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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM 10-K
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1999
Commission File No. 0-27698
CHIREX INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 04-3296309
(State or other jurisdiction of (IRS Employer Identification Number)
incorporation or organization)
300 Atlantic Street, Suite 402
Stamford, Connecticut 06901
(Address of principle executive office) (Zip Code)
(203) 351-2300
(Registrant's telephone number, including area code)
TITLE OF EACH CLASS SECURITIES
REGISTERED PURSUANT TO SECTION 12(g)
OF THE SECURITIES EXCHANGE ACT NAME OF EXCHANGE
OF 1934 ON WHICH REGISTERED
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Common Stock, $.01 par value The Nasdaq Stock Market's National Market
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Securities registered pursuant to Section 12(b) of the Securities Exchange Act
of 1934: none.
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.Yes [X] No [_]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to
the best of the registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K.[X]
The aggregate market value of the voting stock held by non-affiliates of the
registrant was approximately $361,189,427 as of March 2, 2000.
APPLICABLE ONLY TO CORPORATE REGISTRANTS
As of March 2, 2000 there were 15,178,290 shares outstanding (excluding as
of such date 2,476,724 shares of common stock issuable upon exercise of
options with a weighted average price of $18.38 per share).
DOCUMENTS INCORPORATED BY REFERENCE
Items 7 and 8 of Part II incorporate by reference the Registrant's 1999
Annual Report to Stockholders. Part III incorporates by reference the
Registrant's Proxy Statement for the 2000 Annual Meeting of Stockholders.
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CHIREX INC.
TABLE OF CONTENTS
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PART I
ITEM 1. BUSINESS....................................................... 1
ITEM 2. PROPERTIES..................................................... 23
ITEM 3. LEGAL PROCEEDINGS.............................................. 23
ITEM 4. SUBMISSIONS OF MATTERS TO A VOTE OF SECURITY HOLDERS........... 23
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS........................................................ 24
ITEM 6. SELECTED HISTORICAL FINANCIAL DATA............................. 25
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS
AND FINANCIAL CONDITION........................................ 25
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.................... 26
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE........................................... 26
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT............. 27
ITEM 11. EXECUTIVE COMPENSATION......................................... 27
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT. 27
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS................. 27
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON
FORM 8-K....................................................... 27
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PART I
ITEM 1. BUSINESS
General
ChiRex Inc., The Drug Substance Company, is an integrated pharmaceutical
outsourcing company that provides contract process research and development
(contract chemistry) and contract manufacturing of active pharmaceutical
ingredients. The Company owns a widely-applicable portfolio of proprietary
process chemistry patents. The Company operates through two operating
divisions, the development division and the manufacturing division. The
Company's development division is engaged in every aspect of drug substance
development from discovery support before submission of IND (Investigational
New Drug) and process research and development and manufacture of active
ingredients for clinical trials. The Company's manufacturing division produces
bulk active pharmaceutical ingredients. Together, the two divisions span all
of the steps needed to prepare the Drug Substance subsection of a FDA New Drug
Application. The range of services provided by the company include:
. proprietary process research to create and produce previously
unaffordable chiral materials using the Company's patented process
chemistry technologies, and production of unique proprietary building
blocks that aid in the drug discovery process;
. customer-sponsored innovative process research to solve process
chemistry challenges using either traditional chemistry techniques or
proprietary techniques;
. process research and development including discovery support, route
design, route development and synthesis of pre-clinical and clinical
molecules;
. scale-up of clinical trial quantities of active pharmaceutical
ingredients including laboratory synthesis, validated process
demonstration, analytical methods development, hazard evaluation, and
pilot plant production; and
. production of commercial-scale active ingredients for launch and later
for sale in all markets globally.
We are one of only a few outsourcing companies to offer all of these
services in-house in addition to offering proprietary process technologies. By
offering integrated services, we are able to minimize the risks, costs and
time associated with our customers bringing new drugs to market.
