Exhibit 2.1
DATED THE DAY OF 2002
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BETWEEN/
(1) THE PARTIES LISTED IN THE FIRST SCHEDULE
(2) ▇▇▇▇▇▇▇ RIVER EUROPE GMBH
AND
(3) ▇▇▇▇▇▇▇ RIVER LABORATORIES INC.
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SHARE PURCHASE AGREEMENT
RE: BIOLOGICAL LABORATORIES EUROPE LIMITED
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SOLICITORS
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇
LM/JOR - 7JUNE, 2002
I N D E X
SECTION PAGE
SECTION 1.00 DEFINITIONS AND INTERPRETATION------------------------------------------------------ 2
SECTION 2.00 SALE OF SHARES---------------------------------------------------------------------- 8
SECTION 3.00 CONSIDERATION----------------------------------------------------------------------- 9
SECTION 4.00 COMPLETION AND PRE-COMPLETION CONDITIONS-------------------------------------------- 12
SECTION 5.00 WARRANTIES-------------------------------------------------------------------------- 21
SECTION 6.00 RESTRICTION ON THE VENDORS---------------------------------------------------------- 37
SECTION 7.00 INDEMNITIES ------------------------------------------------------------------------ 40
SECTION 8.00 VENDORS WARRANTY REGARDING TITLE TO SHARES------------------------------------------ 41
SECTION 9.00 ▇▇. ▇▇▇▇▇'▇ WARRANTIES-------------------------------------------------------------- 41
SECTION 10.00 ANNOUNCEMENTS----------------------------------------------------------------------- 43
SECTION 11.00 FURTHER ASSURANCE AND AVAILABILITY OF INFORMATION----------------------------------- 43
SECTION 12.00 CONTINUING OBLIGATIONS AND ASSIGNMENT----------------------------------------------- 44
SECTION 13.00 COSTS------------------------------------------------------------------------------- 44
SECTION 14.00 NOTICES----------------------------------------------------------------------------- 44
SECTION 15.00 SEVERABILITY------------------------------------------------------------------------ 46
SECTION 16.00 ENTIRE AGREEMENT AND VARIATION------------------------------------------------------ 46
SECTION 17.00 GENERAL PROVISIONS------------------------------------------------------------------ 47
SECTION 18.00 GOVERNING LAW AND JURISDICTION------------------------------------------------------ 48
FIRST SCHEDULE VENDORS-------------------------------------------------------------------- 49
SECOND SCHEDULE DIRECTORS AND SECRETARY---------------------------------------------------- 50
THIRD SCHEDULE SUBSIDIARIES--------------------------------------------------------------- 51
FOURTH SCHEDULE DEED OF INDEMNITY---------------------------------------------------------- 53
FIFTH SCHEDULE PROPERTIES----------------------------------------------------------------- 54
SIXTH SCHEDULE WARRANTIES----------------------------------------------------------------- 55
SEVENTH SCHEDULE SERVICE AGREEMENTS--------------------------------------------------------- 116
EIGHTH SCHEDULE IRREVOCABLE PROXY --------------------------------------------------------- 119
NINTH SCHEDULE ENVIRONMENTAL INDEMNITY---------------------------------------------------- 120
TENTH SCHEDULE PART A - ▇▇▇▇▇ PROPERTY MAP
PART B - SECOND ▇▇▇▇▇ PROPERTY MAP
ANNEXURE A MEMORANDUM AND ARTICLES OF ASSOCIATION
OF THE COMPANY AND THE SUBSIDIARIES
ANNEXURE B AUDITED (CONSOLIDATED) ACCOUNTS
ANNEXURE C ACCOUNTING PRINCIPLES OF BIOLOGICAL LABORATORIES EUROPE LIMITED
THIS AGREEMENT is made the day of 2002
BETWEEN the several persons whose names and addresses are set out in the first
column of the FIRST SCHEDULE (together called the "Vendors" which expression
shall include the legal personal representatives and successors thereof) of the
first part
AND
▇▇▇▇▇▇▇ RIVER EUROPE GMBH (the "Purchaser") a company incorporated under the
laws of Germany with its principal place of business at ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ of the second part;
AND
▇▇▇▇▇▇▇ RIVER LABORATORIES INC. an American company having its principal place
of business at ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of
America (the "Guarantor") of the third part.
W H E R E A S:-
A. Biological Laboratories Europe Limited (the "Company") is a limited
company which was incorporated in Ireland on the 10th day of January,
1994 under certificate number 211641 and at the date hereof has an
authorised share capital of euro 1,245,079.02 divided into 775,200
Ordinary shares of euro 1.50 each and 64,800 Cumulative Redeemable
Preference Shares of euro 1.269738 each of which 345,400 Ordinary
Shares of euro 1.50 each and 64,800 Cumulative Redeemable Preference
Shares of euro 1.267938 each are issued and are fully paid. The 64,800
Cumulative Redeemable Preference Shares of euro 1.267938 each are
non-voting.
B. The Vendors are together the legal and beneficial owners of the entire
issued and allotted ordinary share capital of the Company as set out in
Part I of the FIRST SCHEDULE such share capital being registered in the
register of members of the Company in the manner set out in Part I of
the FIRST SCHEDULE.
C. The Vendors have agreed to sell and the Purchaser or its directly or
indirectly wholly owned subsidiary has agreed to purchase the Shares
(as herein defined) on the terms and conditions contained in this
Agreement.
D. The SECOND SCHEDULE contains particulars of the Directors and Secretary
of the Company and the Subsidiaries at the date hereof.
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E. The Memorandum and Articles of Association of the Company and the
Subsidiaries as at the date hereof are in the form annexed hereto as
ANNEXURE A and signed on behalf of the parties for the purpose of
identification.
F. The Company is the registered and beneficial owner of the entire issued
share capital of those companies listed in the THIRD SCHEDULE.
G. The Guarantor is joined as a party to this Agreement for the purposes
of Section 5.19 and for no other reason.
NOW in consideration of the mutual covenants conditions agreements warranties
and payments hereafter set forth and provided for IT IS HEREBY COVENANTED AND
AGREED by and between the parties hereto as follows:-
SECTION 1 - DEFINITIONS AND INTERPRETATION
1.1. DEFINITIONS
In this Agreement and in the Schedules the following words and
expressions shall unless otherwise expressly stated or unless the
context otherwise requires have the following meanings:-
THE "ACCOUNTS" means the audited Balance Sheet as at the Relevant Date
and the audited profit and loss account for the year ended on the
Relevant Date of each of the Group Companies including in the case of
the Group the audited consolidated Balance Sheet as at the Relevant
Date and the audited consolidated profit and loss account for the
period ended on the Relevant Date, including in each case the
directors' and auditors' reports thereon and any notes thereto together
with all documents which are required by law to be attached thereto
copies of which are attached hereto as ANNEXURE B;
THE "ADDITIONAL CONSIDERATION" means the sum of euro 2,000,000;
"ASSOCIATE" means any person firm or company excluding the Company:-
(a) which is controlled by the person concerned; or
(b) of which the person is an officer ; or
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(c) who is the spouse, parent, issue, brother or sister of the person;
THE "BALANCE SHEET" in relation to each of the Group Companies means
its audited balance sheet as of the Relevant Date;
"BUSINESS DAY" means any day except Saturdays and Sundays on which
banks in the City of Dublin are open for business;
the "COMPANY" means the company referred to in recital A hereof;
the "COMPANY'S AUDITORS" means ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇;
the "COMPLETION ACCOUNTS" means the accounts referred to in Section
3.2(a) hereof;
the "COMPANIES ACTS" means the Companies Acts, 1963 to 2001 together
with all orders and regulations made thereunder;
"COMPLETION" means completion of the sale and purchase of the Shares
pursuant and in accordance with Section 4;
the "CONSIDERATION" shall be the figure ascertained in accordance with
Section 3.1;
"▇▇▇▇▇▇▇ RIVER LEGAL OPINION" means a legal opinion in the Agreed Terms
from the in-house legal counsel to ▇▇▇▇▇▇▇ River Laboratories Inc. as
to the authority and capacity of the Guarantor to enter into its
obligations under Section 5.19 of this Agreement;
"▇▇▇▇▇▇▇ RIVER GROUP" means ▇▇▇▇▇▇▇ River Laboratories Inc., its
subsidiaries and any Holding Company of any of its subsidiaries and any
company in which any of the aforesaid directly or indirectly, holds or
controls 50% or more of the issued voting share capital or voting stock
or voting rights or holds or controls 50% or more of the rights to a
return of capital or profits or controls the composition of the board
of directors and "Member of the ▇▇▇▇▇▇▇ River Group" shall be construed
accordingly;
"CUMULATIVE REDEEMABLE PREFERENCE SHARES" means 64,800 Cumulative
Redeemable Preference shares in the issued Share Capital of the
Company;
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THE "DEED OF INDEMNITY" means a deed in the form set out in the FOURTH
SCHEDULE;
THE "DIRECTORS" means the persons listed in the SECOND SCHEDULE;
THE "DISCLOSURE LETTER" means the letter of even date herewith from the
Warrantors to the Purchaser disclosing information constituting
exceptions to the Warranties;
"ENVIRONMENTAL INDEMNITY" means the Indemnity in the form set out in
the NINTH SCHEDULE;
"EURO" AND "euro" means the lawful currency for the time being of
Ireland;
THE "GENERAL WARRANTIES" means those warranties set out in Clause 1 to
46 inclusive of the SIXTH SCHEDULE;
the "GROUP COMPANIES" means the Company and the Subsidiaries or where
the context so requires any one or more thereof and "Group" shall mean
the Company and the Subsidiaries and "Member of the Group" shall be
construed accordingly;
"HOLDING COMPANY" means a holding company as defined under Section 155
of the Companies ▇▇▇ ▇▇▇▇;
THE "INTELLECTUAL PROPERTY" means all patent, patent applications,
trade ▇▇▇▇, trade ▇▇▇▇ applications, trade names, designs, copyright,
know-how, technical knowledge and information or other similar
industrial or commercial rights used by or owned by any of the Group
Companies in connection with any part of the business of any of the
Group Companies anywhere in the world and whether registered or not but
excluding for the avoidance of doubt the Ovagen Intellectual Property
and the intellectual property the subject of the Patent Licence;
the "MERGERS ACT" means the Mergers & Take-Overs (Control) Acts, 1978
to 2002;
the "MINISTER" means the Minister for Enterprise, Trade & Employment;
"▇▇▇▇▇ AND CAULFIELD LETTER" means a letter of even date in the Agreed
Terms from ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ to the
Purchaser;
"NET ASSETS" means the total assets of the Group less the total
liabilities of the Group and less any provisions for liabilities and
charges and government grants not released to the profit and loss
account;
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"NET CASH" means the cash in hand and the Company's deposits repayable
on demand to the Company, less overdrafts;
"OVAGEN OPTION" mean the option in the Agreed Terms concerning the
issued share capital of Ovagen International Limited and the Ovagen
Intellectual Property;
"OVAGEN INTELLECTUAL PROPERTY" means technical knowhow. patents, patent
applications, trade ▇▇▇▇, trade ▇▇▇▇ applications, tradenames, designs,
copyright, technical knowledge and information or other similar
industrial or commercial rights used by or owned by Ovagen
International Limited (or any of the people it employs or any of its
directors or shareholders) in connection with the Ovagen Project.
"OVAGEN PROJECT" means a project established by Ovagen International
Limited and/or its shareholders to establishing a sustainable germ free
chicken which is derived by surgical procedure.
"PATENT LICENCE" means an agreement in the Agreed Terms amending the
Patent Licence dated 11 June, 1998 between the Company, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇;
"PENSION ACTS" means the Pensions ▇▇▇ ▇▇▇▇ to 2002;
THE "PROPERTIES" means the properties of the Group Companies short
particulars of which are set out in the FIFTH SCHEDULE;
"PURCHASER'S AUDITORS" means PricewaterhouseCoopers;
"PURCHASER'S SOLICITORS" means ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇;
"RELEVANT BUSINESS" means the business of researching and testing
medical products, animal breeding, animal research, veterinary trials
and testing of medical products for animal and human use and all
business which may be carried on in connection with foregoing.
the "RELEVANT DATE" means 31 January, 2002;
THE "SHARES" means the entire issued and allotted ordinary share
capital of the Company;
the "SUBSIDIARIES" means the companies, certain details of which are
listed in the THIRD SCHEDULE and a "Subsidiary" means a subsidiary as
defined in Section 155 of the Companies Act, 1963;
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"SDCA" means the Stamp Duties Consolidation Act, 1999;
"TAXATION" includes (without limiting the generality of the same) all
forms of taxation, duties, imposts, levies and rates whatsoever and
whether of Ireland or elsewhere including (but without limitation)
income tax, corporation tax (including any additional duty to
corporation tax and any surcharge), corporation profits tax, advance
corporation tax, capital gains tax, capital acquisitions tax,
residential property tax, value added tax, customs and other import and
export duties, excise duties, pay related social insurance (PRSI),
social welfare and social insurance contributions, payroll taxes
generally, rates and water rates, withholding tax, deposit interest
retention tax, dividend withholding tax and any and all other taxes,
levies, duties or impositions whether similar to, replaced by or
replacing any of them or otherwise and any penalty, charge and interest
included in or relating to any tax assessment or liability therefor and
whether incurred as principal, agent or trustee and regardless of
whether such taxes, penalties, charges and interest are directly or
primarily chargeable against or attributable to any of the Group
Companies or any other person, firm or companies and all costs,
charges, interest, fines, penalties, surcharges and expenses in
addition or relating thereto and the expression "tax" shall be
construed accordingly;
"TCA" means the Taxes Consolidation Act, 1997 (as amended);
the "TAX WARRANTIES" means those warranties set out in Clauses 47 to
172 inclusive of the SIXTH SCHEDULE;
"VENDORS AUDITORS" means ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇;
"VENDORS' SOLICITORS" means ▇▇▇▇▇▇ ▇▇▇;
"WARRANTIES" means the General Warranties and the Tax Warranties set
out in Section 4.00 and the SIXTH SCHEDULE.
"WARRANTORS" means the Vendors.
1.2 INTERPRETATION
1.2.1 Words and phrases the definition of which is contained or referred to
in the Companies Acts shall be construed as having the meanings thereby
attributed to them.
1.2.2 References to statutory provisions shall be construed as references to
those provisions as respectively amended or re-enacted (whether before
or after the date hereof) from time to time and shall include any
provisions of which they are re-enactments (whether with or without
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modification) and shall also include any subordinate legislation made
from time to time under those provisions.
1.2.3 Reference to the singular includes reference to the plural and vice
versa and reference to the masculine gender includes reference to the
feminine and neuter genders and vice versa.
1.2.4 Unless the context otherwise requires, reference to any section,
clause, sub-clause, paragraph, recital, schedule or annexure is to a
section, clause, sub-clause, paragraph, recital, schedule or annexure
(as the case may be) of or to this Agreement.
1.2.5 Any reference to a document as being in Agreed Terms shall mean a
document in terms agreed between the parties thereto or their
respective Solicitors and initialled by them for the purpose of
identification.
1.2.6 All warranties, representations, indemnities, covenants, agreements and
obligations given or entered into by more than one person are given or
entered into jointly and severally.
1.2.7 All warranties, representations, indemnities, covenants, agreements and
obligations given or entered into by any of the Vendors or the
Warrantors being an individual shall be binding upon that Vendor or
Warrantor and upon his or her personal representatives and estate.
1.2.8 The headings contained in this Agreement, the Schedules hereto and in
the index to this Agreement, are inserted for convenience of reference
only and shall not in any way form part of nor affect or be taken into
account in the construction or interpretation of any provisions of this
Agreement or the Schedules.
1.2.9 The Schedules to this Agreement shall form part of this Agreement and
the expression "this Agreement" as used in any of the Schedules shall
mean this Agreement.
1.2.10 All references to Schedules and Annexures shall be deemed to be
references to Schedules and Annexures to this Agreement.
1.2.11 Words such as "hereunder", "hereto", hereof" and "herein" and other
words commencing with "here" shall unless the context clearly indicates
to the contrary refer to the whole of this Agreement and not to any
particular section or clause thereof.
1.2.12 For the purposes of this Agreement and of the Deed of Indemnity and of
the Disclosure Letter a matter shall be treated as being within the
knowledge, information or belief of the Warrantors or the Vendors', if
such matter is within the knowledge, information or belief individually
or collectively of the Vendor's Solicitors or Vendor's Auditors and any
statement
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such as "so far as the Warrantors are aware" or "so far as the Vendors
are aware" or "to the best of the knowledge information or belief of
the Warrantors" or "to the best of the knowledge, information or belief
of the Vendors" shall be construed accordingly.
1.2.14 Reference in this Agreement to writing or similar expressions include
where the context so admits transmission by telecopier or comparable
means of communication.
1.2.15 Reference to a document includes that document as amended or
supplemented from time to time.
1.2.16 All reference in this Agreement to costs, charges or expenses include
any value added tax or similar tax charged or chargeable in respect
thereof.
1.2.17 Each party has had the opportunity to take legal advice on this
Agreement so that no term shall be construed "contra proferentem"
1.2.18 The descriptions set out in square brackets in paragraphs 47 to 172 of
the SIXTH SCHEDULE in relation to certain taxation provisions are for
convenience of reference only and shall not affect or limit the
interpretation of any provision of those paragraphs.
1.2.19 Reference to any tax in respect of income or profits or gains or
chargeable gains earned accrued or received on or before a particular
date or in respect of a particular period shall include any tax in
respect of income or profits or gains deemed to have been or treated as
earned, accrued or received at or before that date or in respect of
that period;
1.2.20 References in the context of taxation to the result of acts, omissions
or transactions occurring or effected prior to Completion shall include
the combined result of two or more acts, omissions or transactions of
which one or more shall have occurred or been effected prior to
Completion and provided that any acts, omission or transactions which
occur or are effected post Completion shall have occurred or been
effected in the ordinary course of business post Completion;
SECTION 2 - SALE OF SHARES
2.1 Subject to the terms and conditions of this Agreement, each of the
Vendors shall sell as legal and beneficial owner and the Purchaser
shall purchase the Shares (either in its own name or in the name of its
nominee) in reliance on the Warranties, the Deed of Indemnity, the
Environmental Indemnity and the other provisions of this Agreement free
from all liens, charges, equities and encumbrances and together with
all rights now or hereafter attaching
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thereto which shares are set out opposite the Vendors' names in the
third column of Part I of the FIRST SCHEDULE.
2.2 The Purchaser shall not be obliged (but shall be entitled at its sole
discretion) to complete the purchase of any of the Shares unless the
purchase of all of the Shares is completed simultaneously.
2.3 The execution by the Vendors of this Agreement shall constitute a
consent by each of them in relation to the sale of the Shares and each
of the Vendors hereby irrevocably waives all rights of pre-emption (if
any) conferred on him / her or otherwise in relation to the Shares.
SECTION 3 - CONSIDERATION
3.1 The Purchase Price for the Shares shall consist of , and be payable as
follows:
(a) The sum of euro 22,500,000 (twenty two million five hundred
thousand euro) shall be paid on Completion in accordance with
Section 4.8 to the Vendors' Solicitors for and on behalf of the
Vendors; and
(b) A further sum of not more than euro 2,500,000 (two million five
hundred thousand euro) ("the Retention Amount") or such lesser
amount as may be determined under Section 3.2(a) to (g) inclusive
will be payable in accordance with the terms of Section 3.2 (a) to
(g) inclusive; and
(c) The Additional Consideration shall be paid in accordance with the
terms of Section 3.3;
Provided always that payment of any sum due hereunder to the Vendors'
Solicitors shall be a complete discharge of the Purchaser's obligation
to make any payment to the Vendors and payment to the Vendors'
Solicitors shall be deemed to be a payment to the Vendors and the
Purchaser shall have no further liability hereunder in respect thereof.
The Vendors acknowledge and irrevocably accept these terms.
COMPLETION ACCOUNTS
3.2 (a) As soon as reasonably practicable after Completion and in any
event no later than 30 Business Days after Completion, the Company
shall produce a set of completion accounts of the Company and the
Subsidiaries consisting of profit and loss for the period from 1
February, 2002 to Completion and a balance sheet as at Completion
with appropriate notes thereto as at Completion (the "Completion
Accounts") which
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Completion Accounts shall state the Net Assets position and Net
Cash position of the Company and the Subsidiaries at Completion.
(b) Upon finalisation of the Completion Accounts (that is no later than
30 Business Days after Completion) a copy of the final Completion
Accounts shall be delivered by the Purchaser to ▇▇. ▇▇▇▇▇ for and
on behalf of the Vendors for review together with written
confirmation of the amount of the Retention Amount (if any) due
hereunder.
(c) Subject to the terms of Section 3.2 (g) below in the event:-
(i) That the Net Assets of the Company and the Subsidiaries
on Completion as per the Completion Accounts is less
than euro 8,800,000 or the Net Cash of the Company and
the Subsidiaries as at Completion is less than euro
1,400,000 then the full amount of the Retention Amount
shall not be due or payable to the Vendors but the
Retention Amount shall be reduced by each euro that the
Net Cash and/or the Net Assets (as the case may be) as
per the Completion Accounts are less than the aforesaid
figures provided that if the deficit in the Net Assets
and / or the Net Cash is euro 2,500,000 or more then no
sum shall be due to the Vendors and the Retention
Amount shall be retained by the Purchaser; or
(ii) That the Net Assets of the Company and the Subsidiaries
on Completion as per the Completion Accounts is euro
8,800,000 or more AND the Net Cash of the Company and
the Subsidiaries as at Completion is euro 1,400,000 or
more then the Purchaser shall pay the full amount of
the Retention Amount to the Vendors' Solicitors for and
on behalf of the Vendors at the same time as the
Completion Accounts are delivered to ▇▇. ▇▇▇▇▇ under
Section 3.2(b) above.
3.2(d) (i) If the Completion Accounts are such that the Retention
Amount will be reduced or that no payment will be made
both as provided under and pursuant to Section
3.2(c)(i) above then ▇▇. ▇▇▇▇▇ may within 10 Business
Days of receipt of the Completion Accounts signify by
notice in writing ("a Dispute Notice") to the Purchaser
that he is not satisfied with the Completion Accounts.
▇▇. ▇▇▇▇▇ and the Purchaser shall then endeavour to
reach agreement upon same within a further 14 Business
Days of service of such Dispute Notice ("the Initial
Period") and upon agreement the relevant sum shall
subject to the terms of Section 3.2(g) below be paid to
the Vendors' Solicitors for and on behalf of the
Vendors.
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(ii) If ▇▇. ▇▇▇▇▇ (in accordance with the terms of 3.2d(i)
above) does not serve a Dispute Notice within 10
Business Days of receipt of the Completion Accounts
then, the Completion Accounts shall be deemed to be
accepted and the Purchaser shall subject to the terms
of Section 3.2 (g) below then make the relevant
payment under 3.2(c)(i) above if any (and as
calculated by the Purchaser) to the Vendors'
Solicitors on behalf of the Vendors and there shall
be no further obligation on the Purchaser to make any
payment in respect of the Retention Amount.
(iii) If ▇▇. ▇▇▇▇▇ has served a Dispute Notice in
accordance with the terms of 3.2(d)(i) above and ▇▇.
▇▇▇▇▇ and the Purchaser cannot agree the Completion
Accounts within the Initial Period, then the parties
shall refer the matter to an agreed independent
Chartered Accountant of no less than 10 years
standing (the "Expert") to determine the figures. If
the parties cannot agree on such person within a
period of 14 Business Days after the Initial Period
then either ▇▇. ▇▇▇▇▇ or the Purchaser may request
the President of the Institute of Chartered
Accountants in Ireland (or in the event of him being
unwilling or unable to act then the next senior
person who is willing and able to so act) to appoint
such Expert to determine the issues and settle the
dispute. Each of ▇▇. ▇▇▇▇▇ and the Purchaser shall be
entitled to make submissions to the Expert within a
period of 21 Business Days following his appointment.
The Expert shall determine the matter and shall
provide a copy of his determination to each of the
parties which determination shall be final and
binding save in the case of manifest error or fraud
but subject to the terms of Section 3.2 (g) below.
Pending the determination of the Expert there shall
be no obligation on the Purchaser to make any payment
under this Agreement in respect of the Retention
Amount and regardless of determination of the Expert
the Purchaser shall never be obliged to make any
payment exceeding the Retention Amount.
(iv) Each party shall pay the Expert's costs in the
proportion as the Expert shall determine based on his
findings.
(v) The Expert acts as an expert and not as an
arbitrator.
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3.2(f) BASIS OF PREPARATION OR COMPLETION ACCOUNTS:
The Completion Accounts shall be prepared on a basis
consistent with that adopted in preparing the annual accounts
of the Company for the three years ended 31 January, 2002
(save in the case of deferred tax whereby FRS 19 rather than
SSAP 15 shall be applied). The accounting policies used shall
be the policies as detailed in ANNEXURE C.
3.2(g) Notwithstanding the provisions of Section 3.2(a) to (e) above
inclusive the Vendors hereby agree that the Purchaser shall be
entitled to withhold an amount of euro 1 million from any
amount due to the Vendors under Section 3.2(a) to (e) above
inclusive and shall be entitled to retain that amount so
withheld for a period of 6 months from the date on which any
payment was due under Section 3.2(a) to (e) above inclusive.
Any amount so withheld may be used by the Purchaser solely for
the purpose of discharging any claim under the Environmental
Indemnity which arises after the date hereof or which arises
in the period of 6 months as aforesaid. In the event that any
claim is made under the Environmental Indemnity then the
Purchaser shall be entitled to use the amount so withheld to
discharge that claim and shall not be obliged to pay any
amount so used to the Vendors. In the event that after the
period of 6 months there has been no claim under the
Environmental Indemnity or some of the amount withheld has not
been used by the Purchaser then, the amount not used to
discharge a claim will be paid to the Vendors Solicitors for
and on behalf of the Vendors which payment (if any) shall be a
complete discharge of the Purchaser's obligations under
Section 3.2. The provisions of this Clause are without
prejudice to any right that the Purchaser has to pursue a
claim under the Environmental Indemnity.
ADDITIONAL SHARE CONSIDERATION
3.3 The Additional Consideration shall be payable by the Purchaser in the
following amounts to two of the Vendors only being, ▇▇. ▇▇▇▇▇ and ▇▇.
▇▇▇▇▇▇▇▇▇ on the following dates:-
(a) The sum of euro 333,333.33 (Three hundred and thirty three
thousand, three hundred and thirty three euro and thirty three
cent) shall be payable to ▇▇. ▇▇▇▇▇ and the sum of euro
333,333,33 (Three hundred and thirty three thousand, three
hundred and thirty three euro and thirty three cent) shall be
payable to ▇▇. ▇▇▇▇▇▇▇▇▇ both on the first anniversary of
Completion;
(b) The sum of euro 333,333.33 (Three hundred and thirty three
thousand, three hundred and thirty three euro and thirty three
cent) shall be payable to ▇▇. ▇▇▇▇▇ and the sum of
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euro 333,333.33 (Three hundred and thirty three thousand, three
hundred and thirty three euro and thirty three cent) shall be
payable to ▇▇. ▇▇▇▇▇▇▇▇▇ both on the second anniversary of
Completion; and
(c) The sum of euro 333,333.33 (Three hundred and thirty three
thousand, three hundred and thirty three euro and thirty three
cent) shall be payable to ▇▇. ▇▇▇▇▇ and the sum of euro
333,333.33 (Three hundred and thirty three thousand, three
hundred and thirty three euro and thirty three cent) shall be
payable to ▇▇. ▇▇▇▇▇▇▇▇▇ both on the third anniversary of
Completion.
