Company in the last six
years pursuant to sections 253 and 254, TCGA in respect of any loan
and no chargeable gain has or is likely to arise pursuant to section
253 (5), (6), (7) or (8) or section 254 (9) or (10), TCGA.
20.2.23 Chargeable policies
The Company has not acquired benefits under any policy of assurance
otherwise than as the original holder of legal and beneficial title.
20.2.24 Postponement of gains relating to overseas trade
No claim or election affecting the Company has been made (or assumed
to be made) under sections 140, 140C or 187 TCGA.
20.2.25 Depreciatory transactions
(a) Since the Balance Sheet Date no allowable loss which might
accrue on the disposal by the Company of any share in or
80
security of any company is likely to be reduced by virtue of
the provisions of sections 176 and 177, TCGA.
(b) Since the Balance Sheet Date the Company has not been a party
to any scheme or arrangement whereby the value of an asset has
been materially reduced as set out in sections 30-34, TCGA.
20.2.26 Restriction of straightline growth
No asset owned by the Company is subject to a deemed disposal and
re-acquisition under Schedule 2, TCGA so as to restrict the extent to
which the gain or loss over the period of ownership may be
apportioned by reference to straightline growth.
20.2.27 Other claims made by the Company
The Company has made no claim under any of the following:
(a) section 280, TCGA (tax on chargeable gains payable by
instalments);
(b) section 24(2), TCGA (assets of negligible value);
(c) section 242(2), TCGA (small part disposals of land); or
(d) section 139, FA 1993 (deferral of unrealised exchange gains).
20.2.28 Gifts
The Company has not received any assets by way of gift as mentioned
in section 282, TCGA and the Company has not held, and does not hold,
shares in a company to which section 125, TCGA could apply.
20.2.29 Non-resident companies
(a) There has not accrued or arisen any income, profit or gain in
respect of which the Company may be liable to corporation tax
by virtue of the provisions of section 13, TCGA or Chapter IV
of Part XVII, ICTA 1988.
(b) The Company has not been served with a notice in respect of
the unpaid corporation tax liability of any company pursuant
to section 191, TCGA.
20.2.30 Controlled foreign companies
No notice of the making of a direction under section 747, ICTA 1988
has been received by the Company and no circumstances exist which
would entitle the Inland Revenue to make such a direction or to
apportion any profits of a controlled foreign company to the Company
pursuant to section 752, ICTA 1988.
20.2.31 Agent for non-residents
The Company has not been a party to any transaction or arrangement
whereby it is or may hereafter become liable for Taxation under or by
virtue of section 42A, ICTA 1988 or regulations made thereunder or
section 126, FA 1995.
20.2.32 Payment from pension funds
81
The Company has not received a payment out of funds held for the
purposes of an exempt approved scheme in respect of which an amount
is currently recoverable by the Inland Revenue under section 601,
ICTA 1988.
20.2.33 Claims and elections
(a) The Disclosure Documents contain full particulars of all
claims and elections made (or assumed to be made) under
sections 23, 152-162 or ▇▇▇, ▇▇▇, ▇▇▇, ▇▇▇, ▇▇▇▇ insofar as
they could affect the chargeable gain or allowable loss which
would arise in the event of a disposal by the Company of any
of its assets, and indicates which assets (if any) so affected
would not on a disposal give rise to relief under Schedule 4,
TCGA.
(b) The Disclosure Documents contain full particulars of elections
made under
(i) Regulation 10 of The Exchange Gains and Losses
(Alternative Method of Calculating of Gain or Loss)
Regulations 1994 and whether or not such elections
have been varied
(ii) Regulation 3 or 4 of The Local Currency Elections
Regulations 1994 and such election is still valid.
20.2.34 Loan relationships
(a) All interest, discounts and premiums payable by the Company in
respect of its loan relationships (within the meaning of
section 81, FA 1996) are eligible to be brought into account
by the Company as a debit for the purposes of Chapter II of
Part IV, FA 1996 at the time and to the extent that such
debits are recognised in the statutory accounts of the
Company.
(b) The Disclosure Documents contain full particulars of any
debtor relationship (within the meaning of section 103, FA
1996) of the Company which relates to a relevant discounted
security (within the meaning of paragraph 3 of Schedule 13, FA
1996) to which paragraph 17 or 18 of Schedule 9, FA 1996
applies.
(c) The Company has not been a party to a loan relationship which
had an unallowable purpose (within the meaning of paragraph 13
of Schedule 9, FA 1996).
(d) The Disclosure Documents contain full particulars of:
(i) any loan relationships to which the Company is a
party to which paragraph 8 of Schedule 15, FA 1996
has applied or will apply on the occurrence of a
relevant event (within the meaning of paragraph 8(2)
of Schedule 15, FA 1996);
(ii) the amount of any deemed chargeable gain or
82
deemed allowable loss that has arisen or will arise
on the occurrence of such relevant event; and
(iii) any election made pursuant to paragraph 9 of
Schedule 15, FA 1996.
(e) The Company has not entered into any transaction to which
paragraph 11 of Schedule 9, FA 1996 applies.
20.3 Corporation tax - groups of companies
20.3.1 There is set out in the Disclosure Bundle full details of all
surrenders, claims and notices and agreements to surrenders, claims
or the giving of notices for:-
(a) any amounts by way of group relief under the provisions of
Sections 402 to 413 ICTA 1988;
(b) any amounts of advance corporation tax under the
provisions of Section 240 ICTA 1988; and
(c) any amounts of the tax refund to be dealt with under the
provisions of Section 102 FA 1989;
in each case where the claim or surrender or notice has yet to be
agreed or determined by the Inland Revenue for a specific amount.
20.3.2 Acquisitions from group members
No tax has been or may be assessed on the Company pursuant to section
190, TCGA in respect of any chargeable gain accrued prior to the date
of this Agreement and the Company has not at any time within the
period of six years ending with the date of this Agreement
transferred any asset other than trading stock including any transfer
by way of share exchange within section 135, TCGA to any company
which at the time of disposal was a member of the same group as
defined in section 170, TCGA.
20.3.3 Leaving the group
The execution or completion of this Agreement or any other event
since the Balance Sheet Date will not result in any chargeable asset
being deemed to have been disposed of and re-acquired by the Company
for Taxation purposes pursuant to section 178 or 179, TCGA.
20.3.4 Group income
The Disclosure Documents contain full particulars of all elections
made by the Company under section 247, ICTA 1988 and all such
elections are now in force.