Since completing our initial public offering in March, 1996, we have taken
steps to become a high-quality, full-service outsourcing company, structured
into a development division and manufacturing division, and complemented by
our proprietary process chemistry technologies. For example, we (i) optimized
our Dudley manufacturing facility and disposed of non-core products, primarily
our acetaminophen business; (ii) opened our development division's research
and development laboratories and an associated pilot plant at the Dudley site,
which currently employs 31 scientists, and which has allowed us to develop
products successfully for our customers, many of which products are based on
our proprietary process chemistry technologies; (iii) purchased a cGMP
manufacturing facility in Annan, Scotland, in the fall of 1997 from
GlaxoWellcome ("Glaxo") and entered into a five-year supply agreement with
Glaxo; (iv) redesigned, reconfigured and upgraded the Annan facility to
manufacture products under the Glaxo supply agreement and to increase the
general flexibility of the facility to produce products for other leading
pharmaceutical companies; (v) opened our development division research and
development laboratories in Boston, Massachusetts, which as of December 31,
1999 employed 16 research scientists; and (vi) acquired the assets of Cauldron
Process Development in Malvern, Pennsylvania, which as of December 31, 1999
employed 13 research scientists and operates a pilot plant utilizing 4
reactors having a total capacity of 220 gallons. In addition, during 2000 we
plan to expand our development division facilities in Boston and Malvern, and
build a pilot plant facility at our Annan, Scotland facility. This will allow
a total complement of over 100 research scientists in our development
division. The expansion to the Malvern site will also increase the pilot plant
to 6 reactors having a total capacity of 520 gallons. These expansions will
further increase our capacity to assist our customers in discovery support,
route design, route development and synthesis of clinical and pre-clinical
molecules. The expansions also increase our ability to develop further our
proprietary technologies.
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ChiRex conducts its operations in four FDA cGMP facilities in Boston,
Massachusetts, Malvern, Pennsylvania, Dudley, England and Annan, Scotland.
Currently, we manufacture in excess of 50 products on a commercial scale. We
have approximately 45 U.S. patents and several patent applications with
respect to our technologies. Our customers include 30 of the top 40 global
pharmaceutical companies and more than 25 smaller pharmaceutical companies.
Industry Trends
Recent trends in the industry are resulting in the increased outsourcing of
drug design, development and manufacturing. Pharmaceutical companies are under
pressure to deliver new drugs to market in the shortest period of time in
order to capture market share, accelerate the realization of revenues and
maximize the impact of the limited life of patent protection. As a result,
they have increasingly focused their resources on the discovery of new drugs
and sought to outsource more and more services. We believe this trend towards
outsourcing drug design, development and manufacture will continue for the
following reasons:
. the development of new technologies that have resulted in the
identification of a larger number of promising therapeutics, increasing
the demand for the services which we offer;
. the pressure to reduce drug development time in order to enhance
competitive position and maximize return on investment;
. the continuing cost containment pressures in the consumer market, led by
health maintenance organizations and other health insurance
intermediaries, resulting in pharmaceutical companies shifting more of
their fixed cost base to variable cost alternatives through outsourcing;
. the increasing complexity of the chemical synthesis used to produce new
drugs, particularly in commercial quantities; and
. the growth of the biotechnology industry, in which many companies do not
have the chemical expertise and capabilities needed to conduct their own
process development, scale up work or commercial scale manufacture.
Business Strategy
Our strategy is to increase shareholder value by capitalizing on our
technological strengths and our process research and development and
manufacturing capabilities to be the preferred partner to major pharmaceutical
and smaller pharmaceutical companies in discovery support, route design, route
development and synthesis of pre-clinical and clinical molecules and for the
production of commercial-scale active ingredients for launch and later for
sale in all markets globally. The key elements of our strategy are:
Provide Integrated Services/"One Stop" Shopping
We believe that significant opportunities exist for a company that provides
a broad range of outsourcing services. With the growth of our development
division, we are now able to offer our customers a complete and integrated
package of services throughout the life cycle of a product. By providing
process research and development expertise, pilot plant capacity and full-
scale manufacturing facilities, we offer a convenient and seamless solution to
our customers' outsourcing needs. Our integrated approach offers technical and
commercial synergies and the potential to reduce the time, costs and risks
associated with the development of new drugs.
Commercialization of Proprietary Technology
Our development division assists customers in the early stages of process
development to devise manufacturing processes that will be viable and cost
efficient for scale-up and full-scale commercial production.
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The development division relies on traditional chemistry technologies and our
proprietary technologies to solve process chemistry challenges for our
customers and to reduce drug development time. The development division:
. advances the commercialization of a variety of our technologies, with an
emphasis on our hydrolytic kinetic resolution process technologies
developed by Professor Eric N. Jacobsen which enables the production of
single-isomer pharmaceutical chiral intermediates;
. provides process research and development services, including discovery
support, route design, route development and synthesis of pre-clinical
and clinical molecules;
. serves as a source of new commercial-scale product opportunities for our
manufacturing division;
. develops and markets non-regulated, proprietary chiral building blocks
to innovative pharmaceutical companies to save them time and money and
to infuse the benefit of our technologies into their development
pipelines;
. serves as a source of licensing revenues derived from our technologies
where our customer has other manufacturing capacity, the technology is
being used for non-pharmaceutical purposes, or capacity constraints
prevent us from offering manufacturing services; and
. enhances our presence in the United States, the world's largest
pharmaceutical market.
The development division's research scientists in Boston are under the
direction of Professor Eric N. Jacobsen, Professor of Chemistry and Chemical
Biology at Harvard University. Professor Jacobsen is a member of our Board of
Directors and Scientific Advisory Board.