SECTION 4 - COMPLETION AND PRE-COMPLETION MATTERS
4.1 Subject to the provisions of this Section, Completion shall take place
at the offices of the Purchaser's Solicitors on the date hereof.
4.2 Completion shall not take place unless and until the satisfactory
fulfilment and/or performance (as the case may be) contemporaneously
with, or prior to Completion, of the following matters:-
A. the parties shall have notified the transactions hereby provided
for to the Minister pursuant to the Mergers Act and shall have
responded to any queries raised by the Minister in respect thereof
and pursuant thereto either:-
(i) the Minister shall have stated in writing that the Minister
has decided not to make an order under Section 9 of the
Mergers Act in relation to the sale and purchase herein; or
(ii) the Minister shall have stated in writing that the Minister
has made an order under Section 9 of the Mergers Act
prohibiting the sale and purchase herein except on certain
conditions which the Purchaser approves of in writing; or
(iii) three months shall have elapsed from (a) the last date on
which all the enterprises involved in the sale and purchase
herein shall have notified the Minister or (b) the last date
on which any further information requested by the Minister
shall have been furnished to the Minister, whichever is the
later and the Minister not having made any order in relation
to the sale and purchase herein within that time;
B. Forbairt, Enterprise Ireland, Udaras Na Gaeltachta and Mayo County
Enterprise Board having confirmed in writing to the Purchaser to
its reasonable satisfaction and
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to the Company their consent to the proposed acquisition by the
Purchaser of the Shares and in each case that it does not propose
to cancel, revoke or rebate any grant paid or payable to any of the
Group Companies or terminate any lease with any of the Group
Companies as a result of the acquisition by the Purchaser of the
Shares and in the case of Forbairt only it confirming that the
rights attaching to the Cumulative Redeemable Preference Shares in
the capital of the Company are as provided for in the Agreement
dated 30 September, 1998 between Messrs. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇;
C. The written consent of Ulster Bank Limited to the purchase by the
Purchaser of the Shares having been obtained and confirmation from
Ulster Bank Limited that its floating security over the company's
undertaking, property and assets has not crystallised and it is not
actually aware of any matter that might lead to such
crystallisation;
D. The Purchaser shall have received all such consents and/or
approvals of governmental and other agencies which it shall
reasonably deem to be necessary in connection with the purchase of
the Shares and such consents and/or approvals shall:-
(i) be received in terms reasonably satisfactory to the
Purchaser; and
(ii) remain in full force and effect on Completion.
E. No government or governmental supranational or state agency or
regulatory body or trade union or works council or any other person
or organisation having:-
(i) instituted or threatened any action, suit or investigation to
restrain, prohibit or otherwise significantly challenge the
completion by the Vendors or the Purchaser of any of the
transactions contemplated by this Agreement; or
(ii) threatened to take any action adverse to the interests of the
Vendors, any of the Group Companies or the Purchaser as a
result or in anticipation of any such transaction; or
(iii) enacted any statute or regulation which would prohibit,
materially restrict or materially delay completion of any
such transaction.
F. The Vendors having procured the unconditional release without any
continuing liability of any guarantees or indemnities given by any
of the Group Companies for any obligations of the Vendors or any of
them or any third parties.
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G. The Company and ▇▇. ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ having
agreed the terms of the Patent Licence;
H. The Purchaser having carried out and being satisfied with the
outcome of its due diligence, including an environmental audit of
the Properties;
I. The Vendors having satisfied the Purchaser that the relevant Group
Companies have good and marketable title to the Properties and that
the Properties are adequately separated from adjoining Properties
and that the relevant Group Companies have all necessary easements,
leases and other rights in or over property necessary for the
carrying out of the business of the relevant Group Companies and
all requisite planning permissions and bye-law approvals.
4.3 The Purchaser shall be entitled to waive compliance with the provisions
of Clause 4.2 in whole or in part as it sees fit save in respect of the
provisions of sub-clauses A.
4.4 Upon Completion the Vendors shall:-
A. Deliver to the Purchaser for itself and, where appropriate, as
agent for each of the Group Companies:-
(i) transfers of the Shares duly executed by the registered
holders thereof in favour of the Purchaser or as it may
direct together with the relative covering share certificates
or in the case of any lost share certificate an indemnity in
lieu thereof in terms satisfactory to the Purchaser or its
nominee;
(ii) any waivers, consents or other documents required to vest in
the Purchaser the full beneficial ownership of the Shares and
to enable the Purchaser to procure them to be registered in
the name of the Purchaser and/or its nominees;
(iii) the resignations of the directors and the secretary of each
of the Group Companies, with a written acknowledgement under
seal from each of them in the Agreed Terms that he has no
claim against the relevant Group Company in respect of breach
of contract, compensation for loss of office, redundancy,
unfair or wrongful dismissal or on any other ground
whatsoever in respect of such resignation;
(iv) insofar as they are not in the custody of the Company, all
the financial and accounting books and records of each of the
Group Companies;
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(v) a letter in the Agreed Terms duly executed by the Vendors
confirming that all management or other agreements between
the Vendors and any of the Group Companies have been
terminated and that there are no sums due to the Vendors or
claims outstanding or pending under any such agreements save
for any sums due to the Vendors in respect of salary as a
result of them being employees of the Company;
(vi) the Deed of Indemnity duly executed by the Covenantors named
therein and each of the Group Companies together with the
Disclosure Letter duly executed by the Warrantors;
(vii) all the statutory books, minute books and other record books
(duly written up to date) of each of the Group Companies and
their Certificates of Incorporation and any Certificates of
Incorporation on Change of Name and common seals together
with any cancelled share certificates;
(viii) all other documents of record and other documents and papers
of the Group Companies including all available documents of
title to the Properties and all other agreements and
contracts of whatsoever nature or kind in its possession or
under its control including (without prejudice to the
generality of the foregoing) the originals of the following
licences/certificates:-
(a) Current Certificate of Registration of the Properties
under the Cruelty to Animals Act, 1876; and
(b) Current Certificate of Good Laboratory Practice;
(ix) certificates in respect of all issued shares in the capital
of each of the Subsidiaries and transfers of all shares in
any Subsidiary held by any nominee in favour of such persons
as the Purchaser shall direct;
(x) bank statements or other suitable information showing the
financial position of each of the Group Companies with their
bankers at close of business on the Business Day immediately
prior to Completion;
(xi) service agreements between the Company and ▇▇. ▇▇▇▇▇▇▇▇▇ and
the Company and ▇▇. ▇▇▇▇▇ in the form set out in the SEVENTH
SCHEDULE DULY EXECUTED;
(xii) any power of attorney under which any document is executed;
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(xiii) the resignation in writing of the existing auditors of each
of the Group Companies acknowledging that they have no
claim against the particular Group Company arising from
their resignations and containing a statement that there
are no circumstances connected with their resignation which
they consider should be brought to the notice of the
members or creditors of the Group Companies (or any of
them);
(xiv) the audited accounts for the Group Companies for the year
ended 31 January, 2002 approved and signed by the Directors
and Auditors and copies of the Annual General Meeting
Minutes for each of the Group Companies as held together;
(xv) the Patent Licence duly executed by all parties thereto;
(xvi) the original written consent in the Agreed Terms of
Forbairt and any other grant bodies and Ulster Bank Limited
such consents being referred to in Section 4.2 B and C
respectively;
(xvii) Releases of Guarantees if any pursuant to Section 4.2F duly
executed;
(xiii) all company credit cards of the Vendors and all Company
cheque books will be delivered to the Purchaser;
(xix) the acknowledgements and assignments signed and referred to
in Section 4.6 C, D and E;
(xx) executed irrevocable proxies in accordance with Section 4.9
hereunder;
(xxi) the Ovagen Option in the Agreed Terms duly executed;
(xxii) the ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ Letter in the Agreed Terms duly
executed;
(xxiii) the Environmental Indemnity in the Agreed Terms duly
executed; and
B. Procure that the following business is transacted at properly
constituted meetings of the directors of each of the Group
Companies (as the case may be):-
(i) (in the case of the Company only) the Directors will
approve the transfers of the Shares for registration and
the entry of the transferees in the register of members of
the Company, in each case subject only to the transfers
being subsequently presented duly stamped;
-19-
(ii) (in the case of the Subsidiaries) the directors of the
Subsidiaries will approve the transfers referred to in
sub-clause (ix) of Clause 4.4A for registration subject
only to those transfers being subsequently presented duly
stamped;
(iii) the Deed of Indemnity and the Environmental Indemnity will
be approved and executed under seal by each of the Group
Companies;
(iv) any person nominated by the Purchaser for appointment as a
director or the secretary of any of the Group Companies
will be so appointed;
(v) the resignations referred to in Clause 4.4A(iii)
(Directors) and (xiii) (Auditors) shall be submitted and
accepted;
(vi) the service agreements referred to in Clause 4.4A(xi) shall
be approved and executed on behalf of the relevant Group
Company;
(vii) all relevant bank mandates of the Group Companies shall be
amended in accordance with the Purchaser's instructions;
(viii) the Purchaser's Auditors shall be appointed auditors;
(ix) The Patent Licence shall be approved and executed under
Seal of the Company;
4.5 The Vendors shall on Completion give to each of the Group Companies (as
the case may be) such notice as is required by Section 53 of the
Companies Act, 1990 in the case of those Vendors who are directors
and/or secretary of a Group Company.
4.6 The Vendors undertake with the Purchaser that upon or before Completion
each of the Vendors will:
A. repay and fulfil or procure there to be repaid and fulfilled to
each of the Group Companies all sums and liabilities which are
owing incurred or outstanding to each of the Group Companies at
Completion by him or by any Associate of himself;
B. return to each of the Group Companies any item of its property in
the possession or control of himself or any Associate of himself;
C. confirm in writing that;
-20-
(i) neither he nor any such Associate has any claim,
entitlement or rights whatsoever (whether contractual,
tortuous, statutory or otherwise howsoever) against any of
the Group Companies (other than in respect of any amounts
due to him in respect of salary as employee of the Company)
or in respect of any of the Shares;
(ii) that none of the Group Companies is in any way obliged or
indebted to him or to any such Associate (other than in
respect of any amounts due to him in respect of salary as
employee of the Company); and
(iii) that save as specified in the confirmation in writing
neither he nor any such Associate owns or has any interest
in any item which is then or has been at any time during
the six months preceding Completion used in the business of
any of the Group Companies ;
D. assign and procure that such of his Associates as the Purchaser may
specify assign to the Company or to any Subsidiary thereof (as the
case may be) any rights in any Intellectual Property now or then
held by him which is used in the business of any of the Group
Companies other than the Irish Patent Number S80644 entitled Flea
breeding apparatus and system.
E. acknowledge in writing and undertake that neither he nor any
Associate of his then has, or at any time during the six months
preceding Completion has had, any right to use or any other right
or interest in or relating to any such Intellectual Property
referred to in D above other than the Irish Patent Number S80644
entitled Flea breeding apparatus and system.
F. procure that any guarantee, indemnity or other obligation of any
kind incurred by any of the Group Companies to any person for the
account of any of the Vendors or any Associate of any of the
Vendors is effectively discharged and released to the reasonable
satisfaction of the Purchaser and upon signature of this Agreement
will deliver to the Purchaser written confirmation in agreed form
confirming that any discharges and/or releases required by this
paragraph have been delivered to the Purchaser or that there are no
such guarantees, indemnities or other obligations in existence
which require release under this paragraph
and each Vendor hereby agrees to indemnify each of the Group
Companies and the Purchaser and keep each of the Group Companies
and the Purchaser indemnified (in respect of his not complying with
the foregoing paragraphs 4.6A to F (inclusive))
-21-
against any loss or liability incurred by any of the Group
Companies and/or the Purchaser which the Group Companies and or the
Purchaser would not have incurred had the foregoing paragraphs 4.6
A to F (inclusive) been wholly complied with in respect of that
particular Vendor.
PROVIDED THAT nothing in this clause or in any document entered into
pursuant to this clause shall:-
(i) require the return to any of the Group Companies of any chattel
held by any of the Vendors or any of their Associates to enable
him more effectively to perform his duties to any of the Group
Companies; or
(ii) apply to any claim, entitlement, right, obligation, indebtedness
or interest disclosed in the Disclosure Letter (including any so
specified which relate to his employment by any of the Group
Companies).
4.7 Following Completion and pending registration of the Purchaser or its
nominees as the registered holder of the Shares the Vendors declare
that so long as they remain the registered owner of any of the Shares
they will stand and be possessed of same and the dividends and other
distributions of profits or surplus or other assets in respect thereof
and all rights arising out of or in connection therewith in trust for
the Purchaser. To give full effect to the provision of this Section the
Vendors shall on Completion give to the Purchaser an irrevocable proxy
in the form set out in the EIGHTH SCHEDULE, to allow the Purchaser to
exercise all rights in relation to the Shares which a registered owner
thereof can exercise.
4.8 Provided that the Vendors shall comply with all their obligations under
Section 4 hereof the Purchaser shall on Completion:_
(a) Pay to the Vendors' Solicitors the sum of euro 22,500,000 (twenty
two million five hundred thousand euros) by electronic transfer of
funds and the Vendors hereby acknowledge and accept that payment by
the Purchaser to the Vendors' Solicitor shall be a complete
discharge of the Purchaser of its obligation to make such payment;
and
(b) Deliver the ▇▇▇▇▇▇▇ River Legal Opinion.
SECTION 5 - WARRANTIES
5.1 The Warrantors hereby jointly and severally warrant and represent to
and undertake with the Purchaser and its successors in title in
relation to each of the Group Companies in the terms set out in the
SIXTH SCHEDULE subject only to any exceptions fairly and accurately
disclosed in
-22-
the Disclosure Letter, and in the documents annexed thereto. No
document or matter or information shall be deemed to have been
disclosed to the Purchaser except to the extent that it is either
accurately and fairly set out in or (in the case of a document) annexed
to the Disclosure Letter. The Vendors acknowledge that the Purchaser
has entered into this Agreement on the basis of and in reliance upon
the Warranties. The Warranties shall be separate and independent and
shall not be limited by reference to any other paragraph of the SIXTH
SCHEDULE or by anything in this Agreement. Liability under any Warranty
shall not be confined to breaches discovered before Completion nor in
any way be modified or discharged by Completion. Reference in the
Warranties to "the Company" shall include each company in the Group.
5.2 The Warrantors jointly and severally warrant that all information
relating to the Group Companies (or any of them) which is known to the
Vendors or would on reasonable enquiry be known to the Vendors and as
to the business affairs, assets and liabilities of each of the Group
Companies has been disclosed in the Disclosure Letter to the Purchaser.
5.3 Save in the case of fraud or wilful concealment, the Vendors hereby
irrevocably undertake (in the event of any claim being made against
them (or any of them) in connection with the sale of the Shares to the
Purchaser) not to make any claim against any of the Group Companies, or
against any director or employee of any of such companies on whom they
may have relied before agreeing to any term of this Agreement or
authorising any statement in the Disclosure Letter, and the Vendors
agree with the Purchaser (as trustee for the Company) to waive any
rights the Vendors may have in respect of any misrepresentation
inaccuracy or omission in or from any information or advice supplied or
given by any of the Group Companies or their respective directors or
employees for the purposes of or in connection with the giving of the
Warranties and the preparation of the Disclosure Letter. None of the
information supplied by any of the Group Companies or their
professional advisers prior to the date of this Agreement to the
Vendors or their agents, representatives or advisers in connection with
the Warranties or the contents of the Disclosure Letter or otherwise in
relation to the business or affairs of any of the Group Companies shall
be deemed a representation warranty or guarantee of its accuracy by any
of the Group Companies or any of their employees to the Vendors and
accordingly the Vendors waive any claim against any of the Group
Companies or their employees which they might otherwise have in respect
of it.
5.4 Notwithstanding the provisions of Clause 5.1:-
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A. The Warrantors shall not be liable in respect of any breach of the
Warranties if and to the extent that the loss occasioned thereby
has been recovered under the Deed of Indemnity or the Environmental
Indemnity;
B. The liability of the Warrantors pursuant to the General Warranties
(save the Tax Warranties) shall expire on the third anniversary of
Completion save as regards any alleged breach of any of the
Warranties in respect of which notice in writing (containing such
details of the event or circumstance giving rise to such claim as
are available to the Purchaser and an estimate (if capable of
preparation by the Purchaser) of the total amount of the
Warrantors' liability therefor) shall have been served on the
Warrantors (or any of them) prior to that date PROVIDED ALWAYS that
there shall be no such time limit insofar as any claim relates to
or is delayed as a result of fraud, wilful misconduct, dishonesty
or wilful concealment or where any claim relates to title to the
Shares or the right of the Vendors to sell the Shares free from all
encumbrances of any kind
C. The liability of the Warrantors pursuant to the Tax Warranties
shall expire on the seventh anniversary of Completion save as
regards any claim for breach of any of the Tax Warranties in
respect of which notice in writing (containing such details of the
event or circumstance giving rise to such claim as are available to
the Purchaser and an estimate (if capable of preparation by the
Purchaser) of the total amount of the Warrantors' liability
therefor) shall have been served on the Warrantors (or any of them)
prior to that date PROVIDED ALWAYS that there shall be no such time
limit insofar as any claim relates to or which arose as a
consequence of or is delayed as a result of fraud, wilful
misconduct, dishonesty or wilful concealment.
D. Any claim in respect of which notice shall have been given in
accordance with sub-clause 5.4 B and/or sub-Clause 5.4 C shall, if
it has not been previously satisfied, settled or withdrawn be
deemed to have been irrevocably withdrawn and lapsed unless
proceedings in respect of such claim have been issued and served on
the Vendors (or any of them) or their process agent Messrs ▇▇▇▇▇▇
▇▇▇, Solicitors, not later than the expiry of the period of 12
(twelve) months from and including the date of such notice.
E. The Warrantors shall not be liable under the Warranties in respect
of any claim:-
(i) unless the aggregate amount of all claims for which the
Warrantors would otherwise be liable under this Agreement
and the Deed of Indemnity and the
-24-
Environmental Indemnity exceeds euro 100,000 but if
liability exceeds that figure then all claims including
claims previously notified, shall accrue against and be
recoverable in full from one euro upwards from the
Warrantors PROVIDED THAT in the case of any claim relating
to the Vendors' title to or the status or validity of the
Shares or any claim which arose as a consequence of or is
delayed as a result of fraud, wilful misconduct, dishonesty
or wilful concealment the liability of the Warrantors shall
be without limitation; or
(ii) to the extent that the aggregate amount of the liability of
the Warrantors for all claims made under the Warranties and
the Deed of Indemnity and Environmental Indemnity would
thereby exceed euro 27,000,000 or such lesser figure as may
actually have been paid hereunder by the Purchaser as a
result of the operation of the provisions of Section 3.2
but without prejudice to the Purchaser's rights to recover
all sums up to and including euro 27,000,000 (or such
lesser figure as may actually have been paid hereunder by
the Purchaser as a result of the operation of the
provisions of Section 3.2) PROVIDED ALWAYS THAT in the case
of any claim relating to the Vendors' title to or the
status and validity of the Shares or any claim which arose
as a consequence of or is delayed as a result of fraud,
wilful misconduct, dishonesty or wilful concealment the
liability of the Warrantors shall be without limitation; or
(iii) to the extent that such liability arises solely by reason
of an increase in the rate of Taxation after Completion; or
(iv) to the extent that a specific provision or reserve in
respect of the liability was made in the Accounts or in the
Completion Accounts provided that this exemption may be
used only once in respect of a specific provision or
reserve; or
(v) to the extent that such liability is in respect of tax and
which tax is attributable to income or profits of the Group
Companies in respect of the period between the Relevant
Date and Completion and for which any of the Group
Companies is primarily liable and which arose in the
ordinary course of business of the Group Companies between
the Relevant Date and Completion; or
-25-
(vi) to the extent that such liability arises due to a breach of
any new legislation not in force at the date hereof; or
(vii) to the extent that and only to the extent that the
Purchaser or any of the Group Companies is entitled to
recover and has recovered any loss or damage suffered by
the Purchaser or any of the Group Companies arising out of
such claim under the terms of any insurance policy for the
time being in force but provided always that nothing in
this sub-section shall prevent the Purchaser from being
able to claim any amount from the Warrantors which is not
recoverable under such insurance policies plus any tax and
costs reasonably and properly incurred in such recovery;
(viii) to the extent that such claim would not have arisen but for
a voluntary transaction, act or omission effected by the
Purchaser or the Company at any time after Completion which
the Purchaser knew or ought reasonably to have known would
give rise to the claim other than any such transaction, act
or omission:
(a) carried out in the ordinary course of business; or
(b) carried out under a binding commitment (whether legally
binding or not) created before Completion; or
(c) carried out as a result of a request (not initiated by
or on behalf of the Purchaser) by a regulatory
authority (including without limitation the Revenue
Commissioners) to comply with any law or any statute or
carried out in order to comply with any law; or
(d) carried out with the knowledge of the Vendors (or any
of them);
(ix) to the extent that such claim would not have arisen but for
the winding up of, or the cessation of, or any material
change in the nature or conduct of, any trade carried on by
the Company where the Purchaser knew or ought reasonably to
have known such change or cessation or winding up would
create such liability being a winding up, cessation or
change occurring on or after Completion but excluding a
winding up, cessation or change resulting directly from a
claim under the Warranties or the Deed of Indemnity or the
Environmental Indemnity;
-26-
(x) to the extent that any income, profits or gains (after
payment of any tax thereon) to which that claim is directly
attributable were accrued or earned or actually received by
the Company and are available to the Company at Completion
and are not provided for in the Accounts or in the
Completion Accounts and continue to be available to the
Company at the time of the claim but provided that any such
income profit or gains is net of any tax payable by the
Company or any Group Company thereon;
(xi) to the extent that such claim is or could be off-set,
reduced, or otherwise relieved by any tax relief which is
available to the Company at Completion and which has not
been previously identified in the Accounts or the
Completion Accounts and which has not been withdrawn or
clawed back and which is and will continue to be available
to the Company;
(xii) to the extent that (and only at the date when) any Taxation
for which a Group Company is actually assessed is actually
reduced or extinguished (and is not and cannot be clawed
back or reclaimed by any taxation authority or other
authority in which case no allowance or credit will be
given to the Warrantors under this clause or any credit
given to the Warrantors shall be disallowed) as a result of
any such claim or liability and after deducting the costs
and any additional Taxation incurred or suffered by a Group
Company as a consequence of claiming such reduction or
extinguishment but provided that claiming any such
reduction or extinguishment will not prejudice the
Purchaser or the Group Companies tax affairs or tax
planning; or
(xiii) to the extent that the claim is attributable (in whole or
in part and if in part to the extent thereof) to, or is
increased as a direct result of, a change made after the
date of Completion in the accounting policies or the length
of any accounting period for taxation purposes of the
Purchaser or the Group Company; or
(xiv) If and to the extent that such claim occurs or is increased
as a result of any change in legislation after the date of
this Agreement or the withdrawal after the date of this
Agreement of any published concession or published general
practice previously made by the Revenue Commissioners or
any other Taxation Authority (within Ireland) but for the
avoidance of doubt the foregoing exclusion shall not extend
to the Revenue Commissioners ruling of the 20 August, 1996
or the Company's entitlement to manufacturing relief
-27-
prior to Completion or post Completion with retrospective
effect to periods prior to Completion;
(xv) to the extent that such liability arises by reason of the
voluntary withdrawal post Completion of any claim,
election, surrender or disclaimer made or notice given by
the Company prior to the date hereof where the Purchaser
knew or ought reasonably to have known that such withdrawal
of any such claim, election, surrender or disclaimer would
give rise to such claim;
5.5 To the extent that the same subject matter is dealt with by more than
one of the Warranties and a payment is made by the Warrantors (or any
of them) to the Purchaser as a result of a claim by the Purchaser based
on any one or more of the Warranties such payment shall preclude a
further claim by the Purchaser in respect of the same subject matter
and the same loss or damage based on another of the Warranties.
5.6 The amount of any successful claim against the Vendors under this
Agreement or the Deed of Indemnity or the Environmental Indemnity shall
be deemed to constitute a reduction in the Consideration.
5.7 The rights and remedies of the Purchaser in respect of a breach of any
of the Warranties and the Deed of Indemnity and the Environmental
Indemnity shall not be affected:
A. by the sale and purchase of the Shares; or
B. by any event or matter whatsoever save a specific and duly
authorised written waiver and release by the Purchaser; or
C. by any investigation, audit, inquiry or examination made by or on
behalf of the Purchaser or the Guarantor at any time whether before
or after the date of this Agreement;
and no single or partial exercise of any right or remedy shall preclude
any further or other exercise.
5.8 All sums payable by the Warrantors to the Purchaser under this
Agreement shall be paid free and clear of all deductions or
withholdings whatsoever save only as may be required by law. If any
such deductions or withholdings are required by law the Warrantors
shall be obliged to pay to the Purchaser such sums as will after such
deduction or withholding has been made leave the Purchaser with the
same amount as it would have been entitled to receive in the absence of
any such requirement to make a deduction or withholding. In the event
of any sum
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as deducted or withheld being recovered in whole or in part by the
Purchaser then the Purchaser shall pay the amount recovered (less any
costs incurred in such recovery and taxation thereon) over to the
Vendors when received up to the amount so deducted or withheld.
5.9 For the purposes of the SIXTH SCHEDULE hereof all references to the
Company shall mean and include where the context so admits or
requires:-
(a) each Subsidiary; and
(b) the Company and its Subsidiaries.
and is without prejudice to the definition of Group Companies.
5.10 The Purchaser warrants to the Vendors that at the date hereof it is not
actually aware of any matter giving rise to a claim under the
Warranties, the information or details of which the Purchaser has not
made available to the Vendors (or some of them) or their advisers or
brought to the attention of the Vendors (or some of them) or their
advisers.
5.11 No breach or breaches of any of the Warranties or any covenant or
undertaking contained in this Agreement or under the Deed of Indemnity
or the Environmental Indemnity shall give rise to any right on the part
of the Purchaser to rescind this Agreement after Completion but this
shall not prejudice the right of the Purchaser to claim for any loss or
damages and shall not prejudice the Purchaser or the Group Companies
(or any of their) rights or limit their rights under this Agreement or
the Deed of Indemnity or the Environmental Indemnity.
5.12 Where the Purchaser or the Company has a claim against a third party
(including without limitation any taxation authority) in relation to
any matter which has given rise to a claim in respect of a Warranty
under this Agreement and in respect of which the Vendors have paid and
discharged in full their liability therefor to the Purchaser, then
subject as hereinafter provided, the Purchaser shall use all reasonable
endeavours to recover any amounts due from any such third party and
shall forthwith upon such recovery reimburse the Vendors the amount so
recovered up to the amount paid by the Vendors under this Agreement
(less any costs incurred in such recovery and less any tax on any
amount recovered) PROVIDED HOWEVER that the Vendors shall indemnify the
Purchaser against all costs, expenses, legal or otherwise reasonably
incurred by the Purchaser which shall be discharged by the Vendors on
an ongoing basis upon demand, provided further that the Purchaser shall
verify to the reasonable satisfaction of the Vendors any such costs and
expenses.