20.3.5 Capital losses
The Company has no capital losses the set-off of which are or may be
restricted by section 177A and Schedule 7A, TCGA.
83
20.4 Close companies
20.4.1 Close investment-holding company status
The Company has not in any accounting period beginning after 31st
March, 1989 been a close investment-holding company as defined in
section 13A, ICTA 1988.
20.4.2 Distributions
No distribution within section 418, ICTA 1988 has been made by the
Company since the Balance Sheet Date.
20.4.3 Loans to participators
No loans or advances made or agreed to be made by the Company within
sections 419 and 420 or 422, ICTA 1988 are outstanding at the date of
this Agreement and the Company has not released or written off or
agreed to release or write off the whole or any part of any such
loans or advances since the Balance Sheet Date.
20.5 Inheritance tax
20.5.1 No transfers of value and associated operations
The Company has made no transfers of value within sections 94 and
202, ITA nor has the Company received a transfer of value such that
liability might arise under section 199, ITA nor has the Company been
party to associated operations in relation to a transfer of value as
defined by section 268, ITA.
20.5.2 Inland Revenue charge
There is no unsatisfied liability to inheritance tax attached to or
attributable to the Shares or any asset of the Company and none of
them are subject to an Inland Revenue charge as mentioned in section
237 and 238, ITA.
20.5.3 Power of sale, mortgage or charge
No asset owned by the Company nor the Shares are liable to be subject
to any sale, mortgage or charge by virtue of section 212, ITA.
20.6 VAT
20.6.1 Returns and payments
(a) The Company is a taxable person duly registered for the
purposes of VAT.
(b) The Company has complied with all statutory provisions, rules,
regulations, orders and directions in respect of VAT, has
promptly submitted accurate returns, and the Company maintains
full and accurate VAT records, has never been subject to any
interest, forfeiture, surcharge or penalty nor been given any
notice under sections 59 or 64, VATA nor been given a warning
within section 76(2), VATA nor has the Company been required
to give security under paragraph 4 of Schedule 11, VATA.
84
(c) VAT has been duly paid or provision has been made in the
Accounts for all amounts of VAT for which the Company is
liable.
20.6.2 Taxable supplies and input tax credit
All supplies made by the Company are taxable supplies and the Company
will not be denied full credit for all input tax by reason of the
operation of sections 25 and 26, VATA and regulations made thereunder
and no VAT paid by the Company is not input tax as defined in section
24, VATA and regulations made thereunder.
20.6.3 VAT groups
The Company is not and has not been for VAT purposes a member of any
group of companies other than the Group and no act or transaction has
been effected in consequence whereof the Company is or may be held
liable for any VAT arising from supplies made by another company and
no direction has been given nor will be given by H M Customs & Excise
under Schedule 9A, VATA as a result of which the Company would be
treated for the purposes of VAT as a member of a group.
20.6.4 Transactions between connected persons
The Company has not been or agreed to be party to any transaction or
arrangement in relation to which a direction has been or could be
made under paragraph 1 of Schedule 6, VATA or to which paragraph
2(3A) of Schedule 10, VATA applied.
20.6.5 Charge to VAT as agent or representative
The Company is not and has not agreed to become liable for VAT by
virtue of sections 47 and 48, VATA.
20.6.6 VAT and Properties
The Company or its relevant associate for the purposes of paragraph
3(7) of Schedule 10, VATA has exercised the election to waive
exemption from ▇▇▇ (▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇)
only in respect of those Properties listed (as having been the
subject of such an election) in the Disclosure Documents and:
(a) neither the Company nor its relevant associate has any
intention or obligation to exercise such an election in
respect of any other of the Properties;
(b) all things necessary for the election to have effect have been
done and in particular any notification and information
required by paragraph 3(6) of Schedule 10, VATA has been given
and any permission required by paragraph 3(9) of Schedule 10,
VATA has been properly obtained;
(c) a copy of the notification and of any permission obtained from
H M Customs & Excise in connection with the election is
included in the Disclosure Documents;
85
(d) no election has or will be disapplied or rendered ineffective
by virtue of the application of the provisions of paragraph 2
(3AA) of Schedule 10, VATA;
(e) in no case has the Company charged VAT, whether on rents
or otherwise, which is not properly chargeable; and
(f) the Company has not agreed to refrain from making an
election in relation to any of the Properties.
20.6.7 Capital goods scheme
The Company does not own and has not at any time within the period of
ten years preceding the date hereof owned any assets which are
capital items subject to the Capital Goods Scheme under Part XV of
the VAT Regulations 1995.
20.6.8 Bad debt relief
The Company has not made any claim for bad debt relief under section
36, VATA and details of any claim it could make have been disclosed.
20.6.9 Self-billing
The Company has not entered into any self-billing arrangement in
respect of supplies made by any other person nor has it at any time
agreed to allow any such person to make out VAT invoices in respect
of supplies made by the Company.
20.7 Stamp duty
20.7.1 Stamp duty
All stampable documents wheresoever executed (other than those which
have ceased to have any legal effect) to which the Company is a party
have been duly stamped or stamped with a particular stamp denoting
that no stamp duty is chargeable. Since the Balance Sheet Date there
have been and are no circumstances or transactions to which the
Company is or has been a party such that a liability to stamp duty or
any penalty in respect of such duty will arise on the Company.
20.7.2 Stamp duty reserve tax
Since the Balance Sheet Date the Company has not incurred any
liability to or been accountable for any stamp duty reserve tax and
there has been no agreement within section 87(1), FA 1986 which could
lead to the Company incurring such a liability or becoming so
accountable.
86
PART 3
------
Marine
21.1 Vessels
21.1.1 Schedule 8 sets forth a list of all vessels owned, leased, chartered
or managed by the Company on the date hereof. Each Vessel is duly and
validly documented under the laws and flag of the Isle of Man and
Barbados and the Company is the sole owner of each Vessel and has
good title to each Vessel free and clear of all Encumbrances, except
for such maritime liens arising as a matter of law in the ordinary
course of business consistent with past practice and which are not
delinquent or are being contested in good faith but in no event do
such contested liens, individually or in the aggregate, exceed
(pound)10,000.