Focus on the Manufacture of High-Margin, Value-Added Products
We intend to continue focusing on the manufacture of high-margin, highly-
engineered, value-added products using a variety of chemistry technologies.
Because of the high level of development engineering and synthesis design
required for these products and because these products must be made in
strictly controlled, FDA inspected facilities, their manufacture requires the
expertise of a company such as ours. These products offer the potential for
higher margins than specialty chemicals and non-regulated fine chemicals. In
addition, once full production of these products is commenced, the commercial
relationship for such products is generally stable due to the significant
costs and regulatory impediments of transferring production to a new facility.
Continue Developing Significant, Long-Term Relationships with Industry
Leaders
We intend to expand our customer base by developing significant, long-term
relationships with new pharmaceutical companies. We believe that the
development division is a valuable platform for forging new relationships as
customers seek the benefits of our process chemistry expertise and proprietary
technologies. In addition, our manufacturing division has substantial
available capacity which we are marketing to potential customers.
Pursue Selective Acquisitions, Affiliations and Expansions
We intend to expand our business activities through selective acquisitions,
strategic affiliations and internal expansion, including:
. in the technology area, we intend to seek opportunities to acquire or
license complementary technologies and to collaborate or form alliances
with third parties with valuable, complementary technologies;
. we intend to pursue strategic acquisitions to extend our geographical
presence and customer base by acquiring or building development
capability in North America and Continental Europe; and
. we intend to double the capacity of our current development division
operations at Boston and Malvern, and build a pilot plant at our Annan
site.
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Competitive Strengths
We believe we maintain a strong competitive position in our industry. This
is attributable to a number of factors, including:
Full Complement of Integrated Services
We believe that our ability to address our customers' outsourcing needs at
each stage in the chemical development process of a molecule allows us to
compete effectively for the entire range of outsourcing arrangements that
customers require. In addition, we believe we have a competitive advantage
because we can internally transfer technology throughout the product
lifecycle, saving time and money and reducing risk. Our ability to provide
services at the earliest stages of the drug development process should give us
a competitive advantage during clinical trial and full scale manufacturing.
Leading Proprietary Technologies
In addition to our expertise in traditional chemistry technologies, we hold
numerous licenses and patents in chiral and non-chiral process chemistries,
including an exclusive license with Harvard University for the application of
hydrolytic kinetic resolution. Based on industry estimates, more than two-
thirds of pharmaceuticals currently in development are chiral molecules. We
believe that utilizing our proprietary technologies, in particular our chiral
technologies, in the production process may allow us to achieve higher margins
than possible with non-proprietary technologies. Also, we have found that our
customers value suppliers who invest in technology as such investment allows
customers to reduce their drug development time and provides unique solutions
to their process development challenges. In addition, we can leverage our
proprietary technologies to forge relationships for our high-margin
manufacturing operations.
World-Class Manufacturing Facilities
Since January 1, 1996, we have invested over $275 million to acquire and
upgrade our two world-class cGMP manufacturing facilities. The manufacturing
operations at Dudley are flexibly designed so that they can be used for a
large number of products. The Annan facility is a modern state-of-the-art
pharmaceutical manufacturing facility with substantial space to expand future
production.
Relationships with Industry Leaders
Our reputation for high quality contract process research and development,
contract manufacturing and innovative proprietary technologies have enabled us
to establish relationships with leading pharmaceutical companies. Our
customers include 30 of the top 40 global pharmaceutical companies and more
than 25 smaller pharmaceutical companies.
Barriers to Entry
We believe there are significant entry barriers to our industry, including:
. access to and expertise in leading manufacturing and process
technologies and the ability to manage the complex regulatory regime
governing new product development; and
. the significant cost and lead time necessary to construct state-of-the-
art pilot plant facilities, such as at our Malvern and Dudley sites, and
to qualify cGMP commercial scale manufacturing facilities, such as at
our Annan and Dudley sites.
In addition, world-class facilities typically require experienced management
and highly trained technical personnel familiar with specific production
facilities and processes. Pharmaceutical companies are generally reluctant to
outsource their needs to companies that do not have production facilities or a
staff with a proven track record. We believe that our management and technical
personnel, almost all of whom have substantial experience at FDA inspected
cGMP facilities, are experienced and highly trained to meet these needs.
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Business
We provide a broad range of outsourcing services to pharmaceutical
companies, from the early stages of post-discovery drug substance development
to manufacturing of bulk active pharmaceutical ingredients. By providing
process research and development expertise, pilot plant capacity and full
scale manufacturing capabilities, we are able to offer our customers a
complete and integrated package of services throughout the product life cycle.