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5.13 Nothing in this Section 5 shall derogate from the Purchaser's
obligation to mitigate any loss which it or the Company suffers in
consequence of a breach of the Warranties and the Purchaser covenants
with the Vendors that it will and will procure that the Company will
take all reasonable steps insofar as is within its power to do so to
mitigate any loss or liability in respect of any claim under the
Warranties.
5.14 If in respect of any claim the liability of the Purchaser or the
Company is contingent then the Warrantors shall not be under any
obligation to make any payment in respect thereof unless and until such
time as the contingent liability ceases to be contingent and becomes
actual and provided always that notwithstanding the expiration of any
time limits in respect of making claims hereunder or issuing
proceedings or making payments, the Vendors shall, once the contingent
liability becomes actual be liable for such liability and to make the
appropriate payment notwithstanding the expiration of any time limits
hereunder provided any such claims are made with the stated time limits
as herein set-out.
5.15 The Warrantors shall be liable to make any payment in respect of any
claim for a breach of the warranties on the payment date, which shall
be ascertained as follows:-
ten Business Days after the amount of such claim shall have been agreed
by the parties as provided hereunder or adjudged as payable by a court
with jurisdiction to hear such dispute and from which there is no right
of appeal for either party unless, a court orders payment at an earlier
date.
5.16 In the event that the Warrantors at any time after the date hereof
shall wish to take out insurance against the Warrantors' liability
hereunder the Purchaser undertakes to provide such reasonable
information as the prospective insurer may reasonably require before
effecting such insurance provided that first the insurer enters into a
confidentiality agreement on terms reasonably satisfactory to the
Purchaser and provided that the Purchaser shall have no obligation
under this clause if in its reasonable opinion such disclosure of
information would or could prejudice any of the then Group Companies or
the Purchaser in any way.
5.17 PURCHASER'S UNDERTAKINGS AND ACKNOWLEDGEMENT THE GUARANTEE
5.17.1 The Purchaser shall procure that the Vendors shall be given within
seven days of a written request being made by the Vendors specific
information in relation to the Company in respect of the period prior
to Completion which is necessary to allow the Vendors file any personal
tax returns PROVIDED ALWAYS that the Purchaser shall not be obliged to
disclose any information which it reasonably believes is confidential
or the disclosure of which could be harmful or detrimental to any of
the Group Companies.
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5.17.2 The Purchaser acknowledges and agrees that the Vendors make no warranty
to it save only as and to the extent expressly set out in the
Warranties in the SIXTH SCHEDULE to this Agreement and save for any
representations made by the Vendors (or any of them) in any documents
to be delivered on Completion or to be delivered post Completion
arising out of this transaction.
5.18 The Purchaser warrants and undertakes that:-
(a) it has the requisite powers and authorities to enter into and
perform its obligations under this Agreement;
(b) this Agreement constitutes valid and binding obligations of the
Purchaser in accordance with its terms;
(c) the execution and delivery of, and the performance by the Purchaser
of its obligations under this Agreement will not:
(i) result in a material breach of, or constitute a material
default under, any material agreement to which the
Purchaser is a party or by which it is bound; or
(ii) result in a material breach of any order, judgment or
decree of any court or governmental agency to which the
Purchaser is a party or by which it is bound; or
(iii) require the Purchaser to obtain any consent or approval of,
or give any notice to or make any registration with any
governmental or other authority which has not been obtained
or made prior to Completion on an unconditional and
irrevocable basis (save for any legal or regulatory
entitlement to revoke the same other than for fraudulent
misrepresentation or misstatement by or on behalf of the
Purchaser);
(d) it is acting as principal and not as agent or broker for any other
person and, save as previously disclosed in writing to the Vendors,
immediately following its purchase of the Shares, at Completion no
person other than the Purchaser is legally or beneficially
interested in the Shares;
5.19 GUARANTEE
5.19.1 The Guarantor hereby guarantees the due, complete and punctual
performance by the Purchaser of its obligations under and
pursuant to Section 3.1(b) and 3.1 (c) only of this Agreement
subject always to the terms of ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ Letter
prevailing
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in respect of the Purchaser's obligations under Section 3.1(c)
and 3.3 of this Agreement (the "Guaranteed Obligations").
5.19.2 If the Purchaser shall default in the performance of any of
the Guaranteed Obligations then the Guarantor shall, subject
to Section 5.19.6 herein, upon a written demand being made on
the Guarantor discharge forthwith such of the Guaranteed
Obligations as shall not have been but should have been
performed or discharged at the time the written demand is made
upon the Guarantor.
5.19.3 The Guarantor's Obligations under Section 5.19.1 are those of
a mere surety.
5.19.4 The Guarantor's liability under Section 5.19.1 shall not be
discharged, released, diminished, impaired or otherwise
affected by:
(a) the winding-up, dissolution, examination or
re-organisation of the Purchaser;
(b) any time, waiver or other indulgence whatsoever being
granted or agreed to be granted to the Purchaser or the
Guarantor or any other person in respect of all or any of
the Guaranteed Obligations.
5.19.5 The Guarantor represents and warrants to the Vendors that:-
(a) the Guarantor has the necessary power and authority to
enter into and deliver this Guarantee and to perform the
Guarantor's obligations hereunder and that all necessary
actions to authorise the execution, delivery and
performance of this Guarantee and to observe and perform
the Guarantor's obligations under this Guarantee have been
taken;
(b) this Guarantee constitutes legal, valid and binding
obligations of the Guarantor;
(c) the execution and delivery by the Guarantor of this
Guarantee and the performance and observance by the
Guarantor of the Guarantor's obligations hereunder do not
and will not violate or result in a breach of, or exceed
any power granted to the Guarantor under:-
(i) the Guarantor's memorandum and articles of
association or other equivalent constitutional
documents
(ii) any law, rule or regulation to or by which the
Guarantor is subject or bound;
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(iii) any judgement, order, injunction, determination,
award or ruling of any court or arbitrator or any
judicial, administrative or governmental authority
to or by which the Guarantor is subject or bound;
5.19.6 The Vendors shall not be entitled to enforce this Guarantee without
first making a written demand upon the Purchaser.
SECTION 6 - RESTRICTION ON THE VENDORS
6.1 For the purpose of assuring to the Purchaser the full benefit of the
businesses and goodwill of each of the Group Companies each of the
Vendors undertakes with the Purchaser and its successors in title in
relation to the Shares for itself and as trustee for the Company and
with each of the Group Companies that:-
A. for the period of two years from the date of Completion each Vendor
will not within Ireland either on its own behalf or in conjunction
with or on behalf of any person, firm or company carry on or be
engaged concerned or interested either directly or indirectly in
carrying on the Relevant Business (other than by way of bona fide
investments or holding of shares not exceeding 5 per cent in
nominal value of any class or share capital of a company whose
share or loan capital is quoted or listed or regularly dealt in a
recognised Stock Exchange) other than as an employee of any of the
Group Companies;
B. for the period of two years from the date of Completion each Vendor
will not either on its own account or in conjunction with or on
behalf of any other person, firm or company solicit or entice away
from any of the Group Companies any officer or manager or employee
whether or not such person would commit a breach of his contract of
employment by reason of leaving service provided that this clause
6.1B shall not be construed so as to prevent or restrict the
Vendors (or any of them) from employing any such person who
approaches any of the Vendors or initiates a request to any of the
Vendors for employment without direct or indirect solicitation on
the Vendor's part or so as to prevent or restrict the Vendors (or
any of them) from soliciting or initiating an offer of employment
to any such person whose employment with any of the Group Companies
has been terminated by the action of a Group Company or whose
employment will terminate on the expiration of any notice period in
relation to which notice of termination had been served by a Group
Company at such time or from employing any person who applies to
the Vendors (or any one of them) for employment in response to a
public advertisement offering employment;
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C. for the period of two years from the date of Completion either on
its own account or in conjunction with or on behalf of any other
person solicit the custom of any customer of any of the Group
Companies who is a customer of the Group Companies at Completion or
use the Vendors' information of or influence over any such customer
or any person firm or company known to it as contracting with or
having dealings with any of the Group Companies to or for its own
benefit or that of any other person firm or company in competition
with any of the Group Companies;
D. the Vendors shall not be involved either directly or indirectly
with any company or business which has in its name, or part of its
name, regardless of the language used, the word "Biological
Laboratories" or "Entomology" or "Saotharlanna Bitheolaiocha
Idirnaisiunta Teoranta" or any variation, derivative or
abbreviation thereof or any similar name in such a form or style as
would tend to cause confusion of identity with any Group Companies
in the minds of the public;
E. the Vendors will not indicate in any manner whatsoever, in any
trade, business or operation any past association or relationship
with any of the Group Companies; and
F. each Vendor shall procure that no company owned or controlled by
such Vendor or any one or more of them (and insofar as such Vendor
is able to ensure the same none of its subsidiaries or associated
companies) shall act in such a way as would be a contravention of
the obligations contained in this paragraph.
PROVIDED ALWAYS and for the avoidance of doubt the provisions of
Sections 6.1A and B shall not prevent certain of the Vendors from
continuing their involvement in the development of the Ovagen
Intellectual Property or receiving income pursuant to the Patent
Licence.
6.2 Each Vendor agrees to keep all confidential information of the Group
Companies confidential including without prejudice any of the trade
secrets, secret or confidential operations, processes or dealings or
any other confidential information concerning any of the Group
Companies or any confidential information relating to client or
customers of the Group Companies involving but not limited to customer
lists and names, sales targets and statistics, market and share
statistics, survey and reports and pricing information relating to
sales and purchases by any Group Company until such time as the same
shall fall into the public domain otherwise than by reason of a breach
of this undertaking;
6.3 The restrictions contained in Clause 6.1 and 6.2 are considered
reasonable by the parties and no greater than is necessary for the
protection of the goodwill of the business and the value of
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the shareholdings in the Company but in the event that any such
restriction or any part thereof shall be found to be void but would be
valid if some part thereof were deleted or the period of application
reduced, such restriction shall apply with such modification as may be
necessary to make it valid and effective.
6.4 The Vendors hereby declare that the benefit of each of the above
agreements and obligations on their part shall be deemed to be separate
and severable and enforceable by the Purchaser accordingly.
6.5 The Vendors acknowledge that the remedy at law for any breach, or
threatened breach, of any of the restrictions contained in Section 6 of
this Agreement will be inadequate and, accordingly, the Vendors
covenant and agree that the Purchaser shall, in addition to any other
rights or remedies which the Purchaser may have, be entitled to such
equitable and injunctive relief as may be available from any court of
competent jurisdiction to restrain the Vendors (or any of them) from
any breach of such clause and such equitable and injunctive relief may
be granted without the necessity of proving actual damages
Such right to obtain equitable and injunctive relief may be exercised,
at the option of the Purchaser concurrently with, prior to, after or in
lieu of, the exercise of any other rights or remedies which the
Purchaser may have as a result of any such breach or threatened breach.
SECTION 7 - INDEMNITIES
7.1 The Warrantors hereby jointly and severally indemnify and agree to keep
indemnified the Purchaser and the Group Companies on demand against all
costs, claims, damages, losses, liabilities of any kind whatsoever and
expenses which they or any of them may incur out of or in connection
with any transaction, sale, contract agreement or disposal or
acquisition of any kind having been entered into by any of the Group
Companies with Biological Laboratories (Ballina) Limited, Company
Number 52235 ("Ballina") and/or Biological Laboratories Limited,
Company Number 109325 and/or Seragon Limited, Company Number 107290
and/or as a result of any of the Group Companies having as directors or
shareholders individuals who were directors or shareholders of Ballina
and/or Biological Laboratories Limited and/or Seragon Limited and/or as
a result of any of the directors or shareholders of any of the Group
Companies being connected in any way to Ballina and/or Biological
Laboratories Limited and/or Seragon Limited.
7.2 The Warrantors shall not be liable under the Indemnities in Section 7.1
to the extent that the aggregate amount of the liability of the
Warrantors for all claims made under the Indemnities in Section 7.1,
the Warranties and the Deed of Indemnity and the Environmental
Indemnity
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would thereby exceed euro 27,000,000 or such lesser figure as may
actually have been paid hereunder by the Purchaser as a result of the
operation of the provisions of Section 3.2 but without prejudice to the
Purchaser's rights to recover all sums up to and including euro
27,000,000 (or such lesser figure as may actually have been paid
hereunder by the Purchaser as a result of the operation of the
provisions of Section 3.2) PROVIDED ALWAYS that in the case of any
claim relating to the Vendors' title to or the status and validity of
the Shares or any claim which arose as a consequence of or is delayed
as a result of fraud, wilful misconduct, dishonesty or wilful
concealment of the liability of the Warrantors shall be without
limitation.
SECTION 8 - VENDORS' WARRANTY REGARDING TITLE TO SHARES
8.1 The Vendors hereby jointly and severally warrant that they are the
registered and beneficial owners of the entire issued and allotted
ordinary and voting share capital of the Company in the amounts
specified in the FIRST SCHEDULE hereto and the Shares are fully paid up
and each of the Vendors have the right and authority to sell and
transfer the full legal and beneficial ownership thereof to the
Purchaser on the terms set out in the Agreement and free from any
charge, lien or encumbrance of any kind and without the consent of any
third party and no party has any right or interest of any kind in the
Shares.
SECTION 9 - ▇▇. ▇▇▇▇▇'▇ WARRANTY
9.1 ▇▇. ▇▇▇▇▇ hereby undertakes with and warrants to the Purchaser that the
Company has an option (the "Option") to purchase from ▇▇. ▇▇▇▇▇ the
property specified in the map attached to Part A of the TENTH SCHEDULE
hereto (the "▇▇▇▇▇ Property") at a price of no more than euro 152,369
and that such Option is legal valid and enforceable against ▇▇. ▇▇▇▇▇
by the Company and can be exercised at any time in the next 10 years by
the Company.
9.2 RIGHT OF FIRST REFUSAL
9.2.1 ▇▇. ▇▇▇▇▇ is the absolute owner of the unencumbered freehold
interest in the property specified in the map attached to Part
B of the TENTH SCHEDULE ("the Second ▇▇▇▇▇ Property"). ▇▇.
▇▇▇▇▇ hereby agrees that if he wishes at any time after the
date hereof to sell or otherwise dispose of or transfer title
to the Second ▇▇▇▇▇ Property he shall not do so without first
offering the Second ▇▇▇▇▇ Property to the Purchaser so that
the Purchaser has a right of first refusal over the said
property.
9.2.2 The price at which ▇▇. ▇▇▇▇▇ shall offer the Second ▇▇▇▇▇
Property for sale to the Purchaser shall be at "fair market
value" as agreed between the Purchaser and Mr.
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▇▇▇▇▇ or if they fail to agree for 7 Business Days such fair
market value as assessed by an independent auctioneer agreed
to by the Purchaser and ▇▇. ▇▇▇▇▇ or in the event of a failure
to agree on the identity of such independent auctioneer within
a further 10 Business Days then such independent auctioneer
(the "Independent Auctioneer") as appointed by the President
of the Institute of Auctioneers in Ireland (or in the event of
him being unwilling or unable to do so the next senior person
who is so willing to do so). The determination by the
Independent Auctioneer shall be final and binding save in the
case of manifest error. If the Purchaser on determination of
the Fair Market Value by the Independent Auctioneer does not
wish to purchase the Second ▇▇▇▇▇ Property then the Purchaser
shall not be obliged to so purchase. If ▇▇. ▇▇▇▇▇ on
determination of the fair market value by the Independent
Auctioneer does not wish to sell the second ▇▇▇▇▇ Property
then ▇▇. ▇▇▇▇▇ shall not be obliged to so sell in such
circumstances but he shall not be entitled to sell the ▇▇▇▇▇
Property to any one else without first offering it to the
Purchaser on the same terms (including price) as he would
offer such property to such other person.
9.2.4 Any sale of the Second ▇▇▇▇▇ Property shall be subject to the
then current Law Society Standard Conditions of Sale and based
upon the then current conveyancing practice with regard to
purchase and sale of land.
SECTION 10 - ANNOUNCEMENTS
10.1 No announcement or information concerning this sale and purchase, the
contents of or existence of this Agreement, the negotiations leading
thereto or the circumstances in respect thereof or any ancillary matter
shall be made or released before or after Completion to the public or
to the press (international, national, provincial, local or trade) or
the suppliers, customers or employees of any of the Group Companies by
any of the parties hereto without the prior written consent of the
other parties (not to be unreasonably withheld or delayed) PROVIDED
that nothing shall restrict the making by the Purchaser of any
statement or disclosure or announcement which it may be required by law
or called for by the requirements of any recognised Stock Exchange or
prevent the Purchaser from providing any information necessary to any
tax authority in relation to the Purchaser's tax affairs and nothing
shall restrict the Vendors from providing any information necessary to
any tax authority in relation to a Vendor's tax affairs.
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SECTION 11 - FURTHER ASSURANCE AND AVAILABILITY OF INFORMATION
11.1 The Vendors shall (and shall procure insofar as it lies within their
powers of procurement that any other necessary parties shall) perform
such acts (other than stamping) and execute such documents as may be
reasonably required on or after Completion by the Purchaser for
securing to or vesting in the Purchaser (including its nominee or
nominees) the legal and beneficial ownership of the Shares in
accordance with the terms and conditions of this Agreement and assuring
to the Purchaser the rights hereby granted and shall procure the
convening of all such meetings (insofar as they can) and the giving or
passing of all such waivers (including pre-emption waivers) PROVIDED
that where any cost or expense is reasonably incurred in the completion
of such deeds and documents the costs and expenses shall (unless the
document was one which should have been delivered under this Agreement
then the party who did not deliver the document shall bear the costs of
delivering the document) be borne by the party requesting the execution
of same.
11.2 The Vendors shall cause to be made available to the Purchaser all
information in their possession or under their control which the
Purchaser may from time to time reasonably require (before or after
Completion) relating to the business and affairs of any of the Group
Companies and shall permit the Purchaser to have access to documents
containing such information and to take copies thereof.
SECTION 12 - CONTINUING OBLIGATIONS AND ASSIGNMENT
12.1 Each of the obligations, Warranties, indemnities and undertakings given
by the Vendors and the Warrantors pursuant to this Agreement ("the
Obligations"), excluding any obligation fully performed at Completion,
shall continue in full force and effect notwithstanding Completion
taking place and notwithstanding any such sale or transfer as is
referred to in Clause 12.2.
12.2 If the Shares shall be sold, transferred or charged at any time to any
Member of the ▇▇▇▇▇▇▇ River Group the benefit of each of the
Obligations shall be capable of assignment to such Member of the
▇▇▇▇▇▇▇ River Group.
SECTION 13 - COSTS
13.1 Each party to this Agreement shall pay its own costs, charges and
expenses incurred in the preparation, negotiation, completion and
implementation of this Agreement (and the documents referred to herein)
save that the Purchaser shall pay any stamp duty payable in connection
with the transfer of the Shares.
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SECTION 14 - NOTICES
14.1 Any notice or other communication to be given or served under this
Agreement shall be in writing, addressed to the relevant party and
expressed to be a notice or communication under this Agreement and may
be delivered by hand or sent by pre-paid ordinary post or fax;
in the case of the Vendors (or any of them) addressed to ▇▇. ▇▇▇▇▇▇▇▇▇
or to ▇▇. ▇▇▇▇▇ on behalf of the Vendors as follows:-
Address: In the case of ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇. ▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Address: In the case of ▇▇. ▇▇▇▇▇ at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇. ▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇.
Fax No for both: ▇▇▇▇▇▇▇▇
or to such other addresses or fax number as the addressee may have
previously substituted by notice.
and in respect of the Purchaser as follows:-
The Purchaser: ▇▇▇▇▇▇▇ River Laboratories, Inc.
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax No: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
or to such other address or fax number as the addressee may have
previously substituted by notice.
14.2 Any such notice or other communication will be deemed to have been duly
served or given:
(a) in the case of delivery, at the time of delivery;
(b) in the case of posting 48 hours after posting (and proof that the
envelope containing the notice or communication was properly
addressed, prepaid and posted will be sufficient evidence that the
notice or other communication has been duly served or given); or
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(c) in the case of fax, upon transmission, subject to the correct code
or fax number being received on the transmission report;
provided however that if a notice is not given or served during usual
business hours on a Business Day it will be deemed to be given or
served on the next following Business Day.
14.3 A party giving or serving a notice or other communication hereunder by
fax shall also give or serve a copy thereof by post but without
prejudice to the validity and effectiveness of the service by fax.
14.4 Without prejudice to any other mode or service:
(a) The Vendors irrevocably appoint ▇▇▇▇▇▇ ▇▇▇ Solicitors as agent for
service of any process or any proceedings before the courts of
Ireland in connection with this Agreement or the Deed of Indemnity
or the Environmental Indemnity or any documents referred to herein
and agree to maintain ▇▇▇▇▇▇ ▇▇▇ Solicitors as their process agent
in Ireland during the term of this Agreement and thereafter during
such period as any action may be taken thereunder; and
(b) each party agrees that failure by ▇▇▇▇▇▇ ▇▇▇, Solicitors to notify
it of the process or proceedings will not invalidate the
proceedings concerned.
14.5 The Vendors hereby irrevocably appoint ▇▇. ▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇▇▇ to
accept service of any letters, notices or other communication on their
behalf (other than proceedings as referred to in Section 14.4 above)
and to negotiate, deal with and settle any claim arising hereunder on
behalf of the Vendors or any of them including any settlement of or
negotiation of proceedings as referred to in 14.4 and the Vendors shall
not be entitled to so change the aforesaid nominees without the prior
written consent of the Purchaser and then provided all of the Vendors
agree to make the change so that there is never more than two nominees
of the Vendors under this Section 14. The Purchaser agrees that where
possible it will in serving any communication (other than proceedings
served under 14.4) on the nominees under this Section 14 also send a
copy to the Vendor or Vendors as the case may be at their address in
the FIRST SCHEDULE provided however that failure to so send a copy or
any communication to the Vendor or Vendors shall not affect in any way
service of the communication under this Section and the Vendors shall
be deemed to have received the communication once served on any of the
nominees in this Section 14 or any replacement nominees.
-40-
SECTION 15 - SEVERABILITY
15.1 If any of the provisions of this Agreement or any part thereof (or of
any of the documents referred to herein) is found by a court or other
competent authority to be void or unenforceable for any other reason
whatsoever, such provision or part shall be deemed to be deleted from
this Agreement and the remaining provisions of this Agreement shall
continue in full force and effect. Notwithstanding the foregoing the
parties shall thereupon negotiate in good faith in order to agree the
terms of a mutually satisfactory provision to be substituted for the
provision so found to be void or unenforceable.
SECTION 16 - ENTIRE AGREEMENT AND VARIATION
16.1 This Agreement (together with the documents referred to herein and
annexed hereto) constitutes the entire agreement between the parties in
relation to the transactions referred to herein or therein and
supersedes any previous agreement between the parties in relation to
such transactions. This Agreement replaces any previous agreement,
understanding or arrangement in the matter between the parties
including without limitation the non binding letter of proposal dated
16 March, 2002 which shall by mutual consent cease to have effect upon
the signing hereof and all rights and obligations thereunder (whether
accrued, accruing or contingent) shall terminate.
16.2 No variation of any of the terms of this Agreement (or of any other
documents referred to herein) shall be effective unless it is in
writing and signed by or on behalf of each of the parties hereto or
thereto. The expression "variation" shall include any variation,
supplement, deletion or replacement however effected.
SECTION 17 - GENERAL PROVISIONS
17.1 The provisions of this Agreement, insofar as the same shall not have
been performed at Completion, shall remain in full force and effect
notwithstanding Completion. Neither the termination nor the rescission
of this Agreement shall affect or prejudice any provision hereof
expressed to survive or operate in the event of the termination or
rescission of this Agreement.
17.2 Any right of rescission or termination conferred upon the Purchaser
under this Agreement shall be in addition to and without prejudice to
all other rights and remedies available to it by reason of any breach
of any provisions of this Agreement (including the Warranties) and no
delay or omission of the Purchaser in exercising any right, power or
privilege hereunder shall operate to impair such right, power or
privilege or be construed as a waiver hereof and no single or partial
exercise or non-exercise of any right, power or privilege shall in any
-41-
circumstances preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
17.3 Any liability to the Purchaser under the provisions of this Agreement
may be in whole or in part released, varied, compounded or compromised
by the Purchaser in its absolute discretion as regards any of the
Vendors or Warrantors or other party under such liability without in
any way prejudicing or affecting its rights against any other party
under the same or a like liability whether joint or several or
otherwise. A waiver by the Purchaser of any breach by any party hereto
of any of the terms provisions or conditions of this Agreement or the
acquiescence of the Purchaser in any act (whether of commission or
omission) which but for such acquiescence would be a breach as
aforesaid shall not constitute a general waiver of such term, provision
or condition or of any subsequent act contrary thereto.
17.4 This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts each of which when
executed and delivered shall constitute an original and all such
counterparts together constituting but one and the same instrument.
17.5 If any action or duty to be taken or performed under any of the
provisions hereof would, apart from the provisions of this Clause, fall
to be taken or performed on a day which is not a Business Day such
action or duty shall be taken or performed on the Business Day next
following such date.
17.6 The benefit of this Agreement, the documents referred to herein, each
of the Warranties and the Deed of Indemnity may be assigned by the
Purchaser to another Member of the ▇▇▇▇▇▇▇ River Group without the
consent of the Vendors (although the Purchaser shall inform the Vendors
in writing of any such assignment) and such member shall accordingly be
entitled to enforce each of the Agreement, the Warranties and the Deed
of Indemnity against the Warrantors and the Vendors and against all of
the other parties to any documents referred to herein or therein.
17.7 This Agreement shall enure to the benefit of and be binding upon each
party's successors and permitted assigns and personal representatives
(as the case may be) and the Vendors or the Warrantors cannot transfer
any of their obligations or rights under this Agreement to another
party without the prior written consent of the Purchaser.
SECTION 18 - GOVERNING LAW AND JURISDICTION
18.1 This Agreement and the documents to be entered into pursuant to it
shall be governed by and construed in accordance with the laws of
Ireland as the same are applicable to contracts to be
-42-
wholly performed in Ireland and the parties hereby submit to the
non-exclusive jurisdiction of the Courts of Ireland to settle any
disputes which may arise out of or in connection with this Agreement or
its performance and accordingly that any suit, action or proceedings so
arising may be brought in such courts.
IN WITNESS whereof this Agreement had been entered into the day and year first
herein WRITTEN.
-43-
FIRST SCHEDULE
PART I
(VENDORS)
--------------------------------------------------------------------------------------------------
NAME AND ADDRESS OF THE ADDRESS ORDINARY SHARES PERCENTAGE
VENDORS
--------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Shercot, 5,500 1.6%
▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 2,200 0.6%
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Shercot, 5,500 1.6%
▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Knockbridge, 33,000 9.6%
Dundalk,
Co. Louth
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 47 Yellow Walls Road, 4,400 1.3%
Malahide,
Co. Dublin
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Shercot, Rignall Road, 33,000 9.6%
Great ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇'▇▇▇▇▇▇ 21 ▇▇▇ Heights, 550 0.16%
Ballina,
Co. ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ 0.5%
Ballina
Co. Mayo.