21.1.2 With respect to each Vessel, (a) such Vessel is in good operating
condition and repair, consistent with its age, and has been
maintained and serviced in accordance with the Company's normal
practices and in the normal course of business, and is in
satisfactory operating condition for charter in the manner and
services in which it normally engages, (b) such Vessel holds in full
force and effect all certificates, licenses, permits and rights
required for operation in the manner and services vessels of its kind
are being operated in the geographical area in which such Vessel is
presently being operated, (c) so far as the Warrantors are aware no
event has occurred and no condition exists that would materially or
adversely effect the condition of such Vessel, (d) such Vessel is in
class, free of any recommendations, with the classification and
rating for vessels of its kind and engaged in similar services, and
(e) there is no unrepaired damage known to the Warrantors to marine
equipment that could affect certification or class.
21.1.3 Since the Accounts Date the Company has continued to maintain the
inventory of spare parts (whether on board or ashore) for the Vessels
following the same policy and in the same usual and customary manner
in the 12 months prior to such date, including any renewal or
replacement of spare parts used in the repair of any Vessel.
21.1.4 Since the Accounts Date the Company has not except as required to
comply with the charterer's schedule details of which have been
Disclosed:-
(a) departed from any normal drydock and maintenance practices
or discontinued replacement or renewal of spares in operating
its fleet or any other assets;
(b) deferred any scheduled maintenance on any Vessel or other
assets [except as required to comply with the charterer's
schedule details of which have been Disclosed];
(c) entered into any charter for any Vessel which has a term
of longer than 6 months other than those Disclosed;
87
(d) authorised any of, or agreed or committed to do any of,
the foregoing actions; or
(e) failed to maintain or renew permits required for its
business and Vessels.
21.1.5 The Company has notified in writing the Purchaser of any Vessel that
has been drydocked since the Accounts Date and of any insurable or
non-insurable loss exceeding the sum of (pound)10,000 in respect of
any one incident occurring since the Accounts Date.
21.1.6 The Company has not received any notice of early termination under
any of its charters, which are in full force and effect, and so far
as the Vendor is aware (without having made any enquiries of the
customers in this respect) no customer of the Company intends to
terminate, limit or reduce its or their business relations with the
Company.
21.2 Insurance
21.2.1 There are included in the Disclosure Documents a list and
description, including limits of coverage and deductibles, of the
insurance policies that the Company currently maintains with respect
to its business, Vessels, properties and employees as of the date
hereof. Each of such policies maintained by the Company is in full
force and effect and a complete and correct copy of each or a summary
of their material terms has been delivered to the Purchaser. All
insurance premiums, club calls, back calls and assessments (if any)
currently due with respect to such policies maintained by the Company
have been paid and the Company is not otherwise in default with
respect to any such policy, nor has the Company failed to give any
notice or, present any claim under any such policy in a due and
timely manner. There are no outstanding unpaid claims under any such
policies other than any pending claims under the marine insurance
policies of the Company and the amount of such claims have been
recorded as a receivable and all of such claims are fully
collectible. The Company has not received notice of cancellation or
non-renewal of any such policy. Such policies maintained by the
Company are sufficient for compliance with all requirements of law
and all agreements to which the Company is a party.
21.2.2 All the Vessels are entered in the books of North of England P&I
Association Limited and for the last 6 years the Company has not been
a member of any other maritime mutual protection or indemnity club or
fund and all club calls and assessments notified to the Company have
been paid to date or have been properly provided for.
88
PART 4
The Demerger
22.1 All necessary consents and releases have been obtained in connection
with the Demerger.
22.2 No employee or former employee of the Company or of the Demerged
Companies has made any claim or given any intimation that he intends
to make a claim against the Company arising out of or in connection
with the Demerger.
89
SCHEDULE 5
==========
PART 1
BASIS FOR PREPARATION OF THE COMPLETION ACCOUNTS
1. General requirements
Subject to the provisions of paragraphs 2 to 4 hereof the Completion
Accounts shall be prepared:-
1.1 under the historical cost convention and in accordance with
accounting principles generally accepted in the United Kingdom
(including Accounting Standards) and, subject as aforesaid, on
a basis consistent with the Accounts;
1.2 after having given effect to the Demerger.
2. Balance Sheet
Unless already taken into account, the following principles shall be
observed in drawing up the balance sheet which is to form part of the
Completion Accounts:
2.1 sums receivable in respect of debtors shall not be included at sums
higher than the amounts collectable, making appropriate provision for
doubtful debts;
2.2 stocks and work-in-progress shall be valued at the lower of cost and
net realisable value;
2.3 liabilities shall include accruals at the close of business on the
date of Completion;
2.4 no value shall be attributable to goodwill or any other intangible
asset;
2.5 immovable property and other fixed assets shall be included at their
net book value as at the Balance Sheet Date (or at cost if purchased
after the Balance Sheet Date) less depreciation on cost or the
revalued amounts (as appropriate) at the respective rates applied in
the Accounts;
2.6 no provision shall be made for corporation tax or deferred tax (other
than the agreed provision of (pound)2,000,000 in respect of deferred
Taxation referred to in paragraph 1.4 of Part II of this Schedule).
3. Profit and loss account
Unless already taken into account, the following principles shall be
observed in drawing up the profit and loss account of the Group which
is to form part of the Completion Accounts:
90
3.1 depreciation shall be deducted on the basis mentioned in paragraph
2.5 above;
3.2 any Taxation on profits shall be computed as if the Completion
Accounts are an accounting period for Corporation Tax and be
deducted;
3.3 the profits or losses shall be computed before paying any dividend or
making appropriations of profit or allocations to or from reserves
and before deducting any extraordinary item or making any prior year
adjustment, as defined in FRS 3.
4. Changes in Accounting Standards
Unless otherwise taken into account in accordance with the preceding
provisions of this schedule, the Completion Accounts shall be
prepared without regard to any changes in Accounting Standards from
those applied in the preparation of the Accounts.