The diagram below sets forth the different phases of drug discovery and
development and indicates the various services which we offer as our customers
move through the drug development process:
PRODUCT DEVELOPMENT LIFE CYCLE
Pre-
Discovery clinical IND Phase I Phase II Phase III NDA Commercialization
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PROCESS RESEARCH AND DEVELOPMENT
. Proprietary technology to speed process research
. Contract process research and development
. Technology licensing
. cGMP small scale capability (0.1-15 Kilograms)
. cGMP pilot plant (220 gallon total capacity)
. Analytical methods development
SCALE-UP PLANT PRODUCTION
. Scale-up synthesis
. Hazard evaluation
. cGMP pilot plant (10-1,000 kilograms)
. Analytical validation for cGMP
. Drug master file preparation
. In-house regulatory expertise
. Supply clinical trial quantities of pharmaceutical active ingredients
COMMERCIAL SCALE PRODUCTION
. 2 large scale cGMP manufacturing facilities
. Multi-hundred metric ton capability
. Process and plant design
. Multi-step complex organic synthesis at scale
. Drug master file and support for new drug applications
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Product Development Life Cycle
Discovery
The initial challenge in the drug development process is discovery of a
compound which may have a therapeutic effect for a particular disease. Our
pharmaceutical customers identify a lead compound which interacts with certain
biological targets, such as an enzyme or other protein, which are associated
with a disease. The discovery process involves screening or testing multiple
chemical compounds and their interactions with biological targets to identify
the most promising lead compounds for further study.
As pharmaceutical companies face increasing pressure to bring new drugs to
market in the shortest period of time, our customers have focused their
efforts and resources on the discovery stage. As a result, these customers
have increasingly sought to outsource services in the subsequent stages of the
drug development process to companies such as ours to minimize costs and
development time.
Pre-Clinical
After a lead compound is identified and selected in the discovery phase, the
compound is evaluated for efficacy and safety during pre-clinical tests on
animal models.
While a product progresses through pre-clinical trials, customers require
process research and development services to determine a cost-effective, safe
and timely scale-up of a compound as it progresses from the laboratory to
pilot plant and ultimately to commercial scale manufacturing. Process research
and development seeks to provide a simple, economic and non-hazardous route to
production of a lead compound at the required scale. In addition, customers
often require small scale cGMP capabilities to produce quantities of a product
for clinical trials and analytical methods development for regulatory and
quality control purposes.
Customers are increasingly seeking outsourcing companies, such as ours,
which can provide seamless technology transfer throughout the development
process to push a product through the development life cycle as rapidly as
possible. As a result, process development and other related services provided
by our development division can be a valuable source for developing
relationships with customers for pilot plant production and ultimately
commercial scale manufacturing by our manufacturing division. In addition,
once a company has received certification for a product by the applicable
regulatory authority, it is advantageous for the customer to maintain the
relationship with such company. Accordingly, expertise in process development
can solidify a relationship with a customer early in the product development
timeline and help secure longer term commercial-scale supply arrangements.
IND/Phase I/Phase II/Phase III/NDA
An investigational new drug application ("IND") is one of the first steps in
the clinical trial phase of drug development. Clinical trials are divided into
three investigational phases which test the use of a drug in humans. Phase I
tests the drug for safety; Phase II tests the drug for efficacy and safety in
a relatively small sample of patients; and Phase III tests the drug for
efficacy in a larger sample of patients.
Upon completion of the clinical trial phases, a new drug application ("NDA")
is prepared which bridges the development process from clinical trial to full
scale commercial manufacture. The Chemistry, Manufacturing and Controls
("CMC") section of an NDA fully describes the composition, manufacture and
specifications of the drug substance, including its physical and chemical
characteristics and stability. Together, our development and manufacturing
divisions span all of the steps needed to prepare the CMC drug substance
subsection of an NDA.
As a drug proceeds through the clinical testing phases, it is crucial that
its production conform with appropriate cGMP standards. In addition, the
process developed in the laboratories needs to be validated at a larger scale
to establish that it can be consistently produced at the required
specifications as it is scaled-up to
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commercial quantities. These steps are often conducted in a pilot plant
environment which can provide hazard evaluation, analytical method validation,
identity and purity testing as well as significant regulatory expertise and
documentation services.
Commercialization
After a drug has been approved, commercial quantities of the drug are
manufactured and marketed for commercial sale. Pharmaceutical companies
frequently outsource the manufacture of bulk intermediates and pharmaceutical
active ingredients. Companies which provide such services must have facilities
that conform to strict guidelines and can pass FDA inspections. In addition,
manufacturers of pharmaceutical intermediates and active pharmaceutical
ingredients require significant expertise due to the high level of development
engineering and synthesis design required for these products.