▇▇▇▇▇▇▇ ▇'▇▇▇▇▇ ▇▇▇▇▇▇, 1,100 0.32%
Ballingar,
Co. Sligo
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Ballinahaglish, 1,100 0.32%
Ballina,
Co. Mayo
--------------------------------------------------------------------------------------------------
-44-
--------------------------------------------------------------------------------------------------
NAME AND ADDRESS OF THE ADDRESS ORDINARY SHARES PERCENTAGE
VENDORS
--------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 1,100 0.32%
Malahide,
Co. Dublin.
▇▇▇▇ ▇'▇▇▇▇▇▇ Church Street, 1,100 0.32%
Crossmolina,
Co. Mayo
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 1,100 0.32%
Aghamore,
Ballyhaunis,
Co. Mayo
▇▇▇▇ ▇▇▇▇▇▇▇▇ Comeragh, 38,500 11.2%
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇. ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 10 Gorse Cove, 60,500 17.5%
Foxford,
Co. Mayo
▇▇▇▇▇ ▇▇▇▇▇ 30 Parkview, 6,600 1.9%
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ 74 The Palms, 11,000 3.2%
▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ 7, ▇▇▇▇▇▇▇ Lawns, 11,000 3.2%
▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Erris Road, 2,200 0.6%
Crossmolina,
Co Mayo
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 64 Kents Green Lane, 3,300 1.0%
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ 4 Childers Heights, 121,000 35.0%
Ballina, -------
Co. Mayo.
345,400
--------------------------------------------------------------------------------------------------
-45-
SECOND SCHEDULE
PARTICULARS OF DIRECTORS AND SECRETARY OF THE COMPANY AND THE SUBSIDIARIES
The Directors of the Company and the Subsidiaries at the date of this Agreement
are:-
---------------------------------------------------------------------------------------------------------------
NAME ADDRESS DATE OF APPOINTMENT
---------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇. ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇. ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Knockbridge
Dundalk,
Co. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇
The Secretary of the Company and the Subsidiaries at the date of this Agreement
is
---------------------------------------------------------------------------------------------------------------
NAME ADDRESS DATE OF APPOINTMENT
---------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇/▇▇/▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇
-46-
THIRD SCHEDULE
SUBSIDIARIES
NAME: Entomology Europe Limited
REGISTERED NUMBER: 257045
REGISTERED OFFICE: Carrentrila, Ballina, Co. Mayo
DATE ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇: ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇
DIRECTORS: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SECRETARY: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
AUDITORS: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
RBK House,
Irishtown,
Athlone,
Co. Westmeath
AUTHORISED CAPITAL: euro 126,973.80 divided into 100,000 ordinary shares of
euro 1.269738 each
ISSUED CAPITAL: 100
SHAREHOLDERS: Biological Laboratories Europe Limited
No. of Shares: 100
-47-
NAME: Saothorlanna Bitheolaiocha Idirnaisiunta Teoranta
REGISTERED NUMBER: 278971
REGISTERED OFFICE: Carrentrila, Ballina, Co. Mayo
DATE AND PLACE OF INCORPORATION: 20 January, 1998, Ireland
DIRECTORS: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SECRETARY: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
AUDITORS: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
RBK House,
Irishtown,
Athlone,
Co. Westmeath
AUTHORISED CAPITAL: euro 634,869 divided into 500,000 ordinary shares of euro 1.269738
each
ISSUED CAPITAL: 300,100
SHAREHOLDERS: Biological Laboratories Europe Limited
No. of Shares: 300,100
-48-
FOURTH SCHEDULE
DEED OF INDEMNITY
-49-
FIFTH SCHEDULE
PROPERTIES
1. The Company is entitled to be registered as full owner with absolute title
of ALL THAT AND THOSE part of the lands of Beldagelly South situate in the
Barony of Erris and County of Mayo being that part of the lands in Folio
36160F of the Register County Mayo which are shown outlined in red on map
attached to Transfer dated 22nd November 2000 between Coillte Teoranta and
Biological Laboratories (Europe) Limited, the registration of which
Transfer is currently pending under Dealing Number D2001SM001600H SUBJECT
in part to and with the benefit of Lease dated 4th June 1987 and made
between the Minister for Energy of the one part & Udaras na Gaeltachta of
the other part for a term of 99 years from the first day of December 1986
AND ALSO HELD for the unexpired residue of the term of the said Lease.
2. The Company is entitled to be registered as full owner with absolute title
of ALL THAT AND THOSE the lands hereditaments and premises comprised in
Folio 3575F of the Register, County Mayo.
3. The Company is entitled to be registered as full owner with absolute title
of ALL THAT AND THOSE the lands hereditaments and premises comprised in
Folio 17477F of the Register, County Mayo.
4. The Company is entitled to be registered as full owner with absolute title
of ALL THAT AND THOSE the lands hereditaments and premises transferred by
Deed of Transfer dated 26th November 1996 between ▇▇▇▇▇▇▇ ▇▇▇▇▇ and
Biological Laboratories (Europe) Limited, and therein described as "ALL
THAT AND THOSE part of the townland of Carrowntrelia, Barony of Tirowley
and County of Mayo being part of the property registered on Folio 24768F of
the Register, County of Mayo comprising 2.741 hecatres (6.775 acres) or
thereabouts metric measure which said property is outlined in red on the
map thereof annexed hereto and thereon lettered `A'."
5. The Company is registered as full owner with possessory title of ALL THAT
AND THOSE the lands hereditaments and premises comprised in Folio 34097F of
the Register, County Mayo.
-50-
SIXTH SCHEDULE
WARRANTIES
For the avoidance of doubt, for the purposes of this SIXTH SCHEDULE all
references to the Company shall mean and include where the context so admits or
requires:-
(a) The Company; and
(b) Each Subsidiary; and
(c) the Company and its Subsidiaries.
G E N E R A L
The Warrantors hereby jointly and severally warrant:-
1. (a) All information relating to the Company and the Vendors contained in this
Agreement is true and accurate. All information in the Disclosure Letter
is true and accurate and the Vendors are not aware of any fact or matter
or circumstances not disclosed in the Disclosure Letter which renders any
such information untrue, inaccurate or misleading or the disclosure of
which might reasonably affect the willingness of the Purchaser to
purchase the Shares on the terms and conditions herein contained and so
far as such information is expressed as a matter of opinion such opinions
were when given and are at the date hereof truly and honestly held and
not given casually or recklessly.
(b) The Company is a company duly organised and validly existing under
the laws of Ireland having full corporate authority to carry on its
business as it is now being carried on and to own and operate its
properties. The certified copy of the Memorandum of Association and
the Articles of Association which has been furnished to the Purchaser
are true and complete and has embodied therein or annexed thereto a
copy of every such resolution or agreement as is referred to in
Section 143 of the Companies Act and fully set out all rights
attaching to each class of the share capital of the Company. The
Company has at all times carried on its business in accordance with
its Memorandum of Association and its Articles of Association.
(c) This Agreement constitutes and the Deed of Indemnity will when
executed constitute legal, valid and binding obligations on the
Vendors and the Warrantors in the case of the Deed of Indemnity and
the performance by the Vendors of their obligations under this
Agreement and the Warrantors in the case of the Deed of Indemnity
will not:-
(i) conflict with, or result in the breach of, or constitute a
default under any of the terms, conditions or provisions of any
agreement or investment to which the Company is a party, or any
provision of the Memorandum or Articles of Association of the
Company or any encumbrance, lease, contract, order, judgement,
award, injunction, regulation or other restriction or
obligation of any kind or character by which or to which any
asset of the Company is bound or subject;
(ii) relieve any person from any agreement or obligation to the
Company (whether contractual or otherwise), or enable any
person to determine any such obligation or any right or benefit
enjoyed by the Company or to exercise any right, whether under
an agreement with or otherwise in respect of the Company;
-51-
(iii) result in the creation, imposition, crystallisation or
enforcement of any encumbrance whatsoever on any of the assets
of the Company; or
(iv) 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.
SHARES
2. (a) The Vendors are the registered and beneficial owners of the entire issued
and allotted ordinary and voting share capital of the Company which is
fully paid up and the Vendors have the right and authority to sell and
transfer the full legal and beneficial ownership thereof to the Purchaser
on the terms set out in the Agreement and free from any charge, lien or
encumbrance of any kind and without the consent of any third party.
(b) No shares in the capital of the Company have been issued or allotted
and no transfer(s) of shares in the capital of the Company have been
registered otherwise than in accordance with the Articles of
Association of the Company for the time being in force.
(c) There are no options, rights to call for or to acquire pre-emption
rights or other agreements or arrangements (including conversion
rights) in force which call or may call for the present or future
issue, allotment or transfer of or accord to any person the right to
call for the issue, allotment or transfer of any ordinary share or
loan capital of the Company or affect the right to transfer the
registered and/or beneficial ownership of any shares in the capital
of the Company.
(d) The entire issued share capital in the Company is fully paid up and
there are no calls on any shares outstanding and the Company has not
exercised any lien over any of the issued share capital.
(e) The Company has not capitalised or agreed to capitalise any profits
or reserves or agreed to pass any resolution to do so.
(f) The Shares are not subject to any trust or other proprietary interest
in favour of any person or body corporate arising under any contract,
agreement, arrangement or transaction between any persons by
operation of law by virtue of any financial contribution direct or
indirect to the acquisition of the Shares.
(g) The Shares are not subject to any application or orders under the
Judicial Separation and Family Law Reform Act, 1989 and the sale is
not a disposal for the purpose of defeating a claim for financial
relief under that Act.
(h) No person is entitled to receive from the Company any finder's fee,
brokerage or other commission in connection with the purchase of
shares contemplated by this Agreement.
(i) None of the Vendors have pledged, charged, mortgaged or encumbered
their shares in the Company.
(j) (i) the Company has fully complied with the terms of the Agreement
dated 30 September, 1998 between ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇, D Tavernor, the Company and
Forbairt ("the Forbairt Agreement"). The rights attaching to
the Preference Shares (as defined in the
-52-
Forbairt Agreement) are as set out in the First Schedule
thereto notwithstanding the Articles of Association of the
Company;
(ii) all dividends due and payable in respect of the Preference
Shares have been fully paid and there is no outstanding
liability or arrears in respect thereof;
(iii) no offer in respect of the Preference Shares has been made
under paragraph 6 of the First Schedule to the Forbairt
Agreement.
(iv) The Redeemable Cumulative Preference Shares are owned
legally and beneficially by Forbairt.
(k) (i) the Agreement dated 2 September, 1994 between the parties
listed as "the Promoters" of the First Part, the Company
and Forfas is terminated and no party has any claim arising
thereunder and the Company has no outstanding liability
thereunder;
(ii) the 160,000 Convertible Cumulative Redeemable Preference
Shares allotted thereunder have been redeemed and cancelled
and never reissued;
(iii) The Convertible Loan Stock referred to in Section 1.2 of
the Forfas Agreement has been repaid in full and the
Company has no liability thereunder and Banque Nationale de
Paris have no claim against the Company arising thereunder;
(iv) the Convertible Redeemable Preference Shares referred to in
the Forfas Agreement were never converted to ordinary
shares.
SUBSIDIARIES
3. (a) The Company has no subsidiaries within the meaning of Section 155
of the Companies Act, 1963 other than those referred to in the
THIRD SCHEDULE and the Company is not the holder of nor the
beneficial owner of any share capital of any other company,
whether limited or unlimited and whether incorporated in Ireland
or elsewhere other than the Subsidiaries nor has it agreed to
acquire any share or loan capital of any company and the
Subsidiaries have not been subsidiaries within the beneficial
ownership of any company other than the Company.
(b) The Company never had any beneficial or any other interest in the
Share Capital of Biological Laboratories (Ballina) Limited,
company number 52235 or Biological Laboratories Limited, company
number 109325 or Seragon Limited, company number 107290 and the
Company has no interest with or business relationship with
Biological Laboratories (Ballina) Limited or Biological
Laboratories Limited, company number. 109325 or Seragon Limited,
company number 107290 and the Company has and never had any
liability for any debts, losses or liabilities of any kind of
Biological Laboratories (Ballina) Limited, Biological
Laboratories Limited or Seragon Limited.
EVENTS SINCE THE RELEVANT DATE
4. Since the Relevant Date:-
(a) the business of the Company has been carried on in the ordinary
and usual course and so as to maintain the same as a going
concern and without any interruption or alteration in the nature,
scope or manner of such business and there has not been any
-53-
adverse change in the Company's net asset position or otherwise
in its financial position, prospects or turnover and no further
liability (actual or contingent and whether disputed or not) for
Taxation (including deferred taxation) has arisen or is likely or
will arise otherwise than as a result of transactions entered
into by the Company in ordinary course of its business;
(b) save for disposals in the ordinary and proper course of business,
the assets of the Company have been and now are in the possession
or under the control of the Company;
(c) except in the ordinary course of business and in accordance with
arrangements which have been fully disclosed in the Disclosure
Letter to the Purchaser the Company has not borrowed or raised
any money;
(d) there has not been any damage, destruction or loss (whether or
not covered by insurance) affecting the shares owned by the
Vendors in the Company, the properties or assets of the Company;
(e) (i) there is not and has not been any dispute of any sort with
or in relation to any of the Company's employees; and
(ii) there is not and has not been any similar other occurrence
or event which has affected or could reasonably be expected
to so affect the value of the shares owned by the Vendors in
the Company, the properties or business of the Company;
(f) the Company has not acquired any assets other than in the normal
course of business nor has it acquired any assets of which the
cost, or the value of the cost of which, exceeded euro 30,000 in
the case of any one such asset or euro 100,000 in the case of any
number of such assets;]
(g) no dividends or other distributions of profits, capital or income
have been declared, made or paid by the Company to its
shareholders and other than in the ordinary course of business or
fluctuations in overdrawn current accounts with bankers no loan
or other indebtedness or liability or subordinated loan capital
or loan stock of the Company has been repaid in whole or in part
or has become due to be repaid, paid or discharged before the
date on which it was due to be repaid, paid or discharged under
the terms on which it was borrowed or incurred or liable (with or
without notice or lapse of time or both) to be declared so due;
(i) no share or subordinated loan capital or loan stock has been
issued or agreed to be issued by the Company;
(j) the Company has not created, extended, granted or issued or
agreed to create, extend, grant or issue any lease, tenancy,
licence, mortgage, charge, lien, encumbrance, option, debenture
or other security;
(k) the Company has not made any unusual augmentation in stock nor
written up any fixed assets or stock;
(l) save for such resolution or resolutions as may be necessary so as
to implement the terms and provisions of this Agreement, the
Company has not passed any resolution by its members in general
meeting or made any alteration to the provisions of its
Memorandum of Association or Articles of Association;
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(m) the Company has not undertaken or authorised any capital
commitment or (other than in the normal ordinary course of
business) disposed or agreed to dispose of any capital asset;
(n) the Company has not written off any debts;
(o) 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 the Company or call in any money before the normal due
date thereof;
(p) no employee or officer of the Company holding a position of
material importance to the management of the Company's business
has given or received notice terminating his employment and the
Warrantors are not aware of any reason why any employee or
officer of managerial position may give notice terminating his or
her employment;
(q) no changes to the terms of employment or engagement of any
director, employee or consultant have been proposed or made
whether by the Company or any third party (or where employment or
retention in the case of any consultant commenced subsequent to
the Relevant Date, then since that date);
(r) the Company has not entered into any transactions or assumed or
incurred any material liabilities (including contingent
liabilities) or made any material payment otherwise than in the
ordinary course of carrying on its business and "material
liability" for the purposes of this clause (r) shall be a
liability of euro 50,000 or more in monetary terms;
(s) the Company's profits have not been affected to a material extent
by inconsistencies in accounting practices, by the inclusion of
non-recurring items of income or expenditure, by transactions
entered into otherwise than in normal commercial terms or by any
other factors;
(t) the Company has not entered into any unusual, long-term or
material onerous commitments or contracts;
(u) its business has not been materially or 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 there are no facts which are likely to give rise to any such
effects. The Warrantors are not aware of any reason why any of
the Company's top ten customers would terminate their
relationship with the Company and the sale and purchase of the
Shares will not lead to a termination by any customer of its
arrangements with the Company;
(v) it has not made or received any surrender relating to group
relief or the benefit of advance corporation tax;
(w) it has paid its creditors in accordance with their respective
credit terms;
(x) the Company has not received any notification of any kind from
the Revenue Commissioners affecting in any way the company's
entitlement to the 10% Corporation Tax rate;
(y) No animal rights groups or groups with similar activities have
had any contact with the Company and the Vendors are not aware of
any reason why such groups may be about to take any action
against the Company.
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BORROWINGS
5. (a) The amounts borrowed by the Company (as determined in accordance with
the provisions of the relevant instrument) do not exceed any limitation
on borrowings contained in its Articles of Association or in any
debenture or other deed or document or legislative provision binding
upon it and the Company does not have as outstanding any loan capital,
nor has it factored any of its debts, nor engaged in financing of a
type which would not require to be shown or reflected in audited
accounts or borrowed any money which it has not repaid, save for those
borrowings disclosed in the Disclosure Letter. The total amount of the
Company's indebtedness does not exceed euro 170,000.
(b) Save with regard to bank borrowings which do not exceed the
overdraft or loan facilities available to the Company (particulars
of which have been disclosed in the Disclosure Letter) the Company
has no actual or contingent liability of any kind to any person or
to any governmental or local authority in respect of borrowings;
(c) The amounts and other material particulars of all loans,
overdrafts, acceptance credits or other financial facilities,
guarantees, mortgages, charges and debentures which have been given
made or incurred by or assigned to or vested in the Company and are
at the date hereof outstanding are accurately set out in the
Disclosure Letter and are true and accurate in all respects.
(d) The Company has no bank accounts or deposit accounts other than
those disclosed in the Disclosure Letter showing the position as of
the Business Day prior to the date hereof in relation to the credit
and debit balances thereon and since such statements there have not
been any payments out of any such accounts save for routine
payments in the ordinary course of business the aggregate of which
would not exceed euro ] and there are no amounts due to third
parties or creditors in excess of a total aggregate amount of euro
(e) As a result of the acquisition of the Shares by the Purchaser or
any other thing contemplated by this Agreement none of the
financial facilities available to the Company may be terminated or
mature prior to its stated date of maturity.
OWNERSHIP OF ASSETS - STOCK IN TRADE
6. (a) Except for assets disposed of by the Company in the ordinary course
of business the Company is the owner of and has good and marketable
title to all assets included in the Accounts and to the animal
stock which is bred by the Company and all such assets comprise all
the assets, property and rights which the Company uses for the
purpose of or in connection with its business and are in the case
of plant, machinery, vehicles, office equipment and stock-in-trade
in a good state of repair and condition (fair wear and tear
excepted) and in satisfactory working order and all such plant,
machinery, vehicles, equipment and stock in trade are capable of
being efficiently and properly used in connection with the business
of the Company and none is dangerous, unsuitable or in need of
removal or replacement and all animal stock is in good health and
appropriate for use in the business and none is incapable of being
used in the Business and in particular either in laboratory testing
or veterinary trials.
(b) The assets included in the Accounts (including all fixed and
moveable plant, machinery, vehicles, equipment and stock in trade)
and to the animal stock which is bred by the Company and all such
assets and all assets acquired since the Relevant Date but less all
assets disposed of since the Relevant Date:-
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(i) are free from any hire purchase, credit sale or rental
agreement, lien, option, mortgage, charge, lease, tenancy,
licence, covenant, condition, agreement or other encumbrance
whether relating to the asset itself or the use thereof;
(ii) are in the case of such parts of the Properties as comprise
leasehold property and leasehold buildings in a good state of
repair and decoration which (where appropriate) fully comply
with the Company's obligations contained in the instruments
by virtue of which the Company holds the same or is
interested therein; and
(iii) are easily and readily accessible to the Company when
required by the Company.
(c) All the assets listed in the Accounts as at the Relevant Date
and the animal stock which is bred by the Company and all
such assets are the property of the Company free from all
encumbrances of any kind.
(d) The stock of animal stock now held are not excessive and are
adequate in relation to the current trading requirements of
the business of the Company; and none is unmarketable or
inappropriate or of limited value in relation to the current
business of the Company; and to the best of the belief of the
Vendors no contracts are outstanding which are likely to
change this.
(e) The Company has not purchased or agreed to purchase any
stock, goods or materials on terms that property in it does
not pass until full payment is made or all indebtedness
discharged.
(f) All items and documents delivered to the Company on the
acquisition or hire of any asset are in the possession of the
Company and where necessary any relevant documentation which
requires to be renewed and updated so as to ensure the
continued efficient and lawful operation of any such assets
has at all times been maintained in a proper way.
INSURANCE
7. Details of all existing insurance policies maintained by the Company
are set out in APPENDIX ONE hereto copies of which are attached to the
Disclosure Letter. All the assets of the Company which are of an
insurable nature have at all material times been and are at the date of
this Agreement insured to the full replacement or reinstatement value
thereof against fire and other risks normally insured against by
companies carrying on the same business as that carried on by the
Company or owning property of a similar nature and the Company has at
all material times been and is at the date of this Agreement adequately
covered against accident, third party injury, damage, consequential
loss, professional negligence and other risks normally covered by
insurance by such companies. In respect of all such insurances:-
(i) all premiums have been duly paid to date;
(ii) all the policies are in full force and effect and are not
voidable on account of any act, omission or non-disclosure on the
part of the insured party and nothing has been done or omitted to
be done which is likely to result in an increase in premium; and
(iii) no claim is outstanding or may be made under any of the said
policies and no circumstances exist which are likely to give rise
to any claim.
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EMPLOYMENT
8. (a) Full particulars of the officers and employees of the Company,
their date of birth, date of commencement of service, job
description, their respective rates of pay and other benefits
provided or which the Company is bound to provide (whether now or
in the future) to each officer and employee of the Company and full
particulars of all existing contracts of service with the directors
or employees of the Company and of all consultancy agreements with
the Company are as specified in APPENDIX TWO hereto and are true
and complete and include particulars of all profit sharing,
incentive and bonus arrangements to which the Company is a party
whether legally binding on the Company or not.
(b) Save to the extent (if any) to which provision or allowance has
been specifically made in the Balance Sheet:-
(i) no liability has been incurred by the Company for breach of
any contract of service or for services, for redundancy
payments or for compensation for wrongful dismissal or unfair
dismissal or for failure to comply with any order for the
reinstatement or re-engagement of any employee; and
(ii) no gratuitous payment has been made or promised by the
Company in connection with the actual or proposed termination
or suspension of employment or variation of any contract of
employment of any present or former director or employee.
(c) There are no schemes or arrangements in operation by or in relation
to the Company whereunder any officer or employee of the Company or
any other person is entitled to a commission, remuneration, bonus
or other payment of any sort calculated by reference to the whole
or part of the turnover, profits or sales of the Company.
(d) The Company has not in existence nor has it promised to introduce
any bonus scheme, incentive scheme, share incentive scheme, share
option scheme or profit sharing scheme for all or any of its
officers or employees or former employees.
(e) The Company has, in relation to each of its officers and employees
(and so far as is relevant to each of its former employees)
complied with:-
(i) all obligations imposed on it by any statute, statutory
regulations, code of conduct and practice relevant to the
relations between it and its employees or any trade union and
has maintained current, adequate and suitable records
regarding the services of all such officers and employees
(including former employees);
(ii) all collective agreements, customs and practices for the time
being dealing with such relations or the conditions of
service of its employees;
(iii) all relevant orders and awards made under any relevant
statute, regulation or code of conduct or practice affecting
the conditions of service of its employees; and
(iv) all obligations imposed by the European Communities
(Safeguarding of Employee Rights on the Transfer of
Undertakings) Regulations, 1980 and European Communities
(Safeguarding of Employees Rights on Transfer of
Undertakings) (Amendment) Regulations 2000 in relation to any
sale,
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purchase or other transfer coming within the terms of the
aforesaid regulations.
(f) No moneys or benefits other than in respect of remuneration or
emoluments of employment are payable to or for the benefit of or
are receivable by any employee or officer of the Company and other
than as detailed in Appendix Two hereto.
(g) There are no amounts owing to any present or former directors or
employees of the Company other than remuneration accrued for not
more than one month or for reimbursement of business expenses.
(h) There are no claims pending or threatened against the Company:-
(i) by an employee or ▇▇▇▇▇▇▇ or third party in respect of an
accident or injury which is not fully covered by the
insurance policies disclosed in APPENDIX ONE hereto; or
(ii) by an employee or director in relation to his terms and
conditions of employment or appointment.
(i) Every officer and employee of the Company who should have been
treated for tax purposes as employed by the Company has been so
treated and disclosure has been made of all relevant correspondence
with the Revenue Commissioners and other relevant government
agencies.
(j) The Company has complied with Section 14 of the Unfair Dismissals
Act, 1977
(k) Prior to Completion:-
(i) all pay related social insurance contributions (both
employer's and employees') due and payable by the Company
will have been duly paid;
(ii) all amounts due to the Revenue Commissioners in respect of
deductions which have been made or which should have been
made by the Company in accordance with PAYE regulations from
time to time in force have been deducted and have been paid
over to the Revenue Commissioners so that the Company will
not have any liability in respect thereof; and
(iii) all certificates relating to matters referred to in this
paragraph which by law are required to be given by employers
to employees (as defined) have been given to all employees of
the Company and are true and accurate.
(l) There are not in existence any contracts of service with directors
or employees of the Company nor any consultancy agreements with the
Company which cannot be terminated by three months notice or less
or (where not reduced to writing) by reasonable notice without
giving rise to any claim for damages or compensation (other than a
statutory redundancy payment or statutory compensation for unfair
dismissal).
(m) Within a period of one year preceding the date of this Agreement
the Company has not given notice of any redundancies to the
Minister for Enterprise & Employment or started consultations with
any trade union or unions under the provisions of Part II of the
Protection of Employment Act, 1977 or Regulation 7 of the European
Communities (Safeguarding of
-59-
Employees' Rights on the Transfer of Undertakings) Regulations 1980
as amended by the European Communities (Safeguarding of Employees
Rights on Transfer of Undertakings) (Amendment) Regulations 2000
and the Company has not failed to comply with any such obligation
under the said Part II or Regulation 7 as amended.
(n) No employee of the Company is assigned or employed wholly or mainly
outside Ireland.
INDUSTRIAL RELATIONS
9. (a) The Company is not a party to any agreement with a trade union,
staff association or other similar organisation other than those
referred to in the Disclosure Letter and the Disclosure Letter
contains details of all collective bargaining and procedural and
other agreements or arrangements in existence relating to or
relevant to any of the employees of the Company or current
negotiations with any trade union, staff association or other
organisation formed for a similar purpose which might affect the
terms and conditions of employment of any employees.
(b) The Company is not in any industrial dispute with any trade union
or any other organisation and there is no such dispute pending,
anticipated or threatened and the Vendors are not aware of any
claim made on behalf of any employees of the Company by any trade
union or other organisation. The Company has complied with all
recommendations made by Industrial Relations Officers of the Labour
Relations Commission, by Equality Officers or by the Labour Court.
(c) The Company is up to date on all wage agreements and there is no
material liability in respect of back pay which has not been
reflected in the Accounts.
PENSIONS
10. (a) Full details of all retirement benefit schemes, death benefit
schemes disability benefit schemes and sickness benefit schemes
operated by the Company (in this paragraph 10 together called the
"Scheme") are set out in APPENDIX THREE hereto.