PART II
ADJUSTED NET ASSETS
1. The Adjusted Net Assets of the Group shall be the aggregate of all
its fixed tangible assets and current assets as shown in the
Completion Accounts less the aggregate of all its liabilities
(including amounts falling due to creditors not only within but also
outside of one year) and charges adjusted as follows to the extent
not already taken into account in the Completion Accounts:-
1.1 without taking into account any amounts owed by one member
of the Group to any other member of the Group;
1.2 by deducting all deferred docking costs other than in respect
of ▇▇ ▇▇▇▇▇▇▇▇ Aquarius after 1st April 2001;
1.3 without taking into account the value of any spares;
1.4 by including an agreed provision of (pound)2,000,000 in
respect of deferred taxation;
1.5 by increasing or reducing as the case may be the book
value as at Completion of the Vessels to the value set
opposite that Vessel in Schedule 8 and by increasing the book
value as at Completion of the vessel hulls by the amount set
opposite that vessel hull in Part II of Schedule 8;
1.6 if during the Pre-Completion Period any of the Vessels has
been lost or destroyed or damaged beyond repair, by excluding
the adjusted value of that Vessel determined under Section 1.5
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and including the amount in respect thereof recoverable from
the insurers;
1.7 if during the Pre-Completion Period any other fixed assets of
the Group has been lost or destroyed or damaged beyond repair,
by excluding the book value of that asset and including the
amount in respect thereof recoverable from the insurers;
1.8 if during the Pre-Completion Period any Vessel is agreed to be
sold but the sale has not been completed, by excluding the
value of that Vessel determined under Section 1.5 and
including the agreed sale price less the amount of any tax
chargeable on the disposal and if any part of the sale price
is not cash taking such part at its market value;
1.9 by deducting the retained profit for the period from 1st April
2001 until Completion (which for the avoidance of any doubt
shall be after giving effect to the Pre-Completion Dividends
set out in paragraphs 5 and 6 of Schedule 9 determined in
accordance with the provisions of the articles of association
of the Company) adjusted as follows:-
(a) by deducting the profit on disposal of m.v.
"STIRLING FYNE"; and
(b) by adding back the depreciation charge in respect
of vessels and vessels equipment other than m.v.
"▇▇▇▇▇▇▇▇ ▇▇▇▇▇" and m.v. "STIRLING FORTH", net of
the consolidation adjustment relating to supervision
fees/commission; and
(c) by deducting the profit before taxation for the
period from 1st April 2001 until Completion in
respect of m.v. "STIRLING FORTH" and m.v. "▇▇▇▇▇▇▇▇
▇▇▇▇▇", after depreciation, net of the consolidation
adjustment referred to above, and after actual
interest attributable to the financing of those
vessels;
(d) by adding back the pro rata element of the
Pre-Completion Dividends set out in paragraphs 5 and
6 of Schedule 9 declared for the period from 1st
April 2001 until Completion which relates to the
profit for such period attributable to m.v. "STIRLING
FORTH" and m.v. "▇▇▇▇▇▇▇▇ ▇▇▇▇▇" compared to the
consolidated profit before tax for the Group
excluding the profit on the disposal of the m.v.
"STIRLING FYNE".
(e) by adding back the dividend of (pound)19.3146 per
Deferred Share declared on 4th May 2001 to the extent
such dividend has reduced retained profit for the
period from 1st April 2001 until Completion;
(f) by adding back the agreed provision for deferred
taxation of (pound)2,000,000 to the extent such
provision for deferred taxation has reduced retained
profit for the period from 1st April 2001 until
Completion;
92
(g) by adding back any costs of docking in respect of ▇▇
▇▇▇▇▇▇▇▇ Aquarius to the extent such docking costs
have reduced retained profit for the period from 1st
April 2001 until Completion;
(h) by adding back the costs of the Demerger to the
extent such costs of the Demerger have reduced
retained profit for the period from 1st April 2001
until Completion;
(i) by adding back fees payable to non-executive
directors to the extent that such fees have reduced
retained profit for the period from 1st April 2001
until Completion;
1.10 the effect of the Demerger;
1.11 by deducting the costs of the Demerger incurred for the period
prior to 31st March 2001 and which did not reduce retained
profit for the period prior to 31st March 2001;
93
SCHEDULE 6
==========
COMPLETION
PART 1
On Completion, the Vendors other than 3i shall deliver or make
available to the Purchaser:
1. certificates from each of the banks at which the Company and each of
the Subsidiaries maintains an account of the amount standing to the
credit or debit of all such accounts as at the close of business on
30th April 2001;
2. the cash book balances of the Company and each of the Subsidiaries as
at Completion with statements reconciling such cash book balances and
the relevant cheque books with the balances on the bank accounts of
the Company and each of the Subsidiaries as shown by the certificates
referred to in paragraph 1;
3. the cheque books relating to all the bank accounts of the Company and
each of the Subsidiaries together with confirmation that no cheques
have been written by the Company or any of the Subsidiaries since
preparation of the statements referred to in paragraph 1.2;
4. the Tax Deed duly executed as a deed by the Vendors;
5. transfers of the Shares duly executed by the registered holders
thereof in favour of the Purchaser or its nominee(s) together with
the relevant share certificates in the names of such registered
holders or appropriate indemnities in the absence of such share
certificates;
6. such waivers, consents or other documents (including any power of
attorney under which any document required to be delivered under Part
1 of this schedule has been executed) in the agreed terms to enable
the Purchaser and its nominee(s) to be registered as the holders of
the Shares;
7. certificates in respect of all issued shares in the capital of each
of the Subsidiaries or appropriate indemnities in the absence of such
share certificates;
8. the statutory registers and minute books (properly written up to the
time immediately prior to Completion), the common seal (if any), the
certificate of incorporation and (if applicable) any certificate of
incorporation on change of name of the Company and each of the
Subsidiaries;
9. the documents of title to the Properties as evidenced by the
Disclosure Documents;
10. the written resignations in the agreed terms of ▇.▇. ▇▇▇▇▇▇ and ▇.▇.
▇▇▇▇▇▇▇▇ as Directors from their respective offices, such
resignations to take effect from Completion;
94
11. a letter amending the service agreement between J.A.F. Cowderoy and
SSCO duly countersigned by J.A.F. Cowderoy;
12. the Escrow Letter and Escrow Instructions;
13. the Shell Novation Agreement;
14. evidence to the reasonable satisfaction of the Purchaser of the
conversion of 83,248 A Ordinary Shares into 83,248 Deferred Shares
and the payment of a dividend of(pound)19.3146 per share thereon;
15. evidence to the reasonable satisfaction of the Purchaser of the
repayment or payment of any monies owing by any of the Demerged
Companies to any member of the Group;
16. the Management Agreement duly executed;
17. the Pooling Agreement duly executed;
18. the Performance Guarantee Agreement;
19. the Performance Guarantee Fee Agreement duly executed;
20. The Administrative Services Agreement duly executed.
21. The Indemnity Agreement duly executed.
PART 2
On Completion, the Vendors other than 3i shall cause a board meeting of the
Company and of each of the Subsidiaries to be held at which:
1. in the case of the Company only, the said transfers of the Shares
shall be passed for registration and registered (subject to the same
being duly stamped, which shall be at the cost of the Purchaser);
2. the resignations referred to in paragraph 10 of Part 1 shall be
tendered and accepted so as to take effect at the close of the
meeting;
3. persons nominated by the Purchaser (in the case of directors subject
to any maximum number imposed by the relevant articles of
association) shall be appointed additional directors and appointed
secretaries;
4. the variations to the service agreement between SSCO and JAF Cowderoy
shall be approved;
5. in the case of Haven Shipping Company Limited a transfer of 1 share
by I.V.R. ▇▇▇▇▇▇▇▇ and Stirling Shipping Company Limited to Stirling
Shipping Company Limited shall be passed for registration and
registered.