Relationship with Glaxo
In the fall of 1997, we purchased Glaxo's pharmaceutical production facility
located in Annan, Scotland, for approximately (Pounds)41 million,
(approximately $68 million, assuming an exchange rate of $1.66 per
(Pounds)1.00) including payment for certain working capital. We entered into a
supply agreement with Glaxo to supply certain pharmaceutical intermediates and
active ingredients over the five-year life of the contract. In connection with
the Glaxo supply agreement, we invested approximately (Pounds)18 million
(approximately $30 million, assuming an exchange rate of $1.66 per
(Pounds)1.00) to remodel two of the production buildings to accommodate
multiple products. Prior to its acquisition by us, the Annan facility was one
of only four primary facilities that Glaxo operated in the United Kingdom. In
connection with the acquisition of the Annan facility, we hired most of the
facility staff formerly employed by Glaxo.
The Glaxo supply agreement provides for the purchase by Glaxo from us of
intermediates and active ingredients. In collaboration with Glaxo, we
undertook to install production capacity for the main products covered by the
Glaxo supply agreement in excess of the contracted quantities.
Under the Glaxo supply agreement, Glaxo agreed to purchase a certain amount
of products each year from us on a firm commitment basis. If Glaxo does not
purchase such products from us in the amount of such firm commitment (other
than as a result of our default), it will pay to us the Added Value of such
products. As defined in the Glaxo supply agreement, "Added Value" means the
difference between the price at which we are to sell the product to Glaxo and
the cost of the raw materials and variable costs directly incurred in the
manufacture, packaging and waste disposal processes. The Glaxo supply
agreement provides that if any amounts are owed by Glaxo under such provision,
we will use reasonable endeavors to evaluate in good faith the possibility of
manufacturing additional products or volumes for Glaxo on the same terms.
In addition to products to be supplied by us on a firm commitment basis, the
Glaxo supply agreement provides that certain products will be purchased by
Glaxo on an intended purchase basis ("Intended Quantity Products"). In the
event that such products cannot be purchased by Glaxo in the volumes specified
or at all due to lack of regulatory approval or market uncertainties in
relation to such products, the Glaxo supply agreement provides that Glaxo will
use its best endeavors to purchase certain specified replacement products in a
volume which will result in the equivalent Added Value to us.
During November 1999, Glaxo provided us their preliminary forecast for 2000
demand under the supply agreement. A final forecast was provided on December
1, 1999. The forecast provides that Glaxo will not purchase any Intended
Quantity Products during 2000. Glaxo and we have had numerous meetings and
correspondence to address Glaxo's obligation to use best endeavors to replace
the Intended Quantity Products with products of equivalent Added Value. Glaxo
has agreed to undertake a review by June 30, 2000 "to identify opportunities
to purchase products in 2000 to compensate ChiRex in accordance with Glaxo's
contractual obligations." We can not assure you that Glaxo will place orders
with us to replace the Intended Quantity
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Products with products of equivalent Added Value during 2000, or thereafter.
We can not assure you that Glaxo will comply with its contractual obligations
under the supply agreement.
The Glaxo supply agreement also contains certain profit sharing terms which
provide that if orders in excess of volumes of products to be supplied on a
firm commitment basis and an intended purchase basis are placed, then any
Added Value to which we shall be entitled shall be shared between us and Glaxo
in accordance with the terms of the agreement.
We have agreed under the Glaxo supply agreement to have sufficient capacity
to manufacture at least 10% in excess of orders placed by Glaxo under the
terms of the Glaxo supply agreement. The products to be supplied by us under
the Glaxo supply agreement may be manufactured at either the Dudley or Annan
facilities.
The initial term of the Glaxo supply agreement is through December 31, 2002,
and is automatically renewed for successive periods of twelve months unless
terminated by either party at the end of its initial term or at the end of any
renewal period by 24 months prior written notice. The Glaxo supply agreement
may also be terminated upon the occurrence of an insolvency event by either
party, a material breach of the terms of the agreement (subject to certain
cure periods), or upon 60 days notice by Glaxo if at any time prior to
December 31, 2002, there occurs a Change of Control (as such term is defined
in the Glaxo supply agreement) of ChiRex (Annan) Limited.
The aggregate sales volume under the Glaxo supply agreement during 1998 and
1999 was approximately $43 million and $82 million, respectively. The forecast
supplied by Glaxo on December 1, 1999 contemplates sales volume under the
Glaxo supply agreement during 2000 of approximately $53 million. We also
perform additional services and manufacturing for Glaxo that are separate from
the Glaxo supply agreement.
Services Offered
We believe that we are one of only a few companies to offer an integrated
package of services from post-discovery to full-scale manufacturing of active
pharmaceutical ingredients. Through the interaction of our development
division and manufacturing division, and supported by our proprietary
technologies, we offer a convenient and seamless solution to our customers'
outsourcing needs.