(b) All amounts due to the Trustees of the Scheme or to any insurance
company in connection therewith and all contributions due by the
Company have been paid.
(c) The Company has fulfilled all its obligations in relation to the
Scheme and the Scheme is a defined contribution scheme.
(d) All lump sum death in service benefits (other than any refund of
contributions) disability benefits which may be payable under the
Scheme are fully insured.
(e) No increase in contributions to any of the Schemes has been
recommended in respect of any person who is employed, or deemed to
be or treated as employed, by the Company at the date hereof and in
respect of whom contributions are paid under the Schemes and no
power to augment benefits nor any special discretion has been
exercised under the Schemes except as disclosed in writing to the
Purchaser and as set out in APPENDIX THREE. ALL CONTRIBUTIONS PAID
BY THE COMPANY TO THE SCHEME ARE AS DETAILED IN APPENDIX TWO AND
THE COMPANY HAS NO OTHER OBLIGATION TO MAKE ANY OTHER
CONTRIBUTIONS. NO NOTICES, STATEMENT OR OTHER DOCUMENTS HAVE BEEN
ISSUED IN RESPECT OF THE SCHEME WHICH WOULD LEAD A MEMBER OR
POTENTIAL MEMBER TO BELIEVE THE SCHEME WAS NOT A DEFINED
CONTRIBUTION SCHEME OR THAT THE AMOUNT WHICH THE
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COMPANY IS LIABLE TO CONTRIBUTE IS MORE THAN 5% OF SALARY SAVE FOR
THOSE CONTRIBUTIONS OVER 5% IN RESPECT OF THOSE INDIVIDUALS
DISCLOSED IN THE DISCLOSURE LETTER.
(f) The Scheme conforms with all applicable laws, regulations and
requirements and the Scheme has been administered in accordance
with its trusts, powers and provisions.
(g) No claim has been made against the trustees or administrator of the
Scheme or any of them or against any other person whom the Company
is liable to indemnify or compensate in respect of any act, event,
omission or other matter arising out of or in connection with the
Scheme or any of them and the Vendors are not aware of any
circumstances which may give rise to any such claim.
(h) Except as disclosed in writing to the Purchaser as set out in
APPENDIX THREE hereto there is no claim for nor is the Company
under any legal or moral obligation to pay either now or at any
time in the future any pension or make any other payment after
death or retirement or in respect of disability or sickness or
otherwise to provide any benefit to or in respect of any person and
no such pension or payment or benefit is now being paid. Except as
disclosed in writing to the Purchaser as set out in APPENDIX THREE
hereto there are no ex-gratia pensions or other benefits currently
or prospectively payable by the Company in respect of any person.
(i) The Scheme is (where appropriate) an exempt approved scheme within
the meaning of the Taxes Consolidation Act 1977 as amended and
there is no reason why such exempt approval should be withdrawn.
(j) The Vendors are not actually aware of any claim or contingent
liability which will arise as a result of or in connection with any
previous pension schemes of the Company.
(k) All employees who have been receiving sick pay from the Company for
a period in excess of one calendar month as at the date of this
Agreement are listed in APPENDIX THREE hereto.
(l) All actuarial consultancy legal audit investment management and
other fees charges or expenses in respect of the Schemes payable by
the Company have been paid.
(m) All current or former employees who are or were eligible for
membership of the Scheme were or are included in that Scheme or
were offered membership and refused to join.
(n) So far as the Vendors are aware, there are no disputes,
arbitration, litigation or proceedings pending or threatened
against either the Company or the Trustees in respect of the terms
or provisions of the Scheme.
(o) True copies of the trust deeds and rules constituting and governing
the Scheme have been delivered to the Purchaser and except as may
be expressed otherwise herein such documents are complete and up to
date and satisfactory to ensure continued treatment of the Scheme
as an exempt approved scheme as aforesaid.
(p) True copies of all explanatory booklets and announcements and other
material communications to employees relating to the Scheme has
been delivered to the Purchaser and the Company has no obligation
under the Scheme in respect of any present or former employee or
director or any dependent of any of them other than under the
documents referred to in the above paragraphs.
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LITIGATION
11. (a) The Company is not engaged in any litigation or arbitration
proceedings or any industrial or trade dispute proceedings as
plaintiff, accused or defendant and there are no such proceedings
pending or threatened either by or against the Company, no
injunction has been granted against the Company and there are no
facts known to the Vendors after due and proper enquiry which are
likely to give rise to any litigation and the Company is not
subject to any order or judgement given by any Court and has not
been a party to any undertaking or assurance given to any Court or
governmental agency.
(b) Neither the Company nor any of its directors, employees or persons
for whom it is vicariously liable is or has been engaged in any
litigation, prosecution, arbitration or other legal proceedings or
in any dispute with the Revenue Commissioners, the Commissioners of
Customs and Excise or any other authority or body of persons (in
the case of directors, employees or such persons as aforesaid only
so far as the Company may be vicariously liable) and there are no
circumstances known to the Vendors or to the Company likely to give
rise to the same or likely to entitle the Company to make any claim
against any person.
(c) The Company has not committed any criminal, illegal or unlawful act
which is likely to affect the Company's ability to carry on its
activities as heretofore or its financial position or
profitability.
WINDING-UP
12. (a) No order has been made or petition presented, resolution passed or
meeting convened or held for the winding-up of the Company; no
distress, execution or other process has been levied on any asset
of the Company; no receiver or examiner has been appointed or could
be appointed by any person over its business or assets or any part
thereof and there is no unfulfilled or unsatisfied judgement or
court order outstanding against the Company.
(b) The Company is not insolvent or unable to pay its debts within the
meaning of Section 214 of the Companies Act, 1963 nor has the
Company stopped or suspended payment of its debts nor has the
Company sought from its creditors significant extension of time for
payment of its debts.
(c) No composition in satisfaction of the debts of the Company or
scheme of arrangement of its affairs or compromise or arrangement
between the Company and its creditors and/or members or any class
of its creditors and/or members, has been proposed, sanctioned or
approved.
(d) No distress, distraint, charging order, garnishee order, execution
or other process has been levied or applied for in respect of the
whole or any part of any of the property, assets and/or undertaking
of the Company.
(e) No event has occurred causing, or which upon intervention or notice
by any third party may cause any floating charge created by the
Company to crystallise or any charge enacted by it to become
enforceable nor has any such crystallisation occurred or is such
enforcement in process.
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CONTRACTS AND COMMITMENTS
13. (a) No guarantees, indemnities, mortgages, charges, debentures, liens,
encumbrances or other security interests, have been given or made
or incurred by or assigned to or vested in the Company other than
as set out in the Disclosure Letter
(b) The Company is not a party to any agency, distribution, marketing,
purchasing, manufacturing, licensing agreement or arrangement, or
any restrictive trading or other agreement or arrangement pursuant
to which any part of its business is carried on, or which in any
way restricts its freedom to carry on the whole or any part of its
business in any part of the world in such manner as it thinks fit.
(c) The Company has not given a power of attorney or any other
authority (express, implied or ostensible) which is still
outstanding or effective to any person to enter into any contract
or commitment or do anything on its behalf, other than any
authority to employees to enter into routine trading contracts in
the normal course of their duties.
(d) The Company is not nor has it agreed to become a party to, nor is
any asset of the Company affected by:-
(i) any agreement or arrangement which is liable to be terminated
by another party or under which rights of any person
(including without limitation, any right to demand payment of
any indebtedness of the Company or to enforce any security
given by the Company) are liable to arise or be affected as a
result of any change in the control management and
shareholding of the Company pursuant to the terms of this
Agreement (nor is the Company liable to be required to give
any transfer notice or similar notice or take any action to
its disadvantage as a result of such change); or
(ii) any joint venture, consortium or partnership (including a
limited partnership) or other unincorporated association, or
any agreement or arrangement (whether verbal or written) for
participating with others in any business sharing commissions
or other income; or
(iii) any trade association; or
(iv) any agreement or arrangement which cannot be terminated by
the Company on less than three months' notice without payment
of compensation.
(e) (i) Full details of all grants, subsidies, or financial
assistance applied for or received by the Company from any
governmental department or agency or any local or other
authority are set out in the Disclosure Letter together with
details of the Grant Agreements, the amount of the Grants
given, the amount undrawn and any liability to repay same;
and
(ii) the Company has not done or omitted to do any act or thing
which could result in all or any part of any investment
grant, employment subsidy or other similar payment made, or
due to be made, to it becoming payable or being forfeited or
withheld in whole or in part.
(f) The Company is not under any obligation or a party to any contract
which cannot readily be fulfilled or performed by it on time and
without undue or unusual expenditure of money, effort or personnel.
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(g) The Company is not a party to any contract or arrangement which
involves the payment by it of amounts determined by reference to
fluctuations in the index of prices or any other index or in the
rate of exchange for any currency.
(h) The Vendors do not have any knowledge of the invalidity of, or the
grounds for rescission, avoidance or repudiation of, any agreement
or customer arrangement to which the Company is a party and the
Company has not received notice of any intention to terminate any
such agreement and no lender to the Company has taken any steps to
accelerate the maturity of any loan to the Company or to demand
repayment thereof with or without the giving of notice or the lapse
of time or satisfaction of any condition, is or may be entitled to
do the same.
(i) The Company has not entered into any transaction for the supply of
goods or services to the Company by (or by the Company to) the
Vendors or the Directors or employees of the Company or any of them
and the Company is not dependent upon any one person or group of
persons for more than 10% by value (averaged over any period of
twelve months) of its business or supplies upon any one source.
(j) The Company has not -
(i) issued any tender offer or quotation at any time which is or
will become capable of giving rise to a contract by an order
or acceptance by another party or parties save in the
ordinary course of business and on terms calculated to yield
a gross profit margin consistent with the prudent carrying on
of the business of the Company; or
(ii) omitted to do anything required or permitted to be done by
the Company necessary for the protection of its title to or
for the enforcement or the preservation of any order or
priority in respect of any property or rights owned by it, or
(iii) entered into any transaction which is still executory and
which is unenforceable by the Company by reason of the
transaction being voidable at the instances of any other
party or ultra ▇▇▇▇▇, void or illegal.
(k) There is not outstanding and the Company has no continuing
liability, commitment or obligation under or in respect of:-
(i) any contract of an unusual or onerous or long term nature; or
(ii) any obligation on the part of the Company to pay any royalty
or other similar periodic sums in the nature of royalties; or
(iii) any agreement for the hire, rent, hire purchase or purchase
on deferred terms by the Company of any asset (other than the
Properties) excluding hiring and leases for periods of less
than one month and agreements in respect of which the annual
rental or payment does not exceed euro 20,000.
(l) No substantial supplier or customer of the Company has ceased or is
likely to cease trade with the Company within the next 12 months
and the Company has received no notice of an intention to do so and
details of such substantial suppliers and customers have been
disclosed in the Disclosure Letter. For the purpose of this
sub-paragraph (l) a substantial supplier shall mean any supplier
who supplies in excess of 10% of the purchases of the Company. Full
details of the Company's terms and conditions of trade with its
substantial customers are detailed in the Disclosure Letter and
there is
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no provision in the Company's terms and conditions with such
customers that would entitle such customers to terminate their
trading relationship with the Company as a result of the change in
control of the Company and the purchase of the Shares by the
Purchaser.
(m) The Company has no liability for and nothing has been brought to
the Vendors or the Company's attention whereby the Company may
become liable to any of their customers or third parties for
results of any tests, trials or research conducted by the Company
for any of its customers on products which relate to or in any way
are concerned with or will be used in human health.
(n) The Company is not a party to any contract whereby its liability
thereunder will or could exceed the amount of the Company received
in payment thereunder.
(o) The Company has not done or omitted to do anything which has
prejudicially affected its goodwill.
(p) There has been no breach of any warranty, term, condition or
undertaking or any false declaration made by the Company or any
officer employee or agent of the Company in connection with any
contract made by the Company and all of the Company employees sign
confidentiality agreements in respect of all work undertaken by
them as employees of the Company.
(q) The Company is not nor has it been party to any transaction with
any third party or parties which in the event of any such third
party going into liquidation, receivership or an examination or a
bankruptcy order being made in relation to it or him would
constitute (in whole or in part) a transaction at an undervalue, a
fraudulent preference, an invalid floating charge or part of a
general assignment of debts which could be set aside against the
company or person concerned.
(r) No party to any agreement with or under an obligation to the
Company is in default under it, being a default which would be
material in the context of its financial or trading position; and
there are no circumstances likely to give rise to such a default.
(s) There is not now outstanding any contract or arrangement to which
the Company is a party and which the Vendors or any director of the
Company is or has been interested, whether directly or indirectly.
(t) Maintenance contracts are in full force and effect in respect of
assets of the Company which it is normal or prudent to have
maintained by independent or specialist contractors and in respect
of all assets which the Company is obliged to maintain or repair
under any leasing or similar agreement; and all those assets have
been regularly maintained to a good technical standard and in
accordance with safety regulations usually observed in relation to
assets of that description and in accordance with the terms and
conditions of any applicable leasing or similar agreement.
(u) The Company has not at any time prior to Completion sold or
otherwise disposed of any shares or assets in circumstances such
that it is, or may be, still subject to any liability (whether
contingent or otherwise) under any representation, warranty or
indemnity given or agreed to be given on or in connection with such
sale or disposal.
(v) In relation to any property or assets held by the Company under any
hire purchase, conditional sale, chattel leasing or retention of
title agreement or otherwise belonging to a third party, no event
has occurred which entitles, or which upon intervention or
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notice by the third party may entitle the third party to re-possess
the property or assets concerned or terminate the agreement or any
licence in respect of the same.
(w) The Company has not manufactured, sold or supplied services which
are or were or will become in any material respect, defective or
unreliable or which do not comply in any material respect with any
warranties or representations expressly or impliedly made by it or
with all applicable regulations, standards and requirements.
(x) The Company is not subject to any liability or obligation (save as
may be implied by law) to change, alter, re-execute or otherwise do
or not do anything in respect of any services or tests or trials
that have been or are after the date of this Agreement agreed to be
delivered by it.
(y) Full details of all of the Company's Terms and Conditions with its
customers are set out in detail in the Disclosure Letter.
LICENCES
14.1 All necessary licences (including statutory licences and licences to
use copyrights, patents and related rights), permits, consents and
authorities (public and private) required by the Company under statute
or otherwise have been obtained by the Company to enable the Company to
carry on the whole and every part of its business effectively and
lawfully in the places and in the manner in which such business is now
carried on including but without prejudice to the generality of the
foregoing all licences, consents, registrations and approvals required
by the Company under the Cruelty to Animals Act, 1876, European
Communities (Amendment of Cruelty to Animals Act, 1876) Regulations
1994 (SI 17/1994), Animals Remedies Act, 1956 and Animal Remedies ▇▇▇
▇▇▇▇, Animal Remedies Regulations 1996 SI 179/1996, European
Communities Animal Remedies and Medicated Feeding Stuffs) Regulations
SI 176/1994, European Communities (Veterinary Medicinal Products)
Regulations 1986 (SI 22/1986), European Communities (Disposal
Processing and Placing on the Market of Animals By-Products)
Regulations 1994 (SI 257/1994), European Communities (Control of
Veterinary Medicinal Products and their Residues) Regulations 1990 SI
171/1990; Medical Preparations (Licensing of Manufacture) Regulations
1993 (SI 40/1993), Medicinal Products (Licensing and Sale) Regulations
1998 (SI 142/1998) Radiological Protection Act 1991 and any regulations
made thereunder, Animals Act, 1985, and all such licences, consents,
permits and authorities are valid and subsisting and all conditions
applicable to any such licence, consent, (including any planning
consent) permit or authority have been complied with and the Vendors
know of no reason why any of them should be suspended cancelled refused
or revoked and none of the licences are or will be affected by a change
in control of the Company.
14.2 All tests and practices carried on by the Company comply with the
principles of good laboratory practice (GLP) in accordance with Council
directive 1987/18/ EEC as amended by Directive 1999/11/EC, Council
Directive 1988/320/EEC as amended by 1999/12/EC and the European
Communities (Good Laboratory Practice) Regulations 1991 as amended by
SI 294/1999. All of the Company's laboratories have had inspections and
audits carried out as required under the aforesaid Directives and
Regulations and the Company has not failed to obtain any certificate
clearance or other authorisation unqualified and as required under the
aforesaid Regulation and in particular the Company has an up to date
Certificate from the National Accreditation Board (NAB) with regard to
compliance by all of its laboratories as being compliant with Good
Laboratory Practice.
14.3 All of the Company's premises, business practices and other relevant
standards substantially comply with all legal requirements in all
countries in which the Company carries on business
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or where the results of those practices, standards or tests are used or
are used by the Company's customers.
INTELLECTUAL PROPERTY RIGHTS, TRADE SECRETS AND MARKETING
15. (a) All patents, registered designs, know-how, trade secrets,
copyright, trade marks and similar intellectual property rights
used in the Company's Business (whether registered or not) and all
pending applications therefor are (or where appropriate in the case
of any pending applications will be):-
(i) legally and beneficially vested in the Company;
(ii) valid and enforceable;
(iii) not being infringed or attacked or opposed by any person;
(iv) not subject to any licence or authority in favour of another;
and
(v) in the case of such rights as are registered or the subject
of applications for registration, disclosed fully in the
Disclosure Letter.
(b) The processes employed and the products and services dealt in by
the Company do not use, embody or infringe any patents, registered
designs, know-how or trade secrets copyrights trade marks or
similar intellectual property rights (whether registered or not)
other than:-
(i) those belonging to the Company and referred to in paragraph
(a) above, or
(ii) those in respect of which licences have been obtained and are
currently in force, and are detailed in the Disclosure Letter
and no claims have been made and no applications are pending
of which the Vendors are aware which if pursued or granted
might be material thereto.
(c) The Company has not disclosed or permitted to be disclosed or
undertaken or arranged to disclose to any person any of its
know-how, secrets, confidential information, price lists or lists
of customers or suppliers.
(d) The know how, secrets, confidential information and lists of
customers and suppliers of the Company are all adequately
documented.
(e) The Company is not a party to any secrecy agreement or agreement
which may restrict the use or disclosure of information forming
part of the know-how or Intellectual Property.
(f) All advertising and marketing materials and methods used by the
Company comply with all legal requirements and other relevant
standards and codes of practice in all countries in which those
materials or methods are used by the Company and are not defamatory
and there are no grounds on which such materials could be
challenged for any reason whatsoever including without limitation
defamation, trade libel or any other analogous law.
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DOCUMENTS BOOKS AND RECORDS
16. (a) All documents relating to the Company required to be filed with the
Registrar of Companies pursuant to the Companies Acts or any other
statute or instrument in force have been duly filed and are correct
in all respects.
(b) The register of members of the Company accurately and sufficiently
records the members from time to time of the Company and the
Company has received no notice of any intended application or
proceedings to rectify the said register.
(c) All proper and necessary books of account, minute books, registers
and records have been maintained by the Company, are in its
possession or under its control and are up to date and accurate in
all respects and contain accurate information in accordance with
generally accepted accounting practices and principles relating to
all transactions to which the Company has been a party.
(d) All title deeds relating to the assets of the Company and an
executed copy of all agreements to which the Company is a party,
and the original copies of all other documents which are owned by
or which ought to be in the possession of the Company are in its
possession or under its control.
(e) Each shareholder of the Company who is, or has at any time been
required to notify the Company of its interests in any shares in or
debentures of the Company pursuant to Section 53 of the Companies
Act, 1990 has duly complied with its obligations under Part IV
Chapter I of the said Act.
STAMPING
17. All documents which in any way affect the right, title or interest of
the Company in or to any of its property, undertaking or assets, or to
which the Company is a party and which attract stamp duty have been
duly stamped within the requisite period for stamping and no document
belonging to the Company which is subject to ad valorem stamp duty is
unstamped or insufficiently stamped.
COMPLIANCE WITH LAWS
18. (a) The Company has conducted its business substantially in accordance
with all applicable laws, regulations, bye-laws, orders and safety
standards in Ireland and in any relevant foreign country and there
is not and there has not been any violation of or default with
respect to, any statute, regulation, order, decree or judgement of
any Court or any governmental agency or local or other authority of
Ireland or other relevant foreign country which in consequence
whereof an unfavourable judgement decision, ruling or finding would
or could so far as the Vendors are aware have a material effect
upon the assets or business or financial condition of the Company
nor has the Company or so far as the Vendors are aware any of its
officers committed any breach of any provision of its articles of
association or of any trust deed, agreement or licence to which it
is a party or of any covenant, mortgage, charge or debenture given
by it.
(b) Neither the Company nor so far as the Vendors are aware any of any
of its officers, agents or employees during the course of their
duties in relation to the Company has committed or omitted to do
any act or thing the commission or omission of which is or could be
in contravention of any act, order, regulation or the like (whether
in Ireland or elsewhere) giving rise to any fine, penalty or
default proceedings or other liability on its part.
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COMPUTER
19. (a) The Company has in force maintenance contracts for all items of
computer hardware (including operating systems) which it uses and
there is no reason to believe that those maintenance contracts will
not be renewed by the other contracting party upon their expiry (if
so required by the Company) upon substantially similar terms to
those now applicable.
(b) The Company has not suffered any failures or breakdowns of the
computer hardware or software which it used in the year preceding
the date of this Agreement.
(c) The Company has operated and used all items of computer hardware
used by it in accordance with the manufacturers recommendations
including (without limitation) any recommendations as to
environmental condition and power supply.
(d) All computer software (including programs held on silicon chips,
disks and any other media, manuals and operator guides) used by the
Company is either owned by the Company or held by it on licence the
terms of which have been disclosed in the Disclosure Letter.
(e) The Company owns and has access to all documents and information
(including source codes) which might be required to enable the
Company to adapt, modify or improve such software economically and
has the right to make such adaptations, modifications or
improvements without the consent of any third party.
(f) The Company has in force software support contracts for all current
software licences held by the Company and there is no reason to
believe that those contracts will not be renewed by the other
contracting party upon their expiry (if so required by the Company)
upon substantially similar terms to those now applicable.
(g) The Company has not suffered any failures or bugs in or breakdown
of such software (except arising from operator error not based on
inadequate manuals) in the year preceding the date of this
Agreement.
(h) The Company has and is entitled to have back up copies of all
software used by the Company which copies are to date fit for
immediate use and stored in a secure place separate from the
original copies of such software themselves.
(i) The Company has not altered or modified any software held by it on
licence or used by it whether with or without the consent of the
owner or manufacturers thereof.
(j) The Company has taken proper precautions to preserve the
availability confidentiality and integrity of its computer systems
and has had such systems reviewed regularly by independent experts
in the field.
(k) The Company is not aware of any case where fraud has been committed
against the Company by use or abuse of its computer systems whether
alone or in conjunction with any third party.
(l) The Company has not altered, adapted or modified any software held
by it on licence or used by it whether with or without the consent
of the owner or manufacturers thereof.
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(m) The Company has not got any of its record systems controls data or
information recorded stored maintained operated or otherwise
dependent upon 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 and use
thereof) are not under the exclusive ownership and direct control
of the Company; and
(n) There has been no breach of any service or maintenance contract
relevant to any such electronic mechanical or photographic process
or equipment whereby any person or body providing services or
maintenance thereunder may have the right to terminate such service
or maintenance contract.
BUSINESS NAME
20. The Company does not carry on any part of its business under any name
except its present corporate name and the Vendors have no interest of
any kind in any other entity which trades under a similar name to the
Company or includes the words "Biological Laboratories" in its name and
the Vendors have no interest in any Company or other entity which could
be regarded as being in competition with the Company or is involved in
a business similar to the Business of the Company.
DIRECTORS
21. (a) The only directors of the Company are the persons whose names are
listed in relation to each Company in THE SECOND SCHEDULE to the
Agreement.
(b) None of the persons who at present is a director or officer of the
Company is ineligible to be a director by reason of the Companies
Acts. For the purposes of this clause "director" includes any
person occupying the position of director by whatever name called.
(c) No person is a shadow director (within the meaning of Section 27 of
the Companies Act, 1990) of the Company but is not treated as one
of its directors for all the purposes of the Companies Acts, 1963
to 2001.
(d) None of the Directors or other officers of the Company has been
declared by a Court to be a person to whom chapter I of Part VII of
the Companies Act, 1990 applies, nor has any person been or is an
auditor, Director or other officer in any way, whether directly or
indirectly, concerned or taken part in the promotion, formation or
management of the Company in breach of Section 160 of the Companies
Act, 1990.
COMPLIANCE WITH THE COMPANIES ACT, 1990 AS AMENDED BY THE
COMPANY LAW ENFORCEMENT ACT, 2001
22. The Company has not:-
(a) entered into any arrangement in breach of Section 28 or Section 29
of the Companies Act, 1990 ("the 1990 Act");
(b) made any loans or quasi-loans (within the meaning of Section 25 of
the 1990 Act as amended by Section 75 Company Law Enforcement Act,
2001 ("the CLE Act")), entered into any credit transactions as
creditor or entered into any guarantee or indemnity or provided any
security in connection with a loan, quasi-loan or credit
transaction in breach of Section 31 of the 1990 Act as amended by
the CLE Act;
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(c) been and is not related to any other company for the purpose of
Section 140 of the 1990 Act and is not and will not at any time be
liable to be subject to an order made under that Section by virtue
of any act (whether of commission or omission) that occurred prior
to Completion;
(d) had a notice served on it by its auditors pursuant to Section 185
or 194 of the 1990 Act;
(e) entered into any transaction or arrangement, particulars whereof
would, pursuant to Section 41 of the 1990 Act, require to be
contained in the Accounts proposed by the Company;
(f) purchased or redeemed its own shares or those of its holding
company or created treasury shares pursuant to the provisions of
Part XI of the 1990 Act;
(g) been struck off and subsequently restored to the register pursuant
to Section 311A of the Companies Act, 1963 as amended; and
(h) no shares in or debentures of the Company are subject to or have
been issued in contravention of any restriction under Section 16 of
the 1990 Act and the Company is not legally or beneficially
interested in any shares in or debentures of any company which are
the subject of any restriction under Section 16 of the 1990 Act.
LIABILITIES
23. Each shareholder of the Company who is, or has at any time been
required to notify the Company of its interests in any shares in or
debentures of the Company pursuant to Section 53 of the Companies Act,
1990 has duly complied with its obligations under Part IV Chapter 1 of
that Act.
24 No sums are owing by the Company to its auditors, solicitors or other
professional advisers.
GIFTS
25 Neither the Company nor any of its officers, employees or agents nor
any other person acting on its behalf has directly or indirectly given
or agreed to give any gift or similar benefit to any customer,
supplier, governmental employee or other person who is or may be in a
position to help or hinder its business or assist it in connection with
any actual or proposed transaction.
RETURNS AND INVESTIGATIONS
26 (a) All appropriate returns and all relevant information have been
supplied to the Revenue Commissioners, Customs and Excise,
Department of Enterprise Trade & Employment, Department of Health &
Children, Department of Finance, Department of Social Community and
Family Affairs, Department of Agriculture, National Accreditation
Board, Department of Public Enterprise and all other relevant
governmental, municipal and local authorities in connection with
the business of the Company and the same were and are complete,
true and accurate.