PART 3
On Completion, the Purchaser shall cause a board meeting of the Purchaser to be
held at which:-
95
1. the entering into of the Loan Notes Instrument and issue of the Loan
Notes (and certificates in respect thereof) to the Vendors shall be
approved;
2. the transaction contemplated by this Agreement be approved;
3. the signature, execution and completion (as appropriate) of this
Agreement and the Tax Deed and all ancillary documents hereto be
approved.
PART 4
On Completion, the Purchaser shall:-
1. deliver to the Vendors:-
1.1 the Tax Deed duly executed as a deed by the Purchaser;
1.2 a certified copy of the Loan Note Instrument duly executed and
certificates in respect of the Loan Notes ; and
1.3 a certified copy of a duly executed irrevocable letter of
instructions in agreed terms to the Purchaser's transfer agent,
Computershare Services Inc, to issue the relative share certificates
in respect of the Consideration Shares and to deliver them without
cost to, in the case of 3i:-
Sub Custodian: The Bank of New York, New York
DTC Number: 901
Agent Bank Number: 93034
Institutional ID Number: 66569
Account: Bank of New York, Brussels
Client Name: The Bank of New York Europe Limited
Client Account Number: 723175
Sub Account Name: 3i Group plc * 027173-002
and in the case of the other Vendors, to the Vendors' Solicitors;
1.5 a certified extract from a meeting of its board of directors
authorising the signature, execution and completion (as appropriate)
of this Agreement.
2. deliver to the Vendors' Solicitors on behalf of such of the Vendors
who are to be issued Loan Notes the Letter of Credit.
PART 5
Section 1
On Completion, each of the Vendors named in Section 1 of this Part 5 ("Affiliate
Vendors") shall deliver to the Purchaser a letter in the form set forth in
Section 2 of this Part 5 (the "Affiliate Letter").
96
1. Affiliate Vendors:
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
3i
2. Form of Affiliate Letter:
SEACOR SMIT Inc. May ___, 2001
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Dear Sir/Madam:
Reference is made to the provisions of that certain agreement by and between
SEACOR SMIT Inc., a Delaware corporation ("SEACOR") and the Vendors identified
therein relating to the sale and purchase of all of: the A Ordinary Shares (the
"A Shares") (pound)1 each in the capital of Stirling Shipping Holdings Limited
("Stirling"), the B Ordinary Shares (the "B Shares") (pound)1 each in the
capital of Stirling, the Ordinary Shares (the "Ordinary Shares") (pound)1 each
in the capital of Stirling and the Deferred Shares (pound)1 each in the Capital
of Stirling (together with the A Shares, the B Shares and the Ordinary Shares,
the "Stirling Shares") in the capital of Stirling, dated as of May ___, 2001
(together with any amendments thereto, the "Acquisition Agreement"), pursuant to
which the Consideration Shares (as defined below) will be issued as part of the
consideration paid for the acquisition of the Stirling Shares (the "Share
Exchange"). By reason of the Share Exchange, Stirling will become a wholly-owned
subsidiary of SEACOR. This letter constitutes the undertakings of the
undersigned contemplated by the Share Exchange Agreement, and is being furnished
pursuant to Part 5 of Schedule 6 thereto.
I understand that I may be deemed to be an "affiliate" of the Company, as such
term is defined for purposes of paragraphs (c) and (d) of Rule 145 ("Rule 145")
promulgated under the Securities Act of 1933, as amended (the "Securities Act").
Execution of this letter will not be construed as an admission of "affiliate"
status or as a waiver of any rights that I may have to object to any claim that
I am an "affiliate" on or after the date of this letter.
If in fact I were to be deemed an "affiliate" of Stirling under paragraphs (c)
and (d) of Rule 145, my ability to sell, transfer or otherwise dispose of any
shares of the common stock, par value $.01 per share, of SEACOR received by me
pursuant to the terms of the Acquisition Agreement (the "Consideration Shares")
in exchange for Stirling Shares owned by me would be restricted.
97
I hereby represent, warrant and covenant to SEACOR that:
I will not sell, pledge, transfer or otherwise dispose of any of the Stirling
Shares unless (i) such sale, pledge, transfer or other disposition has been
registered under the Securities Act, (ii) such sale, transfer or other
disposition is made in conformity with the provisions of Rule 145 under the
Securities Act (as such rule may be amended from time to time), or (iii) in the
opinion of counsel in form and substance reasonably satisfactory to Parent, or
under a "no-action" letter obtained by me from the staff of the SEC, such sale,
pledge, transfer or other disposition will not violate or is otherwise exempt
from registration under the Securities Act;
I hereby acknowledge that SEACOR is under no obligation to register the sale,
transfer, pledge or other disposition by me of the Stirling Shares or to take
any other action necessary for the purpose of making an exemption from
registration available.
I understand that SEACOR will issue stop transfer instructions to its transfer
agent with respect to the Consideration Shares to be received in the Share
Exchange and that a restrictive legend will be placed on certificates delivered
to me evidencing such Stirling Shares in substantially the following form:
"This certificate and the shares represented hereby have been
issued pursuant to a transaction governed by Rule 145 ("Rule
145") promulgated under the Securities Act of 1933, as amended
(the "Securities Act"), and may be sold or otherwise disposed
of only in accordance with the terms of a letter agreement,
dated May _____, 2001, between the holder of this certificate
and the issuer of this security (a copy of which is on file in
the principal office of such issuer) which contains further
restrictions on the transferability of the shares represented
hereby."
The term "Consideration Shares" as used in this letter shall mean and include
not only the common stock of SEACOR as presently constituted, but also any other
stock which may be issued in exchange for, in lieu of, or in addition to, all or
any part of such Consideration Shares.
I hereby acknowledge that I understand the requirements of this letter and the
limitations imposed upon the transfer, sale or other disposition of the Stirling
Shares to be received by me in the Share Exchange.