ChiRex Development Division, Boston
We commenced operations at our Boston, Massachusetts site in April 1999. As
of December 31, 1999, the Boston site included 11,500 square feet of
laboratories and employed 16 research scientists. The Boston site is currently
undergoing an expansion to 15,000 square feet of laboratories to accommodate
up to 32 research scientists and a 50 liter glassware scale-up suite.
Professor Eric N. Jacobsen, Professor of Chemistry and Chemical Biology at
Harvard University and inventor of some of our leading proprietary
technologies, is the scientific director of the Boston site.
ChiRex Development Division, Malvern
We acquired the Malvern, Pennsylvania site in May 1999. As of December 31,
1999, the Malvern site included 23,460 square feet of laboratories and pilot
plant facilities and employed 13 research scientists. The Malvern site is
currently undergoing an expansion to accommodate up to 28 research scientists.
The Malvern facility operates a pilot plant which, as of December 31, 1999,
included 4 reactors having a total capacity of 220 gallons. The Malvern pilot
plant is currently undergoing an expansion to 6 reactors having a total
capacity of 520 gallons. The pilot plant expansion includes infrastructure
improvements to allow multiple projects to be handled simultaneously.
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The Boston and Malvern sites focus on discovery support, route design, route
development and synthesis of pre-clinical and clinical molecules. These sites
offer various contract process research and development services under cGMP
guidelines, including: (i) contract process development; (ii) custom
synthesis; (iii) contract analytical development; and (iv) process research
utilizing our proprietary technologies. These sites also serve as a source of
licensing revenue derived from our technologies.
ChiRex Development Division, Dudley
Opened in 1996, the development division's facility in Dudley, England
consists of research and development laboratories and an associated pilot
plant. The facility serves customers with early-stage route design and route
development of molecules, and prepares chemical processes for commercial
manufacturing by conducting economic, hazard and engineering evaluations. The
Dudley development facility can also produce clinical trial material
quantities. These quantities are produced in the facility's pilot plant, which
allows for rapid scale-up from 50-1,000 kilograms under cGMP conditions.
The Dudley development facility is staffed with over 31 scientists,
including experts in process development, analytical development and hazard
evaluation. These scientists manage the product between laboratory production
and commercial scale manufacture. During this intermediate process and before
commencing commercial manufacture, each scientific team carefully considers
the safety, speed and cost of each project. The Dudley development facility
uses small-scale (25L and 50L) equipment to pilot plant size reactors to
replicate processes which assists in evaluations and seamless technology
transfer. With safety a primary consideration, the hazard evaluation
laboratory enables us to analyze each process before it is scaled up in the
pilot plant. Equipment in the hazard evaluation laboratory includes RC1
calorimeters, ARC and vent sizing equipment, DSC and other standard hazard
evaluation equipment.
ChiRex Development Division, Annan
The development division has initiated construction of a pilot plant at our
Annan, Scotland site. This facility will provide a one-tenth minimum scale
replica of the commercial scale equipment utilized on the Annan site. The
pilot plant will manufacture clinical trial quantities and enable early
qualification of Annan as a site of manufacture with the FDA and relevant
regulatory bodies while the detailed design of the commercial scale equipment
runs in parallel. The pilot plant is scheduled to be completed during 2000,
and will be supported by 6 chemists.
ChiRex Development Division Services
Process development and custom synthesis services offered by the development
division include:
. synthesis route selection;
. process research to make finished quality products;
. production of samples of material and supply of small quantities;
. production of samples of material and supply of clinical quantities;
. development work to generate a technology package to allow us or our
customer to manufacture at scale; and
. transfer of technology to the manufacturing location.
Analytical development services offered by the development division include:
. test method development and validation;
. quality control and release testing;
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. high performance liquid and/or gas chromatography for the separation of
enantiomers and identification of impurities; and
. nuclear magnetic resonance services.
Process research utilizing our proprietary technology includes:
. process development and sample quantities to qualify with customers;
. scale-up to 50 liter scale at our Boston facility, scale-up to 100
gallon scale at our Malvern facility, or kilogram to ton production at
our cGMP manufacturing facilities in Dudley, England and Annan,
Scotland; and
. validated scaled technology transfer package.
ChiRex Development Division, Projects Utilizing Our Proprietary Technologies
The following table sets forth the number of projects worked on by our
development division during the past three years and the number of those
projects which incorporated our proprietary technologies:
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1997 1998 1999
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Projects (1)................................................ 53 48 85
Projects with ChiRex technologies (1)....................... 22 24 37
Percentage of projects with ChiRex technologies (1)......... 41.5% 50.0% 44%
</TABLE>
- --------
(1) A project can span more than one fiscal year.