(b) Full details of all negotiations with and investigations and
enquiries by any of the public authorities referred to in
sub-paragraph (a) concerning any alleged or material liability (or
alleged material liability), actual or contingent, of or any
material act or omission of the Company (or any director employee
or agent of the Company in such capacity) have been disclosed to
the Purchaser and in respect of all such negotiations,
investigations and enquiries full and ▇▇▇▇▇ disclosure of all
material facts was made to
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the public authorities concerned and all information supplied to
them was true and accurate and there were and are no circumstances
which would render any such information inaccurate, untrue or
misleading.
(c) There are not pending, nor in existence, any investigations or
enquiries by or on behalf of any governmental or other body or
local or other authority in respect of the affairs of the Company.
(d) The Company has not had its affairs investigated pursuant to
Sections 7, 8 or 9 of the Companies Act, 1990 (the "1990 Act") nor
has there been any investigation of the ownership of the Shares of
the Company pursuant to Sections 14 or 15 of the 1990 Act, nor has
there been a direction made under Section 16 of the 1990 Act nor an
investigation pursuant to Section 66 of the 1990 Act.
(e) The Company is not the subject of or adversely affected by any
Court Order made pursuant to Section 12 of the 1990 Act or
otherwise the subject of or adversely affected by any proceedings
instituted by or against any person as a result of any
investigation of any Company's affairs under the 1990 Act.
(f) The Company is not identified or referred to in any inspectors
report made pursuant to Section 11 of the 1990 Act.
(g) No directions have been given to the Company under or pursuant to
Section 19 of the 1990 Act in relation to the production of
documents.
(h) The Company nor any of its shareholders have not been involved in,
and no claim has been made in respect of any action under Section
205 of the Companies Act, 1963 in relation to any of the Shares.
COMPETITION LAW
27. (a) The Company is not and has not been a party to, or engaged in, any
agreement, arrangement, decision, concerted practice or activity
which is prohibited by Section 4(1) of the Competition Acts 1991
and 2002 (the "Competition Acts").
(b) The Company has not made any notification to the Competition
Authority requesting a licence pursuant to Section 4(2) of the
Competition Acts or a certificate pursuant to Section 4(4) of the
Competition Acts.
(c) The Company has not committed, contrary to Section 5 of the
Competition Acts , any abuse, either alone or jointly with any
other undertaking, of a dominant position within the State or a
substantial part of the State.
(d) An authorised officer appointed pursuant to Section 20 of the
Competition Acts has not entered and inspected any premises at or
vehicles in or by means of which the Company carries on business
nor required the Company nor any of its officers or agents to
produce any books, documents or records and has not inspected,
copied or taken extracts from any such books, documents and records
nor required the Company nor any person to provide any information
in regard to entries in such books, documents and records or in
regard to the Company or its activities.
(e) No petition has been presented by a person pursuant to Section 6(1)
of the Competition Acts for an injunction or declaration or damages
including exemplary damages in relation to any agreement decision,
concerted practice or action in which
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the company is or has been involved nor has any such injunction or
declaration or damages been granted.
(f) No petition has been presented by the Minister pursuant to Section
6(4) of the Competition Acts for an injunction or declaration in
relation to any agreement, decision, concerted practice or action
in which the Company is or has been involved nor has any such
injunction or declaration been granted.
(g) The Company is not and has not been a party to, or engaged in, any
agreement, arrangement decision, concerted practice, or activity
which contravenes the provisions of any competition, anti-trust,
anti-monopoly or anti-cartel law of any jurisdiction.
(h) Neither the Company nor any of its officers or agents (during the
course of their duties in relation to the business) has committed
or omitted to do any act or thing the commission or omission of
which is or could be in contravention of any Treaty Article,
Regulation, Directive, Decision, Act, Order, Regulation or the like
giving rise to any fine, penalty, default, proceedings or other
liability in relation to the business of the Company.
(i) The Company has not received any process, notice or communication,
formal or informal, by or on behalf of the Competition Authority or
the European Commission or any other authority of any country or
any political or administrative sub-division thereof having
jurisdiction in anti-trust or consumer protection matters in
relation to any aspect of its business or any agreement arrangement
or practice to which it is or is alleged to be a party and so far
as the Vendors are aware no such process notice or communication is
likely to be received
MERGER CONTROL LEGISLATION
28. (a) No order has been made under the Mergers Act which directly or
indirectly affects the business of the Company.
(b) In relation to every merger or take-over in which the Company was
involved prior to the date of this Agreement and to which the
Mergers Act applied, the Minister has issued a statement in writing
prior to completion of the merger or take-over concerned stating
that he had decided not to make an order under Section 9 of the
Mergers Act in relation to the proposed merger or take-over.
(c) The Minister has not referred any proposed merger or take-over in
which the Company is or was involved and to which the Mergers Act
applies to the Competition Authority for investigation pursuant to
Section 7(b) of the Mergers Act.
(d) The Company has not been the object of a report of the Competition
Authority under Section 8(1) of the Mergers Act stating whether, in
the opinion of the Authority, a proposed merger or take-over would
be likely to prevent or restrict competition or restrain trade in
any goods or services and would be likely to operate against the
common good.
(e) The Company has never been involved in any merger or take-over
which should have been referred to the Minister under the Merger
Acts but was not so referred and in particular but without
prejudice to the generality of the foregoing the acquisition by
Biological Laboratories Europe Limited of the entire issued share
capital of Entomology Limited from ▇▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ in 1 June, 1998 did not require notification to the
Minister under the Mergers Act and the Acquisition
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was approved by resolution of the shareholders of the Company
pursuant to Section 29 of the Companies Act, 1990.
(f) The Company has not received any process, notice or communication,
formal or informal from any authority of any country in relation to
any aspect of its business which notice process or communication
was adverse to the business in any way.
DATA PROTECTION
29. No individual has claimed compensation from the Company under the Data
Protection Act, 1988 as amended by the European Communities (Data
Protection) Regulations, 2001 for loss or unauthorised disclosures of
data, nor has the Company received any notice or allegation from either
the Data Protection Registrar or a data subject alleging non-compliance
with the data protection principles of that Act or prohibiting the
transfer of data to a place outside Ireland.
ENVIRONMENT
30. For the purposes of this paragraph 30:-
"ENVIRONMENTAL LEGISLATION" shall mean all applicable laws of Ireland
or any local authority in Ireland (including common law) and European
Community Law and the law of any relevant foreign country or authority
within any such country and regulations having the force of law
concerning the protection of human health or the environment or the
conditions of the workplace or the generation, transportation, storage,
treatment or disposal of toxic or special wastes, hazardous wastes,
controlled wastes or any other wastes or disposal or treatment of
animal carcas or other dangerous substances including but not limited
to the Fisheries (Consolidation) ▇▇▇, ▇▇▇▇, Local Government (Water
Pollution) Act, 1977, the Local Government (Water Pollution)
(Amendment) Act, 1990, the Local Government (Water Pollution)
Regulations, 1978, the Air Pollution ▇▇▇ ▇▇▇▇, the Air Pollution ▇▇▇,
▇▇▇▇, (Licensing of Industrial Plant) Regulations, 1988, the Local
Government (Planning and Development) Acts, 1963 to 1999, the Planning
and Development ▇▇▇ ▇▇▇▇, Local Government (Planning and Development)
Regulations 1994 to 2000, the Planning Regulations 2001, the Dangerous
Substances Acts, 1972 and 1979, the Local Government (Sanitary
Services) Acts, 1878-1964, European Communities (Control of Veterinary
Medicinal Products and their Residues) Regulations 1990 (SI 171/1990),
European Communities (Disposal Processing and Placing on the Market of
Animal By Products) Regulations 1994 (SI 257/1994), the Safety in
Industry Acts, 1955 and 1980, the Safety, Health and Welfare at Work
▇▇▇, ▇▇▇▇, the Public Health (Ireland) Acts, 1878, the Public Health
Acts (Amendment) ▇▇▇, ▇▇▇▇, Fisheries Acts 1959 to 1991 and the
Fisheries (Amendment) ▇▇▇ ▇▇▇▇ to 2001, the Litter Pollution ▇▇▇ ▇▇▇▇,
the Environmental Protection Agency Act, 1992, the Waste Management
Act, 1996, The Waste Management (Amendment) Act, 2001, the Waste
Management (Use of Sewage Sludge in Agriculture) Regulations 1998, The
European Communities (Waste) Regulations, 1979, The Waste Management
(Licensing) Regulations 1997, the Waste Management (Permit) Regulations
1998, the European Communities (Licencing of Incinerators of Hazardous
Waste) Regulations 1998, Directive 94/67/EC on the incineration of
Hazardous Waste, Directive 2000/76 on the incineration of Hazardous
Waste and any other regulations made under the Waste Management ▇▇▇
▇▇▇▇ and Waste Management (Amendment) ▇▇▇, ▇▇▇▇, the European
Communities (Environmental Impact Assessment) Regulations 1989-1999,
the Radiological Protection ▇▇▇ ▇▇▇▇ and all orders and regulations
under any of the above legislation and as the same are from time to
time varied or amended and any other statute or subordinate legislation
code of practice guidance note or local government or other bye-laws
relating to human health or the environment or the conditions of the
workplace or the generation transportation storage treatment or
disposal of Hazardous Items (hereinafter defined);
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"Hazardous Items" means any waste as defined in the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ as amended and include hazardous waste, commercial, household,
industrial and municipal waste as therein defined and any kind of noise
vibration smell fumes smoke soot ash dust grit chemicals leachate
petroleum products noxious radioactive inflammable explosive dangerous
or offensive gases or materials and any other substances of whatever
nature which may cause harm to man or to the health of living organisms
or to the environment or public health or welfare.
(a) The Company has at all times complied with Environmental
Legislation and there is nothing in on or over or under the
Properties the presence existence or condition of which constitutes
a breach of Environmental Legislation nor is or has there been any
manufacturing storage generation servicing treatment disposal or
other process carried on or at the Properties in such a way as to
amount to a breach of the same.
(b) All necessary permits, permissions, approvals, licences, consents,
authorisations and registrations ("the Consents") required under
Environmental Legislation with regard to the Properties or the
business of the Company and/or any activities processes, tests and
substances from time to time on the Properties or carried on by the
Company have been obtained and made in the name of the Company.
(c) any person to whom the Company has transferred the control of its
waste has the appropriate waste collection permit or waste licence
under the Waste Management ▇▇▇ ▇▇▇▇ or the Environmental Protection
Agency Act, 1992 (and such waste collection permit or waste licence
has not been revoked)
(d) All Consents required under Environmental Legislation (or true and
complete evidential copies of the same) are in the possession or
under the control of the Company and there are no outstanding
applications or appeals in relation to the same.
(e) All statements made and all information supplied by or on behalf of
the Company in support of applications made for the Consents were
and remain true and accurate in all material respects.
(f) All conditions attached to the Consents have in all material
respects been complied with and no claims or proceedings have been
made or issued or are contemplated or threatened alleging a breach
of such conditions and all Consents are valid and subsisting and no
communication has been received alleging that any Consent may be
modified suspended, refused or revoked and there are no
circumstances likely to give rise to modification suspension,
refusal or revocation.
(g) No writ, summons, order, enforcement notice, prohibition notice or
other notice has been issued or served and no direction from any
Government Office or of any public local or other statutory
authority has been made with regard to the Properties or to the
Company and/or any activities processes or substances or tests in
or over or under the Properties or carried on by the Company
pursuant to the Environmental Legislation or with regard to the
presence of any Hazardous Items and no prosecutions have been
instituted with respect thereto.
(h) No offence has been committed on or in connection with the
Properties or any activities processes or substances in on over or
under the Properties or with the activities of the Company pursuant
to Environmental Legislation.
(i) No complaints have been made by any third party (including any
employee or Government or Local Authority) with regard to the
Properties and/or any activities
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processes or substances in on over or under the Properties or with
regard to any activities of the Company as the result of any actual
or alleged breach of Environmental Legislation or the presence of
any Hazardous Items and the Vendors are not aware of any
circumstances which may lead to any such complaint.
(j) No works have been carried out on the Properties by any public
local or other statutory authority under Environmental Legislation
or any other legislation in respect of which such authority is
entitled to recover costs nor has the Company received any notice
or any information indicating that it is or may be responsible for
all or some portion of the costs of investigating treating
containing removing from any place or otherwise addressing any
Hazardous Items.
(k) There are not on the Properties or have there been:-
(i) any genetically modified organisms as defined in Directives
90/219/EC and 90/220/EEC on the deliberate release into the
environment of genetically modified organisms;
(ii) carried on any activities requiring a licence under the
Radiological Protection Act, 1991;
(iii) any hazardous waste (as defined in the Waste Management Act,
1996 (as amended));
(iv) carried on any activity requiring a licence for the purposes
of integrated pollution control under the First Schedule to
the Environmental Protection Agency Act, 1992; or
(v) any offence under the ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇;
(l) The Properties have not been affected by any landfill gas or other
contaminants nor is or has there been used disposed of generated
stored transported dumped released deposited burned or emitted any
Hazardous Items at on from or under the Properties or at on from or
under any other premises.
(m) There is not nor has there been any leaking of any gas liquid or
other material of any kind into over or under the Properties from
any adjacent land or premises in third party ownership.
(n) No Hazardous Items have been spilled released discharged or
disposed of in the soil or water in under or upon the Properties or
in any of the buildings comprised in the Properties and there has
been no loss, spillage, accident or other development which the
Company is obliged to notify the Local Authority or the
Environmental Protection Agency or both about (under Section 32 of
the Waste Management Act, 1996).
(o) The Company has not received nor applied for any grants or funds
from any public local or other statutory authority in connection
with environmental improvements or reclamation on the Properties.
(p) The Vendors are not aware of any proposed health safety or
environmental requirements (whether in relation to the Properties
or any activities processes or substances from time to time on the
Properties or from time to time carried on by the Company) which if
adopted would have a material adverse impact upon the Company.
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(q) The Company is not the subject of any public or private litigation
or proceedings involving a demand for damages or equitable relief
or other potential liabilities with respect to any violation or
alleged violation of any Environmental Legislation.
(r) There has not been disposed of, spread, buried or incinerated on
the Properties any animal carcass or part of any animal or any
product of animal origin (including waste).
BRANCH
31. The Company has outside Ireland no branch, agency or place of business
or any permanent establishment.
VENDORS' OTHER INTERESTS
32. The Vendors do not have any rights or interests, directly or
indirectly, in any business other than that now carried on by the
Company which are or are likely to be or become competitive with the
business of the Company, save as registered holder or beneficial owner
of any class of securities of any company which is listed on the Stock
Exchange and in respect of which the Vendors hold and is beneficially
interested in less than 5 per cent of any single class of the
securities in the company.
ACCOUNTS
33. The Accounts have been prepared in accordance with the law and on a
basis consistent with that adopted in preparing the annual accounts of
the Company for the previous 3 financial periods in accordance with
accounting principles, standards and practices generally accepted in
Ireland at the date of this Agreement and give a true and fair view of
the state of affairs of the Company as at the Relevant Date and of its
assets, liabilities and profits or losses as at that date or for the
periods concerned and the audited balance sheet of the Company and the
audited profit and loss account of the Company for the period ended on
the Relevant Date have been prepared in accordance with the law and in
accordance with accounting principles, standards and practices
generally accepted in Ireland at the date of this Agreement and give a
true and fair view of the state of affairs of the Company as at the
Relevant Date and its assets, liabilities and profits or losses as at
that date or for the period concerned.
34 Adequate provision for all material liabilities as far as were known or
had been ascertained or could be reasonably anticipated by the Company
has been made in the Balance Sheet; there were no material capital
commitments of the Company as at the Relevant Date except as noted; the
Balance Sheet did not overstate the current or fixed assets, the
valuation and depreciation rates used therein were on the same basis as
in previous years and proper provision was made for bad and doubtful
debts. The Balance Sheet contained sufficient provision to cover all
Taxation for which the Company was on the Relevant Date or at any time
thereafter may have become or may hereafter become liable to be
assessed or to pay, or on, in respect of, or by reference to, the
profits, gains, income or earnings of the Company for any period ending
on or before the Relevant Date and in respect of all distributions,
dividends, loans, advances and payments, paid, due, payable or made
prior to the date hereof.
35. Since the incorporation of the Company there has been no change in:-
(a) the accounting policies followed by the Company and the Accounts
have been prepared using the accounting policies detailed in
Annexure C; or
(b) the basis and method of valuing the stock or the basis and method
of determining depreciation or of determining the amount of any
asset or liability of the Company
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of a kind which would have a material effect in relation to, or on the
amount at which the item affected by the change is stated in the
Company's audited consolidated balance sheet and profit and loss
account at the Relevant Date.
36. Since the incorporation of the Company none of the assets of the
Company has been revalued.
37. In the Accounts:-
(a) redundant, obsolete, excessive or inadequate stocks of the Company
has been written off or written down as appropriate in accordance
with the accounting policy for inventories disclosed in the
Accounts so that taken as a whole it is stated at an amount not in
excess of net realisable value at the Relevant Date;
(b) the basis of valuation for stock-in-trade -
(i) is in accordance with Statement of Standard Accounting
Practice No. 9 and is particularly described in the Statement
of Accounting Policies in the Accounts;
(ii) has remained substantially the same in respect of the
commencement and end of each of the accounting periods of the
Company for the last three years
(c) depreciation has been provided in accordance with the accounting
policy for tangible fixed assets as disclosed in the Accounts up to
and including the Relevant Date.
38. (a) The debts included in the Accounts and debts accruing to the
Company since the Relevant Date up to the date hereof are valid and
enforceable and will realise in the ordinary course of collection
the full nominal amounts thereof except to the extent of the
provision for bad or doubtful debts in the Accounts and no book
debt is the subject of any dispute, litigation, counterclaim or
set-off nor are there any circumstances which may make any book
debt owed to the Company bad or doubtful.
(b) Provisions for bad or doubtful debts have been calculated in
accordance with the accounting policy for debts as disclosed in the
Accounts.
39. All accounts books ledgers and other financial records of the Company:-
(a) have been properly maintained and contain records of all matters
required to be entered therein by the Companies Acts;
(b) do not contain or reflect any material inaccuracies or
discrepancies; and
(c) give a true and fair view and accurately reflect the transactions
and matters dealt with as at the date stated therein.
40. (a) The Accounts contain an unqualified report from the Auditors.
(b) No audited accounts of the Company in the past five years had
attached thereto an auditor's report which was qualified in any
way.
41. (a) The financial position and results shown by the Accounts or
previous accounts of the Company for the last three years have not
(except as therein disclosed) to any material extent been affected
by any extraordinary or exceptional items or by inconsistencies of
accounting practice or by the inclusion of non-recurring items
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of income or expenditure or by transactions entered into otherwise
than on normal commercial terms or by any other factor rendering
such financial position and results unusual or misleading in any
material respect.
(b) Except as disclosed by the Accounts or previous accounts of the
Company the profits of the Company for the year ended on the
Relevant Date have not to a material extent been affected by any
unusual or non-recurring income or expenditure or by any other
factor rendering such profits for all or any such year
exceptionally low or high.
42. The Balance Sheet of the Company has:-
(a) made adequate provision or reserve for or note of all the
liabilities (whether actual or contingent and whether or not
quantified or disputed) of the Company for which the Company has
been and was at the Relevant Date or at any time thereafter may
have become or may hereafter become liable to be assessed on or in
respect of or by reference to the profits, gains, income or
earnings of the Company for any period ending on or before that
date and dividends or other distributions, loans or advances); and
(b) made adequate provision or reserve for depreciation and
amortisation of fixed assets (such fixed assets not having been
re-valued upwards for the purposes of the balance sheets), for bad
and doubtful debts, discounts, credits for overcharging,
maintenance and rectification and for deferred tax on the basis
disclosed in the Accounts and contain full notes as to all material
contingent liabilities and any material capital commitments
undertaken or authorised as at the Relevant Date.
43. There are no facts or circumstances known to the Vendors which would
cause the Vendors, if a balance sheet of the Company was being prepared
as at the date of execution hereof to include in such balance sheet a
provision in relation to such facts or circumstances.
44. There are no commitments on capital account outstanding at the Relevant
Date other than as set out in the Accounts.
45. No guarantee has been executed or filed by or in respect of the Company
pursuant to Section 17 of the Companies (Amendment) Act, 1986.
PROPERTIES
TITLE
46. (a) The Properties comprise:-
(i) all the land and premises owned occupied or otherwise used by
the Company; and
(ii) all the estate interest right and title whatsoever (including
for the avoidance of any doubt interests in the nature of
options) of the Company in respect of any land or premises;
(b) Those of the Properties which are occupied or used by the Company
in connection with any business carried on by the Company are so
occupied or used by right of ownership or under lease or licence
and the terms of any such lease or licence permit such occupation
and use.
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(c) The Company is the legal and beneficial owner of the Properties and
all fixtures and fittings at the Properties are the absolute
property of the Company free from encumbrances.
(d) The Company has a good and marketable title to the Properties free
from all questions or doubts and has excepted and reserved to it
all necessary and appropriate easements and other rights for the
benefit of the Properties.
(e) The information contained in the Fifth Schedule to the Agreement as
to the tenure of the Properties the principal terms of the leases
or licences under which the same are occupied or used by the
Company and the principal terms of the tenancies or licences
subject to and with the benefit of which the Properties are held is
true and accurate in all respects.
(f) Where the title to any of the Properties is unregistered it is
properly constituted by and can be deduced from duly stamped
documents of title which are in the possession or under the control
of the Company. No event has occurred in consequence of which
registration should have been effected at the Land Registry.
(g) Where the title to any of the Properties is registered the Company
is shown on the register thereof at the Land Registry as the
registered owner with absolute title and where the Land Certificate
in respect of any of such Properties has issued the Land
Certificate is in the possession or under the control of the
Company and where the Land Certificate has not issued no
application has been made by or on behalf of the Company for its
issue.
ENCUMBRANCES
(h) The Properties are free from any mortgage debenture or charge
(whether specific or floating legal or equitable) rent charge lien
or other encumbrance securing the repayment of monies or other
obligation or liability whether of the Company or any other party.
(i) The Properties are not subject to any liability for the payment of
any outgoings other than local authority rates and in the case of
leasehold properties the rents and service charges specified in the
Leases under which the Properties are held.
(j) The Properties are not subject to any covenants restrictions
stipulations easements profits a prendre wayleaves licences grants
exceptions or reservations overriding interests or other such
rights the benefit of which is vested in third parties nor any
agreement to create the same.
(k) The Properties are not subject to any agreement or right to acquire
the same nor any option right of pre-emption or right of first
refusal and there are no outstanding actions claims or demands
between the Company and any third party affecting or in respect of
the Properties.
(l) The Properties are free from any charge claim caution inhibition or
notice and no matter exists which is capable of registration
against any of the Properties.
(m) There is no person who is in occupation (other than pursuant to any
of the tenancies referred to in the Fifth Schedule) or who has or
claims any rights or easements of any kind in respect of the
Properties adversely to the estate interest right or title of the
Company therein.
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PLANNING MATTERS
(n) For the purposes of sub-paragraphs (n) to (y) (inclusive) of this
paragraph "the Planning Acts" means
- The Local Government (Planning and Development) Acts 1963 to 1999
and the Planning and Development Act, 2000) ;
- ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
as the same are from time to time varied or amended and any other
statute or subordinate legislation relating to planning matters.
(o) The use of each of the Properties is the permitted or lawful use
for the purposes of the Planning Acts and no such use is subject to
planning conditions of an onerous or unusual nature (including any
of a personal or temporary nature).
(p) All necessary permissions have been obtained for the purposes of
the Planning Acts in respect of any development of the Properties
and any subsequent alteration extension or other improvement of the
same and no planning permission is of a personal or temporary
nature or has been revoked modified or suspended or is the subject
of a High Court challenge and no application for planning
permission is either awaiting decision or the subject of any
appeal.
(q) Building regulation and bye-law consents and approvals and Fire
Safety Certificates (where applicable) have been obtained in
respect of the development of the Properties and any subsequent
alteration extension or other improvement of the same.
(r) Compliance is being made and has at all times been made in all
respects with all planning permissions and building regulation and
bye-law consents for the time being in force in relation to the
Properties and with all orders directions and regulations made
under the Planning Acts and all conditions attached thereto have
been fully complied with.
(s) no agreements or undertakings relating to the Properties have been
entered into under any statutory provision or otherwise.
(t) Compliance is being and has at all times been made with all
statutory provisions relating to the Properties.
(u) None of the Properties is listed as being of special historic or
architectural importance or located in a conservation area nor are
the Properties affected by any tree preservation orders.
(v) All development charges monetary claims and liabilities under the
Planning Acts or any other such legislation have been discharged
and no such liability contingent or otherwise is outstanding in
respect of the Properties.
(w) None of the Properties is affected or likely to be adversely
affected by any proposals contained in any development plan
prepared or in the course of preparation in respect of the areas in
which the Properties are situated.
(x) All statements made and all information supplied by or on behalf of
the Company in support of applications lodged for the grant of
permissions or certificates under the
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Planning Acts in respect of the Properties were and remain true and
accurate in all material respects.
(y) No enforcement notices warning notices or other notices have been
issued by any local planning authority in respect of the Properties
nor has any enforcement or other action (including the exercise of
any right of entry) been taken by any such authority and the
Vendors are not aware of any circumstances which may lead to the
same.
STATUTORY OBLIGATIONS
(z) Compliance is being made and has at all times been made with all
applicable statutory and bye-law requirements with respect of the
Properties and in particular (but without limitation) with
requirements as to fire precautions and means of escape in case of
fire and with requirement under the Fire Services ▇▇▇, ▇▇▇▇.
(aa) There is no outstanding and unobserved or unperformed obligation
with respect to the Properties necessary to comply with the
requirements (whether formal or informal) of any local or other
competent authority and the Company does not anticipate that it
will be obliged to incur the expenditure of any substantial sum of
money within the next two years for such purpose.
(bb) There are not in force or required to be in force any licences,
permits or other consents whether under statute or otherwise which
apply to the Properties or relate to or regulate any activities
carried on therein.
ADVERSE ORDERS
(cc) There are no compulsory purchase or demolition notices orders or
resolutions affecting the Properties nor are the Vendors aware of
any circumstances likely to lead to any being made.
(dd) No notices have been served under the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
affecting the Properties nor are the Vendors aware of any
circumstances likely to lead to any being served.
CONDITION OF THE PROPERTIES
(ee) The buildings and other structures on the Properties are in good
and substantial repair and fit for the purposes for which they are
at present used.
(ff) There are no disputes with any adjoining or neighbouring owner
with respect to boundary walls and fences or with respect to any
easement right or means of access to the Properties.
(gg) The principal means of access to the Properties are over roads
which have been taken over by the local or other roads authority
and which are maintainable at the public expense and no means of
access to the Properties is shared with any other party nor
subject to rights of determination by any other party.
(hh) Each of the Properties enjoys the main services of water drainage
electricity and gas through media located entirely on in or under
the Properties and the passage and provision of such services is
uninterrupted.
(ii) None of the Properties is located in an area or subject to
circumstances particularly susceptible to flooding.
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(jj) No building or structure on the Properties has at any time been
affected by structural damage or electrical defects or by timber
infestation rising damp or disease.
(kk) The Properties are not subject to any rights of common.
(ll) None of the Properties is affected by past or present mining
activity.