Very truly yours,
---------------------------------
Name:
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SCHEDULE 7
==========
LIMITATION OF WARRANTORS' LIABILITY
1. Notwithstanding the provisions of Clause 9, the Warrantors shall not
be liable in respect of a breach of any of the Warranties if and to
the extent that the loss occasioned thereby has been recovered under
the Tax Deed and vice versa.
2. The Warrantors shall not be liable under the Warranties to the extent
that the facts which might result in a Claim or possible Claim were
Disclosed.
3. The Warrantors shall not be liable in respect of any Claim:-
3.1 to the extent that the subject of the Claim is allowed or
provided for or reserved in the Accounts or the Completion
Accounts or has been included in calculating creditors or
deducted in calculating debtors in the Accounts or the
Completion Accounts and (in the case of creditors or debtors)
is identified in the records of the Company or to the extent
such matter was specifically referred to in the notes to the
Accounts or the Completion Accounts; or
3.2 to the extent that a Claim arises or is increased:
3.2.1 wholly or partly from an act or omission occurring at
the request of or with the written consent of the
Purchaser or (on or after the date hereof) the
Company or any of its directors, other officers,
employees or agents (other than the Warrantors);
3.2.2 wholly or partly from an act or omission compelled by
law;
3.2.3 as a result of any increase in rates of Taxation or
any change in legislation or regulation relating to
Taxation occurring or coming into force since the
date of this Agreement whether or not having
retrospective effect; or
3.2.4 wholly or partly as a result of the passing or coming
into force of or any change in any enactment, law,
regulation, directive, requirement or any practice of
any government, government department or agency or
regulatory body (including but not limited to
extra-statutory concessions of the Inland Revenue)
after the date of this Agreement whether or not
having retrospective effect;
3.2.5 by an act or omission carried out voluntarily by the
Purchaser or any Affiliate of the Purchaser or any of
their respective directors, employees or agents after
99
the date of Completion and which the Purchaser or
Affiliate or any such person (as the case may be)
ought reasonably to have known would give rise to or
increase the amount of the Claim;
3.2.6 because of any change of Accounting Reference Date of
the Company and its Subsidiaries from 31st December
or because of any change in any of the accounting
policies, bases or practices of the Company or any of
the Subsidiaries.
3.3 To the extent that:-
3.3.1 the amount of a Claim is recovered from the insurers
of the Company or any of the Subsidiaries or would
have been so recovered if the policies of insurance
of the Company or relevant Subsidiary were maintained
on substantially similar terms or otherwise affording
the same degree of insurance cover as those existing
at the date of this Agreement; or
3.3.2 the Claim is contingent only (unless and until such
contingent liability becomes an actual liability and
is due and payable).
4. The liability of the Warrantors in respect of any Claim (other than a
Tax Claim or Vessel Claim):
4.1 shall not arise unless and until the amount of such Claim
exceeds(pound)20,000 in respect of any single item and such
Claim shall be disregarded for all purposes unless the total
amount of all such Claims exceeds (pound)250,000;
4.2 shall not arise unless and until the amount of such Claim when
aggregated with the amount of any other such Claim exceeds
(pound)250,000 in which event the Warrantors shall only be
liable for the excess.
5. The liability of the Warrantors in respect of any Vessel Claim:-
5.1 shall not arise unless and until the amount of the Vessel Claim
exceeds (pound)10,000 in respect of any single item and such Vessel
Claim shall be disregarded for all purposes unless the total amount
of all such Vessel Claims exceeds (pound)200,000;
5.2 shall not arise unless and until the amount of any such Vessel Claim
when aggregated with the amount of any other such Vessel Claim
100
exceeds (pound)200,000 in which event the Warrantors shall only be
liable for the excess.
6.1 Subject to the provisions of paragraph 6.2 below the liability of the
Warrantors in respect of any Tax Claim:-
6.1.1 shall not arise unless and until the amount of the Tax
Claim exceeds (pound)3,000 in respect of any single item
and such Tax Claim shall be disregarded for all purposes
unless the total amount of all such Tax Claims exceeds
(pound)50,000;
6.1.2 shall not arise unless and until the amount of such Tax
Claims when aggregated with the amount of any other such
Tax Claim exceeds (pound)50,000 in which event all of such
Tax Claims shall be recoverable hereunder and not just the
excess.
6.2 The provisions of paragraph 6.1 shall not apply to any Tax Claims
relating to the Demerger the full amount of which shall be
recoverable hereunder.
7. The Warrantors shall have no liability in respect of any Claim
relating to the Pre Completion Period to the extent that the amount
of the Claim is taken into account in the Completion Accounts.
8. The liability of each Warrantor:-
8.1 shall not (when aggregated with the amount of all the other
Claims) exceed an amount equal to his proportion of the
Consideration;
8.2 shall be limited to that percentage set opposite his name in
column (7) of Schedule 1.
PROVIDED THAT in calculating the Consideration received by each
Warrantor for these purposes the monetary equivalent of each
Consideration Share received by him shall be the lower of
(pound)34.21 per share and the sterling equivalent of the average
closing price on the New York Stock Exchange as reported in the Wall
Street Journal of common stock of $0.01 per share in the capital of
the Purchaser for the 30 days immediately preceding Completion using
an exchange rate based on the average New York closing price for
pounds sterling during such period as reported in the Wall Street
Journal.
9. The liability of the Warrantors in respect of any Claim other than in
respect of the Tax Warranties or the Tax Deed shall cease on May 2003
except in respect of matters which have been the subject of a bona
fide written claim which is made before such date by or on behalf of
101
the Purchaser to the Warrantors giving sufficient details of all
material aspects of the Claim including the Purchaser's bona fide
estimate of the amount thereof. Any such Claim shall (if it has not
previously been 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 nine months of such
notification to the Warrantors.
10. The liability of the Warrantors in respect of any Claim in respect of
the Tax Warranties or under the Tax Deed shall cease on May 2008
except in respect of matters which have been the subject of a bona
fide written claim which is made before such date by or on behalf of
the Purchaser to the Warrantors giving sufficient details of all
material aspects of the claim including the Purchaser's bona fide
estimate of the amount thereof. Any such Claim shall (if it has not
previously been 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 nine months of such
notification to the Warrantors.
11. Any payment made by the Warrantors in respect of a breach of any
Warranties or payment made under the Tax Deed, or any other payment
made pursuant to this Agreement, shall be and shall be deemed to be
pro tanto a reduction in the price paid for the Shares under this
Agreement.