Of the projects that include our proprietary technologies, the following
table sets forth the number of projects sponsored by customers or by us:
<TABLE>
<CAPTION>
1997 1998 1999
---- ---- ----
<S> <C> <C> <C>
Customer sponsored............................................ 15 12 14
ChiRex sponsored.............................................. 7 12 23
--- --- ---
Total projects with ChiRex technologies....................... 22 24 37
=== === ===
</TABLE>
Development division projects generated revenues for the years ended
December 31, 1997, 1998 and 1999 as follows (dollars in thousands):
<TABLE>
<CAPTION>
1997 1998 1999
------- ------- -------
<S> <C> <C> <C>
Product development revenues (2)(3)............. $10,566 $12,947 $23,183
Percentage of total revenues.................... 11.2% 10.8% 15.8%
</TABLE>
- --------
(2) The revenue on a particular project may be recognized over more than one
fiscal year.
(3) Excludes a product that was manufactured in our Dudley pilot plant but in
sufficient quantities to be treated as a commercial product.
ChiRex Manufacturing Division, Dudley and Annan Facilities
Our manufacturing division operates two cGMP facilities, one in Dudley,
England, and the other in Annan, Scotland. Our manufacturing facilities
specialize in the scale-up and commercial manufacture of intermediates and
pharmaceutical active ingredients under cGMP guidelines. Whether we design the
initial synthesis or evaluate and adapt a customer's process to our regulatory
and efficiency standards, we produce intermediates and pharmaceutical active
ingredients in a highly-regulated environment. Our facilities and processes
used in the manufacture of products for clinical use or for sale in the United
States must be operated in conformity with cGMP guidelines and must pass
inspections by the FDA. We also support the commercial production process with
regulatory support, including NDA and drug master file assistance.
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The Dudley facility specializes in the scale-up and commercial-scale
production of intermediates and active pharmaceutical ingredients. The
facility is located on 45 acres and consists of a former Sterling Winthrop
facility with a production capacity of 650 cubic meters (over 160,000
gallons). There are two main production buildings at the Dudley site which
have a variety of advanced equipment to provide a flexible FDA-inspected, cGMP
and ISO 9002 certified manufacturing base. These buildings provide flexible,
multi-process facilities (including a segregated bulk pharmaceutical
purification suite fitted with reactors, isolation and finishing equipment)
capable of performing an extensive range of chemical transformations.
The Annan facility, one of the world's best-equipped cGMP facilities,
specializes in the production of bulk pharmaceutical active ingredients. The
facility is located on a 154-acre site and was a former Glaxo facility. The
site encompasses three main production buildings, as well as a fourth
production building currently being remodeled to house the Annan pilot plant
and support 6 associated chemists. Two of the main production buildings,
operated as a unit since 1980 to produce large volumes of an anti-hypertensive
drug, have been extensively remodeled since being acquired in the fall of 1997
at a cost of $30.0 million to accommodate multiple products. Special features
of these two buildings include a computerized process control system, a single
fluid heat transfer system and a totally enclosed plant with bulk handling
systems (for both powders and liquids) to ensure safe processing of chemicals
and solvents. The third main production building, built in 1990 at a cost of
$60.0 million, comprises nearly half the site capacity and is available for
future contract manufacturing demand.
Product Portfolio
Commercial Products
During 1999 we manufactured more than 50 products on a commercial scale.
Approximately 89% of our product portfolio is pharmaceutical products with the
remaining 11% consisting of fragrance and flavor, agrichemical and polymer
products. Nearly all of the products produced or under development by us are
governed by secrecy agreements which contain, among other things, restrictions
on the disclosure of the customer, the product and the therapeutic indication.
Our customers' pharmaceutical products are used in the treatment of, among
others, cancer, cardiovascular disease, AIDS, urinary tract infections and
high cholesterol.
Manufacturing and Process Development Technology
We have developed expertise in the large-scale operation of many classical
chemical transformation technologies and have the exclusive right to use our
proprietary technologies in a defined field on a perpetual basis. Our
proprietary technologies consist of proprietary synthesis and separation
technologies used in the manufacture of single-isomer and non-single isomer
products. The cost and time of pharmaceutical product development has become
significantly greater for compounds developed as racemic mixtures as compared
to single-isomer chemicals, creating a demand for new processes and process
technologies that can produce single-isomer drugs quickly, efficiently and
economically.
We have approximately 45 U.S. patents and several patent applications with
respect to our proprietary technologies. In addition, we have accumulated
experience in the effective management of the risks inherent in handling toxic
or hazardous raw materials and products and in carrying out hazardous chemical
reactions. Our expertise allows pharmaceutical companies to have complex
multi-step procedures carried out at a single site, which increases the
ability of such companies to maintain confidentiality, product supervision and
management.