(mm) None of the Buildings or other structures on the Properties
contains in its fabric any:-
(i) high alumina cement or concrete;
(ii) calcium chloride cement;
(iii) calcium silicate bricks or tiles;
(iv) asbestos products;
(v) wood wool slabs in permanent shuttering form;
(vi) crocidolite;
(vii) untreated sea-dredged aggregates;
(viii) alkali re-active aggregates;
(ix) urea formaldehyde;
(x) vermiculite plaster;
(xi) artificial slates;
(xii) lead based paints;
(xiii) concrete curing accelerator;
or any deleterious substances or any substances or materials
generally known to be deleterious to health or safety or to the
integrity of building.
INSURANCE
(nn) The Properties are insured in their respective full reinstatement
value and for not less than three years' loss of rent and against
third party and public liability claims to an adequate extent.
(oo) All premiums payable in respect of insurance policies relating to
the Properties which have become due have been duly paid and no
circumstances have arisen which would vitiate or permit the
insurers to avoid such policies.
LEASEHOLD PROPERTIES
(pp) The Company has paid the rent and observed and performed the
covenants on the part of the lessee and the conditions contained
in any leases (which expression includes underleases) under which
the Properties are held and the last demand for rent (or receipts
if issued) were unqualified and all such leases are valid and in
full force.
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(qq) All licences consents and approvals required from the lessors and
any superior lessors under the leases of the Properties and from
their respective mortgagees (if any) have been obtained and the
covenants on the part of the lessee contained in such licences
consents and approvals have been duly performed and observed.
(rr) There are no notices negotiations or proceedings pending in
relation to rent reviews nor is any rent liable at the date hereof
to be reviewed and time is not of the essence in respect of any
steps to be taken in the conduct of rent reviews.
(ss) There is no obligation to reinstate any of the Properties by
removing or dismantling any alteration made to the same by the
Company or any predecessor in title to the Company.
(tt) There is not outstanding and unobserved or unperformed any
obligation necessary to comply with any notice or other
requirement given by the lessor under any leases of the
Properties.
(uu) There are no circumstances which would entitle any such lessor to
exercise any powers of entry or take possession or which would
otherwise restrict the continued possession and enjoyment of the
Properties.
(vv) The Company does not have any continuing liability in respect of
any other property formerly owned or occupied by the Company
either as original contracting party or by virtue of any direct
covenant having been given on a sale or assignment to the Company
or as a guarantor of the obligations of any other person in
relation to such property.
(ww) The Company is in actual occupation of all parts of the Properties
and the security of tenure provisions of the Landlord and Tenant
Acts are not excluded nor is the right to compensation for
disturbance and no notices have been served on or received by the
Company under the Landlord and Tenant Acts.
TENANCIES
(xx) The Properties are held subject to and with the benefit of the
tenancies (which expression includes sub-tenancies) as set out in
the Fifth Schedule to the Agreement and none other.
(yy) With respect to such tenancies there have been disclosed in the
Fifth Schedule particulars of:-
(i) the rent and any rent reviews and with respect to rent
reviews whether they are upwards only the date for giving
notice of exercise of such reviews and the operative review
date;
(ii) the term and any rights to break or renew the term;
(iii) the obligations of the landlord and tenant in respect of
outgoings repairs insurance services and service charge;
(iv) any option pre-emption or first refusal rights;
(v) the user required or permitted under the terms of the
tenancies;
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(vi) any entitlement of a tenant of the whole or any part of the
Properties to compensation on quitting the premises let to
him in respect of disturbance and improvements or
otherwise;
(vii) any unusual provisions;
(viii) any sub-tenancies derived out of such tenancies.
(zz) The Vendors are not aware of any material or persistent breaches
of covenant by a tenant of any of the Properties including the
covenants to pay rent and no guarantor or surety has been
released expressly or by implication.
(aaa) All such tenancies are incapable of alienation without the
previous written consent of the Company and prohibit absolutely:-
(i) the assignment underletting or parting with possession of
part (as opposed to the whole) of the premises comprised in
the same; and
(ii) the sharing of possession or occupation of all or any of the
said premises.
(bbb) All such tenancies are on full repairing and insuring terms so
that the occupational tenants or other occupants are together
contractually responsible to the Company (whether by way of
service charge or otherwise) for payment of the whole of the
rates and all outer outgoings (including but without limitation
the insurance repair decoration maintenance and rebuilding of the
Properties and amortisation of plant and machinery thereat)
payable in respect of the Properties so that there is no residual
liability on the part of the Company and all expenditure by the
Company (other than rent payable under the leases vested in the
Company) in respect of the Properties is recoverable by the
Company and the Company as landlord is entitled to charge
reasonable management fees.
(ccc) No tenant or licensee has commuted any rent or licence fee or
made any payment thereof before the due date thereof and no rent
reviews are currently being negotiated.
(ddd) None of the Properties or any part thereof is or was a family
home within the meaning of the Family Home Protection Act 1976
nor is affected by the provisions of the Family Law ▇▇▇ ▇▇▇▇, the
Judicial Separation and Family Law Reform Act 1989 or the Family
Law Act, 1995.
(eee) None of the Properties are "specified buildings" within the
meaning of the Local Government (Multi-Storey ▇▇▇▇▇▇▇▇) ▇▇▇,
▇▇▇▇.
TAXATION
47. All taxation of any nature whatsoever or other sums imposed charged
assessed levied or payable under the provision of applicable
legislation relating to taxation for which the Company is liable as a
result of any act or omission by the Company prior to Completion will
if, and in so far as such taxation or other sums ought to be paid prior
to or on Completion, have been paid at or before Completion and in
particular, but, without prejudice to the generality of the foregoing,
at Completion, all amounts due for payment to the Revenue Commissioners
in respect of excise duty and of Value Added Tax in respect of goods or
services supplied prior to Completion or goods imported prior to
Completion or intra-community acquisition of goods and of all
withholding taxes deductible prior to Completion and of income tax
deductible prior to Completion under Schedule E by virtue of the
P.A.Y.E. regulations from time to time in force will have been paid so
that the Company will have no
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liability in respect thereof and at Completion all Social Welfare and
Pay Related Social Insurance contributions (both employer's and
employees') and any other levies and impositions due in respect of the
employees of the Company will have been duly paid.
48. The Company is not liable nor has it at any time since the Relevant
Date been liable to pay interest on overdue taxation.
49. The Company has not acquired or disposed of any asset or entered into
any transaction otherwise than by way of bargain at arm's length.
50. The Company has not entered into any financing leasing or other
agreement in which or in connection with which the Company has
indemnified any other party against any claim, loss or other liability
arising from any change in tax legislation or in the interpretation of
tax legislation.
51. There are set out in the Disclosure Letter full particulars of all
differences between the accounting and taxation treatments of all items
in the Accounts.
52. There is no appeal by the Company pending against any assessment to tax
and the Company is not in default in payment of any tax within the
period prescribed for payment thereof.
53. The Company has not committed any act nor made any omission which might
constitute an offence under Section 1078 of the TCA. [aiding, abetting,
assisting etc. tax evasion.]
54. The Company has not been at any time, for taxation purposes, resident
in any jurisdiction other than the Republic of Ireland nor has it been
at any time managed or controlled in or from any country other than the
Republic of Ireland and the Company has not at any time carried on any
trade in any other country.
55. The Company has for each accounting period up to and including the
accounting period ending on 31 January, 2001 furnished the Company's
Inspector of Taxes with full and accurate particulars relating to the
affairs of the Company and also has properly and within the prescribed
periods of time made all returns and given or delivered all notices,
accounts and information required for the purpose of taxation and all
such have been correct in all material respects and on a proper basis
and none such are disputed by the Revenue Commissioners or other
authority concerned, and the Company has made all claims which would be
of benefit to it within the time limits laid down in the relevant
legislation.
56. The Company has submitted and the Revenue Commissioners have agreed
computations of its taxable profits in respect of all periods up to and
including the year ended on 31 January, 2001.
57. The Company has not entered into or been a party to any schemes or
arrangements designed partly or wholly for the purpose of avoiding
taxation. The Company has not been involved in any "tax avoidance
transaction" within the meaning of Section 811 of the TCA and no
provisions of that Section apply to the Company in respect of any event
(whether or not involving the Company) which took place before
Completion or in respect of any series of events (whether or not such
events or any of them involve such company) taking place partly before
Completion and partly after Completion. [transactions to avoid tax
liability].
58. No act or transaction has been effected in consequence of which the
Company is liable for any taxation primarily chargeable against any
other person, including any other company.
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59. The making of returns, payment or preliminary tax and all other
requirements of Part 41 and Section 608(1), Section 717(2) and Section
774(4) of the TCA complied with fully by the Company.
60. No surcharge for late submission of returns under Section 1084 of the
TCA has or will become payable by the Company in respect of any period
prior to Completion nor have any claims to relief connected with the
Company been restricted or will be restricted by Section 1085 of the
TCA.
61. No penalty under Section 1084 of the TCA has or will become payable.
[application of penalties to self-assessment returns.]
62. No notice of attachment has been served on the Company or in relation
to any funds of the Company under subsection (2) Section 1002 of the
TCA [attachment of defaulter's funds].
63. A relevant person has not communicated in writing particulars of an
offence or offences to the Company under Section 1079 of the TCA as
defined in Section 1079 of the TCA [duties of auditor/tax advisers to
report certain Revenue offences].
64. The Company has complied in all respects with the reporting
requirements of Part VII of the Finance ▇▇▇ ▇▇▇▇ as replaced by Part
38, Chapters 3 and 4 and Section 1094 of the TCA.
65. The provisions of the Waiver of Certain Tax, Interest and ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ particularly Sections 3 and 9 do not have application to the
Company [Mandatory requirement to avail of the tax amnesty where
applicable].
66. No transaction has been effected by the Company in respect of which any
consent or clearance from the Revenue Commissioners or other taxation
authorities was required (i) without such consent or clearance having
been validly obtained before the transaction was effected and (ii)
otherwise than in accordance with the terms of and so as to satisfy any
conditions attached to such consent or clearance and (iii) otherwise
than at a time when and in circumstances in which such consent or
clearance was valid and effective.
67. Nothing has been done and no event or series of events has occurred or
will as a result of any contract, agreement or arrangement entered into
before completion occur, which might when taken together with the entry
into or completion of this agreement cause or contribute to the
disallowance to the Company of the carry forward of any losses or
excess charges on income.
68. The Company has never been refused a tax clearance certificate by the
Revenue Commissioners requested under the provisions of Section 1095
TCA or any other provisions relating to the obtaining of tax clearance
certificates which it did not subsequently obtained.
69. Where full disclosure for deferred taxation (in accordance with
Standard Statement of Accounting Practice No 15 of the Institute of
Chartered Accountants in Ireland) is not made in the Accounts full
details of the amounts have been disclosed in the Disclosure Letter.
70. CORPORATION TAX
(a) The Company has not paid remuneration to its directors in excess of
such amount as will be deductible in computing the taxable profits
of the Company; and
(b) The Company has not paid and will not pay remuneration or
compensation for loss of office or make any gratuitous payment or
any other payment in respect of management or other services
rendered or to be rendered to the Company to any of its
-87-
present or former directors or employees which will not be
deductible in computing the taxable profits of the Company.
71. In respect of share option schemes under Section 10 of the Finance Act,
1986 (i.e. share options granted before 29.1.92) as amended by the
Finance ▇▇▇ ▇▇▇▇ (for share options granted on or after 29.1.92) (Refer
Schedule 32, paragraph 7(1) of the TCA) no circumstances exist which
would lead the Revenue Commissioners to withdraw approval of any such
scheme or to contend that the Company is not a qualifying company
carrying on a specific trade.
72. In respect of profit sharing schemes under Part 17, Chapter 1 of the
TCA no circumstance exists which would lead the Revenue Commissioners
to withdraw approval of any such scheme.
73. If any employee of the Company has benefited from Section 479 of the
TCA no circumstance exists in relation to the Company which would lead
to the withdrawal of the relief.
74. The Company has not, within the meaning of Part 18, Chapter 1 of the
TCA received payment in respect of professional services from an
accountable person [withholding tax on professional fees].
75. The Company has complied in all respects with the requirements of Part
13 of the TCA (close companies).
76. No loan or advance or payment has been made or consideration given or
transaction effected falling within Sections 438 or 439 of the TCA.
[loans or write-off of loans to shareholders.]
77. The Company has duly complied with the requirements of Sections 238 and
239 of the TCA [payments made under deduction of tax] and with the
requirements of all other provisions relating to the deduction and
withholding of tax at source up to the date hereof and all such tax
which has become due to the Revenue Commissioners has been paid to the
Revenue Commissioners
78. The Company has never incurred any expense or paid any amount in
consequence of which the Company has been or could be treated under
Section 436 or Section 437 of the TCA as having made a distribution.
[treatment of expenses as dividends.]
79. The limitation on the meaning of "distribution" provided for by Section
4 of the TCA does not apply to any financial arrangements of the
Company. [ limitation on use of "Section 84" finance.]
80. The Company is not affected by the amendments to Part 6, Chapters 1-6
and Section 20 of the TCA. [Additional conditions in respect of
"Section 84" loans].
81. No action has been taken by the Company which would result in the
withdrawal of any "Section 84" loans that the Company has with any
financial institution, or in the terms of any such "Section 84" loans
being altered in a manner that adversely affects the Company.
82. Section 138 of the TCA [treatment of dividends on certain preference
shares] does not apply to any dividend paid by the Company in respect
of its preference shares.
83. The Company has not made any claim for relief in respect of stock
appreciation under Section 31 and 31A of the Finance ▇▇▇ ▇▇▇▇ or
Section 26 of the Finance ▇▇▇ ▇▇▇▇ or Section 49 of the Finance ▇▇▇
▇▇▇▇, as applicable prior to the implementation of the TCA.
-88-
84. The Company has not effected or entered into any act transaction or
arrangement of any nature whereby it has incurred or may hereafter
incur any liability under or by virtue of any of Part 4, Chapter 8 of
the TCA. [treatment of premiums on rental income].
85. The Company has not surrendered any amount by way of group relief under
the provisions of Part 12, Chapter 5 of the TCA [set-off within a
group].
86. The Company is not and will not at any time in the future become liable
to make a subvention payment or any other payment for an amount
surrendered by any other company under or in connection with the
provisions of Section 411 of the TCA. [payment for group relief].
87. The Company has not at any time:
a) repaid or redeemed or agreed to repay or redeem any shares of any
class of its share capital or otherwise reduced or agreed to reduce
its issued share capital or any class thereof; or
b) 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
c) provided capital to any company on terms whereby the company so
capitalised has in consideration thereof issued shares loan stock
or other securities where the terms of any such capitalisation were
otherwise than by way of a bargain made at arm's length or where
the shares loan stock or other securities acquired are shown in the
Accounts at a value in excess of their market value at the time of
acquisition.
88. No allowable loss which has arisen or which may hereafter arise on the
disposal by the Company of shares in or securities of any company is
liable to be disallowed in whole or in part by virtue of the
application of Section 621 of the TCA [transactions in a group] or
Section 622 of the TCA [dividend stripping] [anti avoidance
provisions.]
89. No change of ownership of the Company has taken place in circumstances
such that Section 401 of the TCA [change in ownership of Company:
disallowance of trading losses] has or may be applied to deny relief
for a loss or losses incurred by the Company.
90. On a sale of any machinery and plant at the value thereof shown in the
Accounts no balancing charge will be incurred.
91. There has not been in respect of any accounting period any excess of
distributable investment and estate income within the meaning of
Section 434 of the TCA.
92. The Company is entitled to relief up to 5 April 1990 under Sections 145
and 146 of the TCA.
93. The Company has not claimed relief under Part 6, Chapter 5, Part 14,
Chapter 1 and Schedule 32 of the TCA.
94. The Company has conducted its operations in accordance with the facts
and circumstances advised to the Revenue Commissioners in 1996 which
led them to issue their favourable ruling on 20 August, 1996 in
relation to manufacturing relief.
95. The Company has not entered into transactions by virtue of which it
will be chargeable under Case IV of Schedule D in accordance with
Section 815 of the TCA. [taxation of income deemed to arise on sales of
certain securities e.g. government/semi-state stock.]
-89-
96. The restrictions on the use of capital allowances for certain leased
assets as set out in Section 403 of the TCA do not have application to
any transactions entered into by the Company. [use of capital
allowances against leasing income only].
97. The provisions of Section 272 and Section 317(3) of the TCA of the
Finance ▇▇▇ ▇▇▇▇ do not apply to any expenditure incurred by the
Company. [capital allowances net of grant].
98. No circumstance exists in connection with the Company which would lead
to the withdrawal of relief for investment in research and development
as provided for in Chapter III of the Finance ▇▇▇ ▇▇▇▇, as applicable
prior to the implementation of the TCA.
99. The provisions of Section 1013 of the TCA do not apply to any
transaction entered into by the Company. [limited partnerships: relief
restrictions].
100. The Company is not liable to any claim in respect of tax due under
Sections 904, 530, 531, Part 18, Chapter 2 and Section 904 of the
TCA.[tax deductions from payments to subcontractors in the construction
industry.]
101. The Company has not entered into any transaction as a result of which
it could be assessed to tax under Part 22 Chapter 1 of the TCA [profits
from land development] or Section 35 of the Finance ▇▇▇ ▇▇▇▇.
[treatment of rental income as profits from land development].
102. The utilisation of losses incurred or charges paid by the Company is
not restricted by Section 454(1), 455 and 456 of the TCA. [10% losses
against 10% profits].
103. The amendments to Section 234 of the TCA dealing with the tax treatment
of patent royalties and related distributions do not apply to the
Company.
104. No allowance in respect of capital expenditure is or may be restricted
by virtue of the provisions of Part 9 or Section 234 of the TCA
inclusive of the Finance ▇▇▇ ▇▇▇▇. [limitation on 100% write off]
105. Neither the Company nor any of its Shareholders is affected by the
restrictions on the Business Expansion Scheme relief which are
contained in Part 16 of the TCA. [additional conditions for relief].
106. The Company has not entered into or taken any steps the object of which
is a transaction which comes or may come within Section 817 of the TCA.
[schemes to avoid liability to tax under Schedule F].
107. The Company does not beneficially own nor has it ever beneficially
owned shares to which Section 155 and Section 489 of the TCA applies or
may have applied. [removal of tax free status from certain dividends.]
108. The amounts receivable by the Company in respect of the provisions of
services and the sale of goods are regarded as amounts receivable from
the sale of goods within the meaning of Sections 443 to 450 of the TCA.
109. The tax benefit envisaged at the time of borrowing in respect of any
loan under Sections 130, 133 and 134 of the TCA will under present
legislation remain undiminished until such loan has been repaid.
[restriction on the benefit and availability of "Section 84" loans.]
-90-
110. Any machinery or plant provided for use for the purposes of the trade
of the Company after 1st April 1990 is used wholly and exclusively for
the purposes of the trade of the Company. [Sections 283, 284, 300(1),
304(3)(b), 316(3)] of the TCA].
111. All expenditure in respect of which scientific research allowances have
been claimed under Part 29, Chapter 2 TCA has been incurred solely on
scientific research within the meaning of ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇.
112. The Company has not been involved in any property, investment scheme in
respect of which the tax incentives on property investment are
restricted by Section 408 of the TCA or Part 9 Chapter 2 of the TCA.
113. The relevant rental period in respect of which a double rent allowance
is available to the Company under Section 324 and Schedule 32,
paragraph 14 of the TCA.
114. The Company has not acquired any of its own shares (Sections 173 to 186
of the TCA).
115. The restrictions of capital allowances on holiday cottages do not apply
to the Company (Section 405 of the TCA).
116. The Company has not paid dividends out of patent income, export sales,
relieved income or ▇▇▇▇▇▇▇ income to its executives (Sections 144, 145
(II) and 234(3) to (8) of the TCA).
117. No claims to relief connected with the Company has been or are
restricted by Section 1085 of the TCA.
118. The Company has not received notice under Section 70 of the Corporation
Tax Act, 1976, [▇▇▇▇▇▇▇ Airport: revocation of certain certificates].
119. The Company has not received a notice under Section 446 of the TCA,
requiring the Company to desist from an activity or revoking the
certificate. [Custom House Docks Area].
120. No reduction or withdrawal of relief has occurred under Section 222 of
the TCA [relief from Corporation Tax in respect of certain dividends
from a non-resident subsidiary].
121. The Company does not own nor has it ever owned an asset which
constitutes a material interest in an off-shore fund which is or has at
any time been a non qualifying off-shore fund within the terms of
Sections 740 to 747 of the TCA [off-shore funds].
122. The Company has not been nor is it assessable to tax under Sections
1034 or 1035 of the TCA.
123. Where the Company has made elections under Section 168 of the TCA to
account for Advance Corporation Tax on certain distributions, agreement
in writing has been received from the recipient of said distributions.
124. All group elections under Sections 22 of 457 of the TCA (lower rate of
Corporation Tax) have been made in the requisite manner by the due
dates.
125. All trading losses and excess charges on income carried forward in the
Company do not relate to activities which formed part of a trade
separate from that currently been carried on by the Company.
-91-
ADVANCE CORPORATION TAX ("ACT") AND DIVIDEND WITHHOLDING TAX ("DWT")
126. The Company has no liability to ACT under Sections 159 to 172 of the
TCA.
127. The Company has not made an election under Section 165 of the TCA.
[group dividends] and no surrender has been made under Section 166 of
the TCA [surrender of ACT.
128. The Company is not affected by the provisions of Section 167 of the TCA
[carrying forward of ACT where change in ownership of company] or
Section 170 of the TCA. [application of ACT to interest on certain
loans - transitional provisions re. S. 84 loans].
129. The Company has never incurred any expense or paid any amount in
consequence of which it has or could be treated under Sections 436 and
437 of the TCA as having made a distribution.
130. The Company has not made a distribution after 28 January 1992 out of:-
a) income deemed from exempted trading operations;
b) export sales relieved income under Sections 145 and 146 of the TCA;
or
c) income from a qualifying patent or a distribution derived from
income arising on a qualifying patent under Section 234 of the TCA.
131. The Company has no outstanding liability to DWT under Chapter 8A, Part
6 of the TCA.
132. The Company has complied with the requirements of Chapter 8A, Part 6
and Schedule 2A of the TCA.
CAPITAL GAINS TAX
133. The Company has not made any claim under Section 597 of the TCA
[replacement of business assets: roll over relief] as respects the
consideration for the disposal of or of its interest in any assets
which are defined in the said Section 597 of the TCA (amended as
aforesaid) as "the old assets" or under Section 605 of the TCA.
134. The Company has not made any such transfer as is referred to in Section
589 of the TCA [transfers at undervalue] or received any asset by way
of gift as mentioned in Section 978 of the TCA.
135. The Company has not been a party to or involved in any share for share
exchange nor any scheme of reconstruction or amalgamation such as are
mentioned in Schedule 2 of Part 19, Chapter 4 of the TCA under which
shares or debentures have been issued or any transfer of assets
effected.
136. The Company has not entered into any transaction which has, will or may
insofar as the Vendors are aware, give rise to a charge to tax under
the provisions of the CGTA or the provisions of the 1976 Act relating
to companies' capital gains or under the provisions of the Capital
Acquisitions Tax ▇▇▇ ▇▇▇▇.
137. The Company has no liability by virtue of the provisions of Section 571
of the TCA. [chargeable gains accruing on disposals by liquidators].
138. The Company has not made any claim under Section 1005 of the TCA
[unremittable profits made abroad] and no tax liability has been
deferred under any other provision of the TCA including Section 563(1)
and Section 981 [e.g. instalment sales.]
-92-
139. The Company has not entered into any transactions which give rise to a
liability under Section 90(11) and Part 20 or Part 21, Chapter 1 of The
TCA. [capital gains tax group relief].
140. There have been no claims under Sections 538 and 546 of the TCA
[capital losses allowed where no sale].
141. The Company has not entered into or taken any steps the object of which
is a transaction which comes within or might come within Section 549 of
the TCA [creation of capital gains tax losses.].
142. The amendments to Section 623 of the TCA do not apply to the
transaction [as detailed in this agreement]. [Company ceasing to be a
member of a group through a tax-avoidance motivated liquidation.]
143. The Company has not entered into any of the transactions to which Part
21 of the TCA applies.
144. The Company has not been involved in a scheme or arrangement to which
Section 543 of the TCA applies.
145. The Company does not hold or has not disposed of "new assets" under
Section 631 of the TCA [receipt of shares for transfer of trade;
deferment of capital gains tax].
STAMP/CAPITAL DUTY
146. The Company has duly complied with and has no liability under Sections
2 and ▇▇▇ ▇▇▇▇
▇▇▇. All documents in the possession or under the control of the Company
which attract stamp duty have been properly stamped.
148. No relief, exemption or reduction has been obtained from companies
capital duty or stamp duty and without prejudice to the generality of
the foregoing no relief, exemption or reduction has been obtained from
companies capital duty or stamp duty under Section 119 SDCA
[reconstruction or amalgamation] or from stamp duty under Section 79 or
80 SDCA[relief from capital and stamp duty in certain cases] which (a)
has become liable to forfeiture or (b) may be forfeited in the future.
149. All capital duty howsoever arising or payable including but not limited
to any such arising or payable on any transaction referred to in
Section 116 SDCA has been duly and promptly paid by the Company and
there is no outstanding liability therefor or interest thereon.
150. The Company has not executed an instrument in respect of which fines
could be imposed on it pursuant to Section 8 SDCA.
151. The Company is not liable for any penalty imposed by Section 15 SDCA.
152. All other capital and/or stamp duty howsoever arising or payable has
been paid by the Company and there is no outstanding liability therefor
or interest thereon.
153. The Company and its employees have not done or omitted to do anything
which could give rise to a liability on the Company for a fine,
penalty, interest, charge or additional duty under the SDCA, as
amended.
-93-
154. All capital duty and/or stamp duty payable by the Company in respect of
any of the transactions referred to in the following sections of the
SDCA (as amended) has been duly and promptly paid by the Company so
that there is no liability in respect thereof or any interest thereon.
(a) Section 58 [stamp duty on security documents];
(b) Section 116 [capital duty]; and
(c) Section 117 and 118 [stamp duty on certain Companies Registration
Office statements].
VALUE ADDED TAX
155. The Company is a registered and taxable person for the purposes of the
Value Added Tax Acts and has complied in all respects with such
legislation and all regulations made or notices issued thereunder and
has maintained full complete correct and up to date records, invoices
and other documents (as the case may be) appropriate or requisite for
the purposes thereof.
156. The Company is not in arrears with its payments or returns (including
monthly control statements and listings and other relevant documents)
or notifications under the Value Added Tax legislation regulations or
notices or liable to any abnormal or non routine payment or any
forfeiture or penalty or to the operation of any penal provisions
contained therein.
157. The Company has not been required by appropriate fiscal authorities to
give security under the Value Added Tax legislation.
158. No arrangement exists or has existed whereby pursuant to Section 8(8)
of the Value Added Tax Act, 1972 and Regulation 5 of the Value Added
Tax Regulation 1979 (as amended) the business activities of the Company
are or were deemed to be carried on by any other person or the business
activities of any other person are or were deemed to be carried on by
the Company. Notification has not been received from the Revenue under
Section 8(8) of the Value Added Tax ▇▇▇ ▇▇▇▇ including especially a
notification in the absence of a request from the taxable persons'
concerned.
159. The Company has not availed of the procedure in Section 58 of the
Finance Act, 1989 whereby a trader may account and make returns for VAT
purposes other than after each two monthly taxable period.