12. If the Purchaser or any member of the Purchaser's Group becomes aware
of any matter which might give rise to a Claim or upon any Claim
being made, the following provisions shall apply:-
12.1 the Purchaser shall forthwith give reasonable details by
written notice to the Warrantors of the matter and shall
consult with the second named of the Vendors' Representatives
with respect to the matter;
12.2 the Purchaser shall not knowingly make, and shall procure that
no other member of the Purchaser's Group shall knowingly make,
any admission of liability in respect of or compromise or
settle the matter without the prior written consent of the
Warrantors, such consent not to be unreasonably withheld or
delayed;
12.3 the Purchaser shall provide, and shall procure that all other
members of the Purchaser's Group provides, the Warrantors and
the Warrantors' professional advisors with all reasonable
access to premises, personnel and to all relevant assets,
documents, records and information within the power,
102
possession or control of any member of the Purchaser's Group
of or relating to the Company and its Subsidiaries to enable
the Warrantors and their professional advisors to examine such
assets, documents, records and information and to take
photographs or photocopies thereof at its expense in order to
appraise themselves of all facts, matters and information
relevant to the Claim subject always to not adversely
interfering with the business of the Purchaser or the
Purchaser's Group;
12.4 the Purchaser, so far as is reasonably practicable, shall
procure that other members of the Purchaser's Group, retain
and preserve all relevant assets, documents, records and
information within the power, possession or control of the
Purchaser's Group of or relating to the Company which are or
may be relevant in connection with any Claim for so long as
any actual or prospective Claim remains outstanding;
12.5 in connection with any proceedings relating to the Claim
(other than against the Warrantors), the Purchaser shall and
shall procure that each member of the Purchaser's Group will
permit the Warrantors in the name of the Purchaser and/or the
relevant member of the Purchaser's Group (as appropriate) to
appoint such professional advisors and to take such action as
the Warrantors may consider reasonably necessary or desirable
to avoid, dispute, resist, appeal, compromise or defend the
Claim, action or demand and any adjudication in respect
thereof (including, if the Warrantors so request, conduct of
the proceedings or negotiations) subject only to consulting
the Purchaser and/or the relevant member of the Purchaser's
Group (as appropriate) prior to taking any such action, on the
basis that the Warrantors shall provide the Purchaser with
such indemnity and security therefor as the Purchaser and/or
the relevant member of the Purchaser's Group (as appropriate)
may reasonably require in relation to any such request or
nomination by the Warrantors.
13. If at any time the Warrantors (or any of them) pay to the Purchaser
an amount pursuant to a Claim and the Purchaser or the Company or any
Subsidiary is to become entitled to recover from any other person not
being an Affiliate of the Purchaser and not being a Warrantor
(including, without limitation, any taxation or other authority or
under any policy of insurance maintained by the Company or any
Subsidiary from time to time) any sum in respect of the same
circumstances giving rise to such Claim:-
13.1 without prejudice to the Purchaser's rights first to
claim against the Warrantors pursuant to this Agreement, the
103
Purchaser shall, or shall procure that the Company or relevant
Subsidiary shall, take all reasonable steps to enforce such
recovery, and shall forthwith repay to the Vendors so much of
the amount paid by them to the Purchaser as does not exceed
the sum recovered from such other person less all reasonable
costs, expenses and taxation incurred by the Purchaser or the
Company or relevant Subsidiary in recovering that sum from
such other person; or
13.2 at the Warrantors' option, subject to the Warrantors
indemnifying the Purchaser or the Company or relevant
Subsidiary to their respective reasonable satisfaction, the
Purchaser shall, or shall procure that the Company or relevant
Subsidiary shall, for a nominal consideration assign to the
Purchaser, to the extent possible at law, the benefit of the
rights of recovery, reimbursement or refund which the
Purchaser or the Company or relevant Subsidiary has against
such other person in respect of the matter giving rise to the
Claim.
14. The liability of the Warrantors is also limited as follows:-
14.1 payment of any Claim under the Warranties shall pro tanto
satisfy and discharge any other claim thereunder which is
capable of being made in respect of the same subject matter;
14.2 the Warranties are given on the basis that the Company and the
Subsidiaries continue to carry on their respective businesses
after Completion as going concerns;
14.3 nothing in this Agreement shall in any way diminish the duty
at law of the Purchaser to mitigate the loss arising from any
breach of the Warranties;
14.4 save in respect of statements made fraudulently, the parties
accept that they are to have no rights or liabilities in
respect of pre-contractual statements;
14.5 if there shall be any inconsistency between the provisions of
this Schedule and the other provisions of this Agreement then
the provisions of this Schedule shall prevail.
15. The Purchaser shall, or shall procure the Company or relevant
Subsidiary shall, so far as it is able to do so and based on the
information available to it from time to time keep the Warrantors
fully and promptly informed of any actual or prospective right of
recovery from any third party as referred to in paragraph 13 above.
104
16. Without prejudice to any other provision herein for the protection of
the Warrantors, the Purchaser shall and shall procure that the
Company and each of its Subsidiaries shall take all reasonable steps
to mitigate any loss which is or may be the subject of any Claim in
respect of the Warranties.
17. The Purchaser shall give written notice to the Warrantors as soon as
it becomes aware of any Vessel Claim which relates to any damage to
or lack of repair of any Vessel (and the awareness of the Warrantors
shall not be attributable to the Purchaser) and the Warrantors shall
have the right to appoint at their own expense their own surveyor to
inspect the Vessel concerned prior to rectification of any damage or
repair (except in the case of emergency).
18. If the Warrantors pay a Claim in respect of any warranted debt and
the debt or part thereof is subsequently recovered the Purchaser
shall repay to the Warrantors the lesser of the amount of such Claim
paid by the Warrantors and the amount of the debt actually recovered.
19. The Purchaser confirms to the Warrantors that none of its
representatives, namely ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ Gran and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
is actually aware of any matter which will give rise to a Claim.