160. Circumstances do not exist whereby a refund of VAT due to the Company
may be deferred under the provisions of Section 201(1)(A) of the Value
Added Tax Act, 1972.
161. The Company has not waived the exemption in respect of any exempted
activity under Section 7 of the Value Added Tax Act, 1972.
CAPITAL ACQUISITIONS TAX
162. There is no unsatisfied liability to capital acquisition tax attached
or attributable to the Shares and the Shares are not subject to a
charge in favour of the Revenue Commissioners.
163. No person is liable to capital acquisitions tax attributable to the
value of any of the Shares and in consequence no person has the power
to raise the amount of such tax by sale or mortgage of or by a
terminable charge on any of the Shares.
164. The Company has not entered into or taken any steps the object of which
is a transaction which comes within Section 90 of the Finance ▇▇▇ ▇▇▇▇
[arrangements reducing value of company's shares].
-94-
WEALTH TAX
165. The Company has no outstanding liability for wealth tax under the
Wealth Tax Act, 1975.
PAYE/SOCIAL WELFARE
166. The Company is registered for the purposes of regulations made under
Sections 903, 986 of the TCA (PAYE regulations) and has complied in all
respects with such regulations and has maintained full, complete,
correct and up to date records appropriate or requisite for the
purposes thereof. In addition, the Company has deducted PAYE tax from
all payments in respect of which this tax should have been deducted.
167. The Company is not in arrears with its payments or returns required
under regulations made under Sections 903 and 986 of the TCA (PAYE
regulations) or liable to any abnormal or non-routine payment or any
forfeiture or penalty or to the operation of any penal provisions due
to non-compliance with the said regulations.
168. The Company has complied in all respects with Part II, Chapter I,
Social Welfare Consolidation ▇▇▇ ▇▇▇▇, Health Contributions ▇▇▇ ▇▇▇▇,
Youth Employment Agency ▇▇▇ ▇▇▇▇ and any regulations made under those
Acts and has maintained full, complete, correct and up to date records
appropriate or requisite for the purposes thereof and has not committed
any offence under Section 115, Social Welfare Consolidation Act 1981
and is not liable to any abnormal or non-routine payment or any
forfeiture or penalty or to the operation of any penal provisions due
to non-compliance with the said Acts and/or regulations.
169. The Company has not availed of the Income Tax (Employments) Regulations
1989 (S.I. No. 58 of 1989) whereby an employer may make remittances of
PAYE deducted from his employees at longer intervals than the normal
monthly remittance basis. [deferment of PAYE for small traders].
CUSTOMS & EXCISE
170. The Company has complied fully and accurately with all applicable
requirements of Part 11 of the Finance ▇▇▇ ▇▇▇▇ and other legislation,
statutory instruments, regulations notices and practices on or
connected with customs and/or excise.
MISCELLANEOUS
171. The Company has not been a party to or otherwise involved in any
transaction, scheme or arrangement to which any of the following
provisions could apply:-
a) Part 28, Chapter 1 and Schedule 21 of the TCA. [purchase and sale
of securities];
b) Sections 806 to 808 of the TCA. [transfer of assets abroad];
c) Section 426 and 427 of the TCA. [partnership involving companies :
effect of arrangements for transferring relief];
d) Sections 586 to 588 of the TCA. [company reconstruction and share
swap];
e) Section 930 of the TCA. [error or mistake claims];
f) Section 400 of the TCA. [Company reconstruction without transfer of
ownership];
-95-
g) Section 614 of the TCA. [Corporation Tax attributable to chargeable
gains; recovery from shareholder];
h) Section 816 of the TCA. [Taxation of shares in lieu of cash
dividends];
i) Section 1004 of the TCA [unremittable income].
172. The Company has complied in all material respects with the provisions
of the following Sections and with all regulations which have been made
by virtue thereof:-
(a) Section 980 of the TCA;
(b) Part 8, Chapter 4 of the TCA] [deposit interest retention tax].
-96-
APPENDIX ONE
DETAILS OF INSURANCE (WARRANTY 7)
-------------------------------------------------------------------------------------------------------------
POLICY NUMBER LIABILITY COVER RENEWAL DATE PREMIUM INVOICE DATE
-------------------------------------------------------------------------------------------------------------
euro
-------------------------------------------------------------------------------------------------------------
06ENP6031064 Engineering Insurance 18/06/01 452.13 27/02/02
-------------------------------------------------------------------------------------------------------------
00210269/21/01 Private Motor 11/07/01 540.20 27/02/02
-------------------------------------------------------------------------------------------------------------
06ENP6031064 Engineering Insurance 29/07/01 419.01 27/02/02
-------------------------------------------------------------------------------------------------------------
00212029/22/03 Commercial Motor 13/11/01 153.00 27/02/02
-------------------------------------------------------------------------------------------------------------
00210647/21/01 Comprehensive 17/01/02 1380.00 27/02/02
-------------------------------------------------------------------------------------------------------------
00212029/04/06 Fire/Perils 03/02/02 28,900.00 27/02/02
-------------------------------------------------------------------------------------------------------------
00212029/04/07 Loss of Profits 03/02/02 15,153.05 27/02/02
-------------------------------------------------------------------------------------------------------------
00212029/22/04 Commercial Motor 03/02/02 803.03 26/02/02
-------------------------------------------------------------------------------------------------------------
00212029/22/04 Commercial Motor 03/02/02 951.23 27/02/02
-------------------------------------------------------------------------------------------------------------
00212029/22/02 Commercial Motor 03/02/02 960.00 27/02/02
-------------------------------------------------------------------------------------------------------------
00212029/82/01 Custom Bond 03/02/02 64.76 27/02/02
-------------------------------------------------------------------------------------------------------------
00212029/04/02 Combined Liability 03/02/02 37,129.63 27/02/02
-------------------------------------------------------------------------------------------------------------
00212029/04/02 Combined Liability 03/02/02 592.44 27/02/02
-------------------------------------------------------------------------------------------------------------
06ENP6031064 Engineering Insurance 03/02/02 1571.64 27/02/02
-------------------------------------------------------------------------------------------------------------
99OP243951 Personal Accident 03/02/02 93.96 27/02/02
-------------------------------------------------------------------------------------------------------------
99OP243952 Personal Accident 03/02/02 93.96 27/02/02
-------------------------------------------------------------------------------------------------------------
00212029/22/03 Commercial Motor 03/02/02 4604.37 27/02/02
-------------------------------------------------------------------------------------------------------------
00212029/22/06 Commercial Motor 03/02/02 701.98 27/02/02
-------------------------------------------------------------------------------------------------------------
00212029/25/01 Motor Contingency 03/02/02 114.27 27/02/02
-------------------------------------------------------------------------------------------------------------
00210647/21/02 Third Party Only 03/02/02 591.00 27/02/02
-------------------------------------------------------------------------------------------------------------
00210647/21/01 Comprehensive 11/02/02 1062.00 27/02/02
-------------------------------------------------------------------------------------------------------------
00212029/21/01 Private 19/02/02 295.13 27/02/02
-------------------------------------------------------------------------------------------------------------
-97-
APPENDIX TWO
DETAILS OF EMPLOYEES (WARRANTY 8)
-98-
BIOLOGICAL LABORATORIES EUROPE LTD
EMPLOYEES AGE REPORT AS AT 23RD JANUARY, 2002
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EMP. NO. FIRST NAME SURNAME GENDER START DATE AGE
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1 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ f 07.02.94 37
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2 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ f 07.02.94 38
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3 ▇▇▇▇ ▇▇▇▇▇▇▇ f 04.10.00 24
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4 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ m 07.02.94 52
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5 ▇▇▇▇▇▇ ▇▇▇▇▇ f 24.05.99 24
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6 ▇▇▇▇▇ ▇▇▇▇▇ m 07.02.94 53
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7 ▇▇▇▇ ▇'▇▇▇▇▇▇ f 07.02.94 37
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8 ▇▇▇▇▇ ▇▇▇▇▇ f 12.05.97 37
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10 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ m 07.02.94 45
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11 ▇▇▇▇▇▇▇ ▇▇▇▇▇ f 07.02.94 39
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12 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ f 12.05.98 38
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13 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ m 12.05.98 38
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14 ▇▇▇▇▇▇▇ ▇▇▇▇▇ m 31.12.01 17
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15 ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇ f 07.02.94 36
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16 ▇▇▇▇ ▇▇▇▇▇▇▇▇ f 07.02.94 34
-------------------------------------------------------------------------------------------------------------
17 ▇▇▇ ▇▇▇▇▇▇ f 07.02.94 36
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18 ▇▇▇▇ ▇▇▇▇▇▇ f 02.04.01 51
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19 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ m 05.05.98 43
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20 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ m 02.04.01 39
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21 ▇▇▇▇ ▇▇▇▇▇▇▇ f 07.02.94 42
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22 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ f 07.02.94 58
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23 ▇▇▇▇▇▇ ▇▇▇▇▇ f 07.02.94 39
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24 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ f 07.02.94 42
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25 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ f 07.02.94 47
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26 ▇▇▇▇ ▇▇▇▇▇ m 05.01.02 18
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27 ▇▇▇▇▇▇ ▇▇▇▇▇▇ m 07.02.94 54
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28 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ f 07.02.94 42
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30 ▇▇▇▇ ▇▇▇▇ f 12.05.97 45
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31 ▇▇▇▇▇▇ ▇▇▇▇▇ m 09.04.01 44
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32 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ m 07.02.94 48
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33 ▇▇▇▇▇▇ ▇▇▇▇▇ m 22.07.96 34
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35 ▇▇▇▇▇▇▇ ▇▇▇▇▇ f 22.07.96 23
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37 ▇▇▇▇▇ ▇▇▇▇▇ m 31.08.98 24
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38 ▇▇▇▇ ▇▇▇▇▇▇▇▇ f 27.05.99 28
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39 ▇▇▇▇ ▇▇▇▇ m 12.05.98 37
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40 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ m 05.05.98 41
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43 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Jnr m 09.06.98 22
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44 ▇▇▇▇▇▇ ▇▇▇▇▇▇ f 06.07.94 49
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45 ▇▇▇▇▇▇ ▇▇▇▇▇▇ m 18.07.94 38
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46 ▇▇▇▇▇▇▇ ▇▇▇▇▇ m 23.04.97 28
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47 ▇▇▇▇ ▇▇▇▇▇▇▇▇ m 17.04.00 21
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49 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ m 09.10.00 27
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50 ▇▇▇▇▇▇ ▇▇▇▇▇▇ m 03.10.94 42
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-99-
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EMP. NO. FIRST NAME SURNAME GENDER START DATE AGE
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51 ▇▇▇ ▇▇▇▇▇▇ f 19.06.00 38
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52 ▇▇▇▇▇▇▇ ▇▇▇▇▇ f 19.06.00 27
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▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ m 05.10.94 27
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55 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ f 11.08.97 27
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56 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ f 20.06.00 38
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57 ▇▇▇▇▇ ▇▇▇▇▇▇▇ m 07.07.97 36
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58 ▇▇▇▇ ▇▇▇▇ m 28.05.01 28
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59 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ m 19.08.96 30
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61 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ f 02.09.98 54
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62 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ f 07.10.96 46
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63 ▇▇▇▇ ▇▇▇▇▇ f 07.10.96 32
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65 ▇▇▇▇▇▇▇ ▇▇▇▇▇ f 27.02.95 63
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66 ▇▇▇▇▇▇ ▇▇▇▇▇ m 09.03.95 29
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70 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ f 03.12.99 28
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71 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ f 28.05.01 19
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72 ▇▇▇▇ ▇▇▇▇▇▇ m 18.10.99 43
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74 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ m 13.10.97 47
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75 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ f 04.11.96 34
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76 Claire Ickringill f 28.05.01 20
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77 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ f 28.09.98 33
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78 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ f 04.12.95 35
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79 ▇▇▇▇▇ ▇▇▇▇▇▇▇ m 17.04.00 28
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80 Una ▇▇▇▇▇▇▇▇ f 08.12.99 32
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81 ▇▇▇▇▇▇▇ ▇▇▇▇▇ m 08.05.00 56
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82 ▇▇▇▇▇▇ ▇▇▇▇▇▇ f 29.01.96 30
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83 ▇▇▇▇▇▇▇ ▇▇▇▇▇ f 21.11.97 26
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84 ▇▇▇▇▇▇ ▇▇▇▇▇ f 11.03.96 36
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85 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ m 21.09.98 29
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86 ▇▇▇▇▇ ▇▇▇▇ m 21.03.96 27
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87 ▇▇▇▇▇ ▇▇▇▇▇ f 29.09.98 25
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88 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ f 05.06.01 19
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89 ▇▇▇▇▇▇ ▇▇▇▇▇▇ m 19.03.96 46
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90 ▇▇▇▇ ▇▇▇▇▇▇ m 02.09.96 28
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92 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ m 02.12.96 30
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93 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ m 09.12.96 54
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95 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ f 20.01.97 35
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96 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ f 02.12.97 32
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97 ▇▇▇▇▇▇▇ ▇▇▇▇▇ m 03.02.97 53
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99 ▇▇▇▇▇ ▇▇▇▇▇ m 09.10.00 37
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100 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ m 16.10.00 28
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101 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ f 18.03.97 31
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102 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ m 11.06.01 31
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104 ▇▇▇▇▇▇ ▇▇▇▇▇▇ m 01.04.97 28
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105 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ f 30.12.97 37
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107 ▇▇▇▇▇▇ ▇▇▇▇▇ m 26.06.01 23
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109 ▇▇▇▇ ▇▇▇▇▇▇ (Ballina) m 16.03.98 36
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110 ▇▇▇ ▇▇▇▇▇ m 07.07.98 55
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111 ▇▇▇ ▇▇▇▇▇▇▇▇▇ m 25.06.01 16
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112 ▇▇▇▇ ▇▇▇▇▇▇ m 18.06.01 23
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113 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ m 21.06.99 31
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114 ▇▇▇▇ ▇▇▇▇▇▇ f 28.06.99 42
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-100-
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EMP. NO. FIRST NAME SURNAME GENDER START DATE AGE
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116 ▇▇▇▇▇▇ ▇▇▇▇▇ m 08.05.00 43
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118 ▇▇▇▇▇ ▇▇▇▇▇▇▇ m 18.06.01 18
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119 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ f 31.08.98 25
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120 ▇▇▇▇▇▇ ▇▇▇▇ f 16.07.99 33
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121 ▇▇▇▇ ▇▇▇▇▇▇▇▇ f 27.10.98 29
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122 ▇▇▇▇ ▇▇▇▇▇▇▇ m 19.10.98 47
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123 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ m 02.07.01 32
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124 ▇▇▇▇▇ ▇▇▇▇▇ m 03.07.01 40
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125 ▇▇▇▇▇▇ ▇▇▇▇▇ m 03.11.98 52
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126 ▇▇▇▇▇▇ ▇▇▇▇▇▇ f 04.01.99 23
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127 ▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇ f 04.01.99 25
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128 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ f 19.01.99 43
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ f 27.01.99 44
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133 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ f 23.07.01 40
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134 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ f 19.03.99 41
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135 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ f 24.03.99 32
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136 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ f 15.03.99 40
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137 ▇▇▇▇▇ ▇▇▇ m 02.08.01 43
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139 ▇▇▇▇▇▇ ▇ ▇▇▇▇▇ m 14.07.99 47
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140 ▇▇▇▇▇▇ ▇▇▇▇▇ m 29.07.01 17
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141 ▇▇▇▇▇ ▇▇▇▇▇ f 13.08.01 54
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142 Aine Fury f 28.08.01 27
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143 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ f 06.06.00 24
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144 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ f 10.08.99 27
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146 ▇▇▇▇ ▇▇▇▇▇▇▇ m 13.09.99 37
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147 ▇▇▇▇▇ ▇▇▇▇▇▇▇ f 14.09.99 39
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148 ▇▇▇▇▇▇▇ ▇▇▇▇▇ (SPF) m 03.09.01 41
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150 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ f 08.11.99 24
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151 ▇▇▇▇▇ ▇▇▇▇▇▇ m 01.11.99 29
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152 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ m 03.09.01 30
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153 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ m 13.12.99 23
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155 ▇▇▇▇ ▇▇▇▇ ▇'▇▇▇▇▇▇ m 05.09.01 31
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156 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ m 12.09.01 31
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158 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ m 17.01.00 27
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159 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ f 31.07.00 23
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160 ▇▇▇▇▇▇ ▇▇▇▇▇ m 27.01.00 28
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162 ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ m 14.02.00 32
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163 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ f 31.07.00 25
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164 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ m 19.09.01 45
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165 Niamh O'Brien f 25.09.01 26
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167 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ f 24.03.00 46
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169 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ m 30.10.01 34
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170 ▇▇▇▇▇ ▇▇▇▇▇▇ m 12.11.01 22
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171 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ f 12.11.01 56
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173 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ m 18.06.00 17
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175 ▇▇▇▇▇ ▇▇▇▇▇▇ m 26.11.01 30
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176 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ f 04.09.00 34
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180 ▇▇▇▇▇ ▇▇▇▇▇ m 28.08.00 47
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182 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ m 18.09.00 22
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186 ▇▇▇▇▇▇ ▇▇▇▇▇▇ m 02.10.00 31
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187 ▇▇▇▇ ▇▇▇▇▇▇▇ m 02.10.00 32
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-101-
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EMP. NO. FIRST NAME SURNAME GENDER START DATE AGE
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188 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ f 25.09.00 40
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192 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ m 16.10.00 39
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199 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ f 20.11.00 27
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200 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ m 21.11.00 39
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201 ▇▇▇▇▇ ▇▇▇▇▇▇ f 21.11.00 46
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203 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ f 15.01.01 25
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205 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ f 29.01.01 21
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207 ▇▇▇▇ ▇▇▇▇▇▇▇ m 26.02.01 20
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208 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ f 12.03.01 19
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-102-
APPENDIX THREE
DETAILS OF PENSIONS (WARRANTY 10)
1. Original Trust Deed dated 1st September, 1996 made by Biological
Laboratories Europe Limited (the Principal Employer)
2. New Ireland Assurance Group Retirement Plan Policy 0000805E
3. New Ireland Assurance Group Life Assurance Policy 0000805E/L
4. New Ireland Assurance Group Retirement Plan - "Important Information
for all Policyholders"
5. New Ireland Assurance Group Retirement Plan Annual Report 1997/1998
7. List of all present members of Plan + age profile;
8. Copy Letter from Revenue Commissioners approving the Plan as an "exempt
approved scheme" under Part 30, ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇
-103-
SEVENTH SCHEDULE
(SERVICE AGREEMENTS)
-104-
EIGHTH SCHEDULE
IRREVOCABLE PROXY (CLAUSE 4.8)
__________ (the "Vendor") being the registered owner of __________ Ordinary
Shares of [euro 1] each (the "Shares") in __________ (the "Company") a company
incorporated under the laws of the Republic of Ireland hereby makes, constitutes
and appoints __________ the true and lawful attorney of the Vendor (with full
power to appoint a nominee to act in its place hereunder) from time to time to
exercise all voting and other rights attached to the Shares including but not
limited to, the rights of attending at, voting at, consenting to short notice
of, or requisitioning or joining in the requisition of any general, class, or
any other meeting of the members of the Company and without limitation to the
foregoing to exercise and enjoy other rights, privileges and powers whatsoever
attached to or in respect of the Shares and in each case with the same force and
effect as the Vendor might or could do, and the Vendor hereby ratifies and
confirms that all the said attorney or its nominee shall do or cause to be done
by virtue hereof.
This power and proxy is coupled with an interest and is irrevocable but shall
expire upon the registration in the register of members of the Company of
__________ or its nominee as owner of the Shares.
IN WITNESS whereof this irrevocable proxy has been executed as a Deed the day
and year herein contained.
Dated __________
SIGNED SEALED AND DELIVERED )
by the said )
in the presence of:- )
)
)
-105-
NINTH SCHEDULE
ENVIRONMENTAL INDEMNITY
-106-
TENTH SCHEDULE
PART A
▇▇▇▇▇ PROPERTY MAP
-107-
TENTH SCHEDULE
PART B
SECOND ▇▇▇▇▇ PROPERTY MAP
-108-
SIGNED SEALED AND DELIVERED )
by the said ▇▇▇▇▇▇▇ ▇▇▇▇▇ )
in the presence of:- )
)
)
SIGNED SEALED AND DELIVERED )
by the said ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ )
in the presence of:- )
)
)
SIGNED SEALED AND DELIVERED )
by the said ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ )
as the lawful attorney for ▇▇▇▇ ▇▇▇▇▇▇▇▇ )
in the presence of:- )
)
)
SIGNED SEALED AND DELIVERED )
by the said ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
in the presence of:- )
)
)
SIGNED SEALED AND DELIVERED )
by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
as the lawful attorney for ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
in the presence of: - )
)
SIGNED SEALED AND DELIVERED )
by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
as the lawful attorney for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
in the presence of: - )
)
SIGNED SEALED AND DELIVERED )
by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
as the lawful attorney for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
in the presence of: - )
)
-109-
SIGNED SEALED AND DELIVERED )
by the said ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ )
in the presence of: - )
)
SIGNED SEALED AND DELIVERED )
by ▇▇▇▇▇▇▇▇▇ CAULFILED )
as the lawful attorney for ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ )
in the presence of: - )
)
SIGNED SEALED AND DELIVERED )
by ▇▇▇▇▇▇▇▇▇ CAULFILED )
as the lawful attorney for ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇ )
in the presence of: - )
)
SIGNED SEALED AND DELIVERED )
by ▇▇▇▇▇▇▇▇▇ CAULFILED )
as the lawful attorney for ▇▇▇▇▇▇▇ ▇▇▇▇▇ )
in the presence of: - )
)
SIGNED SEALED AND DELIVERED )
by ▇▇▇▇▇▇▇▇▇ CAULFILED )
as the lawful attorney for ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇ )
in the presence of: - )
)
SIGNED SEALED AND DELIVERED )
by ▇▇▇▇▇▇▇▇▇ CAULFILED )
as the lawful attorney for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
in the presence of: - )
)
SIGNED SEALED AND DELIVERED )
by the said ▇▇▇▇▇ ▇▇▇▇▇ )
in the presence of: - )
)
-110-
SIGNED SEALED AND DELIVERED )
by ▇▇▇▇▇▇▇▇▇ CAULFILED )
as the lawful attorney for ▇▇▇▇ ▇'▇▇▇▇▇▇ )
in the presence of: - )
)
SIGNED SEALED AND DELIVERED )
by ▇▇▇▇▇▇▇▇▇ CAULFILED )
as the lawful attorney for ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ )
in the presence of: - )
)
SIGNED SEALED AND DELIVERED )
by the said ▇▇▇▇▇ ▇▇▇▇▇ )
in the presence of: - )
)
SIGNED SEALED AND DELIVERED )
by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
as the lawful attorney for ▇▇▇▇▇▇▇ ▇▇▇▇▇ )
in the presence of: - )
)
SIGNED SEALED AND DELIVERED )
by ▇▇▇▇▇▇▇▇▇ CAULFILED )
as the lawful attorney for ▇▇▇▇▇ ▇▇▇▇▇▇▇ )
in the presence of: - )
)
SIGNED SEALED AND DELIVERED )
by the said ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ )
in the presence of: - )
)
SIGNED SEALED AND DELIVERED )
by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
as the lawful attorney for ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
in the presence of: - )
)
-111-
SIGNED by )
for and on behalf of )
▇▇▇▇▇▇▇ RIVER EUROPE GMBH )
in the presence of:- )
)
SIGNED by )
for and on behalf of )
▇▇▇▇▇▇▇ RIVER LABORATORIES INC )
in the presence of:- )
)
-112-
ANNEXURE A
MEMORANDUM AND ARTICLES OF ASSOCIATION OF:-
BIOLOGICAL LABORATORIES EUROPE LIMITED;
ENTOMOLOGY EUROPE LIMITED;
SAOTHARLANNA BITHEOLAIOCHA IDIRNAISUINTA TEORANTA
-113-
ANNEXURE B
AUDITED CONSOLIDATED ACCOUNTS OF BIOLOGICAL LABORATORIES EUROPE
LIMITED AT 31 JANUARY, 2002
-114-
ANNEXURE C
BIOLOGICAL LABORATORIES EUROPE LIMITED
-------------------------------------------------------------------------------
Notes to the Consolidated financial Statements for the year ended 31 January,
2002
-------------------------------------------------------------------------------
1 ACCOUNTING POLICIES
1.1 ACCOUNTING CONVENTION
The financial statements are prepared in accordance with generally
accepted accounting principles under the historical cost convention
which comply with financial reporting standards of the Accounting
Standards Board.
1.2 GOODWILL
Acquired goodwill is written off in equal annual instalments over its
estimated useful economic life of 10 years.
1.3 DEPRECIATION OF TANGIBLE FIXED ASSETS
Provision is made for depreciation on all tangible assets at rates
calculated to write off the cost or valuation, less estimated residual
value, of each asset over its expected useful life and to the periods
intended to benefit from their use as follows:-
Land and buildings - 2% Straight Line
Equipment, Fixtures & Fittings - 15% Reducing Balance
Fixtures, fittings and equipment - 15% Reducing Balance
Motor vehicles - 20% Reducing Balance
Office Equipment - 15% Reducing Balance
1.4 STOCK
Stock is valued at the lower of cost and net realisable value. Cost
comprises expenditure directly incurred in purchasing stocks. Net
realisable value represents the estimated selling price less further
costs expected to be incurred to disposal. No value is attributed to
animal stocks bred in-house by the company.
1.5 FOREIGN CURRENCIES
The financial statements are expressed in Irish Pounds (IR(pound)).
Transactions in foreign currencies have been translated at the average
rate of exchange for the year. Monetary assets and liabilities
denominated in foreign currencies are translated at the rate ruling at
the balance sheet date. Foreign exchange gains /losses arise primarily
on sterling transactions and are dealt with through the Profit & Loss
Account.
1.6 TAXATION
The charge for taxation is based on the profits on ordinary activities
for the year at the manufacturing rate of 10%.
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1.7 GOVERNMENT GRANTS
REVENUE GRANTS
Revenue grants are credited to the profit and loss account of the
period to which they relate. Any revenue grants received which are
repayable are treated as deferred income in the accounts under note 24.
CAPITAL GRANTS
Capital grants once approved are included in the accounts of the period
in which the capital expenditure occurred. Such grants are released to
revenue over the period of the grant agreement to match the
depreciation of the relevant capital asset.
1.8 LEASING AND HIRE PURCHASE COMMITMENTS
Tangible fixed assets acquired under finance lease arrangements are
capitalised at cost and are depreciated over their useful lives. The
capital element of the related rental obligations is included in
creditors and the interest element of the finance lease rentals is
charged to the profit and loss account in such a manner as to give a
constant rate of charge over a period of the lease.
Operating lease rentals are charged to the profit and loss account as
they are incurred.
1.9 TURNOVER
Turnover comprises the invoice value of goods and services supplied by
the Company, exclusive of Value Added Tax.
1.10 PENSIONS
The Company made payments to a defined contribution pension fund on
behalf of certain employees. Contributions are charged to the profit
and loss account in the year in which they fall due.
1.11 TAXATION
Full provision in respect of deferred taxation is made for all timing
differences that have originated but not reversed by the balance sheet
date. Deferred taxation is not recognised on permanent differences.
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