105
SCHEDULE 8
==========
PART 1
VESSELS
------------------------------------------------------- ---------------------------------
Vessel Allocated Value (GBP)
------------------------------------------------------- ---------------------------------
Stirling Tay 13,194,444
------------------------------------------------------- ---------------------------------
Stirling Spey 13,194,444
------------------------------------------------------- ---------------------------------
Stirling Aquarius 8,138,889
------------------------------------------------------- ---------------------------------
Stirling Pegasus 7,291,667
------------------------------------------------------- ---------------------------------
Stirling Altair 4,200,000
---------------------------------
Stirling Capella 2,343,750
---------------------------------
Stirling ▇▇▇▇ 2,343,750
------------------------------------------------------- ---------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇ 3,125,000
------------------------------------------------------- ---------------------------------
Stirling Esk 4,340,278
------------------------------------------------------- ---------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇ 16,500,000
------------------------------------------------------- ---------------------------------
Stirling Sirius 5,555,556
------------------------------------------------------- ---------------------------------
Stirling Spica 5,555,556
------------------------------------------------------- ---------------------------------
PART II
VESSEL HULLS
------------------------------------------------------- ---------------------------------
Vessel Hulls Allocated Value (GBP)
------------------------------------------------------- ---------------------------------
▇▇▇▇▇▇▇▇ Hull No. 711 (up-lift) (to be added to 861,400
progress payments made)
------------------------------------------------------- ---------------------------------
BAE Marine Systems Hull 322 (up-lift) (to be added to 547,215
progress payments made)
------------------------------------------------------- ---------------------------------
------------------------------------------------------- ---------------------------------
Total 87,191,949
------------------------------------------------------- ---------------------------------
106
SCHEDULE 9
PRE COMPLETION DIVIDENDS
------------------------------------ -------------------------- --------------------- ------------------- -----------------
Vendor Amount of Dividend Date of Declaration Period Referable To Date of Payment
------------------ ------------------ ------------------- ------------------- ---------------
------------------------------------ -------------------------- --------------------- ------------------- -----------------
1. Ordinary Shareholders & B (pound)3,402,836 2 May 2001 1/1/96-31/12/00 24 April 2001
Ordinary Shareholders
------------------------------------ -------------------------- --------------------- ------------------- -----------------
2. Additional Dividend to (pound)470,870 2 May 2001 1/1/01-31/3/01 24 April 2001
Ordinary Shareholders & B
Ordinary Shareholders
------------------------------------ -------------------------- --------------------- ------------------- -----------------
3. 3i in respect of A Ordinary (pound)133,699 February 2001 to 31/12/00 February 2001
Shares
------------------------------------ -------------------------- --------------------- ------------------- -----------------
4. 3i in respect of A Ordinary (pound)196,522 April 2001 1/1/01-31/3/01 24 April 2001
Shares Participating dividend (pound)130,221 actually
Class dividend to A Ordinary paid due to
Shareholders overpayment)
------------------------------------ -------------------------- --------------------- ------------------- -----------------
5. Participating dividend per on basis of formula in 2 May 2001 1/4/01-30/4/01 Post Completion
share to A Ordinary Note 1
Shareholders
------------------------------------ -------------------------- --------------------- ------------------- -----------------
107
------------------------------------ -------------------------- --------------------- ------------------- -----------------
6. Participating dividend per on basis of formula in 4 May 2001 1/4/01-Completion Post Completion
share to Ordinary Shareholders note 1
& B Ordinary Shareholders
------------------------------------ -------------------------- --------------------- ------------------- -----------------
7. 3i in respect of the Deferred (pound)1,607,901.80 4 May 2001 - 4 May 2001
Shares
------------------------------------ -------------------------- --------------------- ------------------- -----------------
NOTE 1: Formula is that contained in Article 3.1 of SSCO.
108
Signed as a Deed by } [Signed by]
IAIN ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ } Iain ▇.▇. ▇▇▇▇▇▇▇▇
in the presence of:- }
Witness: Name ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Occupation Solicitor
Signed as a Deed by } [Signed by]
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ } Iain ▇.▇. ▇▇▇▇▇▇▇▇
in the presence of:- } [as Attorney]
Witness: Name ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address as above
Occupation
Signed as a Deed by } [Signed by]
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ } ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
in the presence of:- }
Witness: Name ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address as above
Occupation
Signed as a Deed by } [Signed by]
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ } ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
in the presence of:- }
Witness: Name ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address as above
Occupation
109
Signed as a Deed by } [Signed by]
▇▇▇▇ ▇▇▇▇▇▇▇▇ } ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
in the presence of:- } [as Attorney]
Witness: Name ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address as above
Occupation
Signed as a Deed by } [Signed by]
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ } ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
in the presence of:- } [as Attorney]
Witness: Name ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address as above
Occupation
Signed as a Deed by } [Signed by]
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ } ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
in the presence of:- } [as Attorney]
Witness: Name ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address as above
Occupation
Signed as a Deed by } [Signed by]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ } ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
in the presence of:- } [as Attorney]
Witness: Name ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address as above
Occupation
110
Signed as a Deed by } [Signed by]
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ } ▇. ▇▇▇▇▇▇▇▇▇
in the presence of:- }
Witness: Name ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Occupation
Signed as a Deed by } [Signed by]
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ } ▇. ▇▇▇▇▇▇▇▇▇
in the presence of:- } [as Attorney]
Witness: Name ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address as above
Occupation
Signed as a Deed by } [Signed by]
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ } ▇▇▇▇▇ ▇. ▇▇▇▇▇
in the presence of:- }
Witness: Name ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address as above
Occupation
Signed as a Deed by } [Signed by]
▇▇▇▇▇▇ ▇▇▇▇▇ } ▇▇▇▇▇ ▇. ▇▇▇▇▇
in the presence of:- } [as Attorney]
Witness: Name ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address as above
Occupation
111
Signed as a Deed by } [Signed by]
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LAUCHLAN } ▇.▇. ▇▇▇▇▇▇▇▇
in the presence of:- }
Witness: Name ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address as above
Occupation as above
Signed as a Deed by } [Signed by]
▇▇▇▇ ▇▇▇▇▇▇▇▇ } ▇.▇. ▇▇▇▇▇▇▇▇
in the presence of:- } [as Attorney]
Witness: Name ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address as above
Occupation as above
Signed as a Deed by } [Signed by]
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ } ▇▇▇▇▇ ▇. ▇▇▇▇▇
in the presence of:- } [as Attorney]
Witness: Name ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address as above
Occupation as above
Signed as a Deed by } [Signed by]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ } ▇▇▇▇▇ ▇. ▇▇▇▇▇
in the presence of:- } [as Attorney]
Witness: Name ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address as above
Occupation as above
112
Executed as a Deed by
3i GROUP PLC
acting by
[Signed by] ▇. ▇▇▇▇▇▇▇▇
Director
............................................... Witness: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Director/Secretary ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Solicitor
Executed as a Deed by
SEACOR SMIT INC
acting by
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
113