Our proprietary technologies consist of a broad platform of asymmetric
synthesis and resolution technologies, which we believe provide multiple
manufacturing routes to produce single-isomer chiral pharmaceutical
intermediates and active ingredients. We select the most appropriate
technology for a particular
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<PAGE>
application based on several factors, including the cost of any required
catalyst and the availability and cost of the starting materials. The
following table summarizes certain aspects of our proprietary technologies:
<TABLE>
<CAPTION>
Development
-------------------------------
Method of
Technology Use Phase Manufacture
---------- ------------------------ ---------- --------------------
<S> <C> <C> <C>
Hydrolytic Kinetic Catalytic ring opening Commercial Asymmetric Synthesis
Resolution............. of epoxides to make
chiral epoxides and
diols
Asymmetric Catalytic asymmetric Commercial Asymmetric Synthesis
Dihydroxylation........ reaction to make chiral
diols using Sharpless
catalyst
Asymmetric Epoxidation.. Catalytic oxidation to Commercial Asymmetric Synthesis
make chiral epoxides
using Jacobsen catalyst
Enzymatic Resolution.... Enzymatic Commercial Enzymatic Resolution
biotransformation
Diastereomeric Resolution by Commercial Chemical Resolution
Crystallization........ crystallization
Asymmetric Reduction.... Catalytic reduction to Laboratory Asymmetric Synthesis
make chiral alcohols
Metal-Catalyzed Aromatic
Carbon-Heteroatom
Bonding- Forming Manufacture of aromatic Laboratory Aromatic Coupling
Technologies (ABT)..... amines, indoles and
diphenyl ethers
Asymmetric Aminoacid Manufacture of Laboratory Asymmetric Synthesis
Technology............. aminoacids and
derivatives
</TABLE>
Single-isomer chiral chemicals are generally manufactured by asymmetric
synthesis or resolution. In asymmetric synthesis, the single-isomer form of
the drug or intermediate is synthesized directly from a precursor compound
that is achiral. With resolution, the single-isomer is separated from a
racemic mixture. Asymmetric synthesis is often the preferred method of
producing single-isomer drugs or intermediates due to potential higher
attainable yields. Due to the technical challenges of developing a cost-
effective process, however, there are few asymmetric synthesis processes used
at commercial scale.
We continue to improve our technology position through significant research
and development expenditures, licensing third party technology and by
maintaining close relationships with our Scientific Advisory Board and
institutional research partners.
In January 1997, we entered into an exclusive license agreement with Harvard
University for the application of hydrolytic kinetic resolution technology to
a wide range of pharmaceutical products. Hydrolytic kinetic resolution is a
technology developed by Professor Eric N. Jacobsen, a member of our Board of
Directors and Scientific Advisory Board, which enables us to produce single-
isomer pharmaceutical chiral intermediates using more cost-effective processes
than others currently available. We believe that this technology has
significant commercial potential, including in the production of drugs for the
treatment of asthma, arthritis, cardiovascular disease, AIDS, cancer and
hepatitis and also including extensive non-pharmaceutical applications. In May
1998, we also entered into an exclusive license agreement with MIT for the
metal-catalyzed aromatic carbon-heteroatom bond forming technologies
discovered by Professor Stephen Buchwald of MIT. We believe that these
technologies can reduce the complexity and cost of manufacturing certain aryl
and heterocyclic intermediates, which are core building blocks for both
existing and emerging pharmaceuticals, and thus extend the range of products
we can manufacture at a competitive advantage.
Patents and Proprietary Technology
Our proprietary rights with respect to our products and processes are
generally protected only to the extent that they are covered by valid and
enforceable patents or are maintained in confidence as trade secrets. Our
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<PAGE>
principal patents expire at various times beginning in 2008. Some of our
technology remains uncovered by any patent or patent application. In addition,
we have ongoing research efforts and expect to seek additional patents in the
future covering patentable results of such research. We cannot assure you that
any pending patent applications we file will result in patents being issued,
or that any patents or licenses:
. will protect us against competitors with similar technologies;
. will not be infringed upon or designed around by others;
. will not be challenged by others and held to be invalid or
unenforceable; or
. will not be terminated by a licensor pursuant to various terms in such
licenses or due to any breach.
In the absence of patent protection, our business may be adversely affected
by competitors who independently develop substantially equivalent technology.
There may be third-party patents relating to technology we use. We may need
to acquire licenses to, or to contest the validity of, any such patents.
Defending any claim that we are infringing a third-party patent would most
likely prove costly, and any such claim could adversely affect us until the
claim is resolved. Furthermore, any such dispute could result in a rejection
of our patent applications or the invalidation of our patents. We cannot
assure you that we could obtain any licenses required under such patents on
acceptable terms or that we would prevail in any litigation involving such
patents. Any of the foregoing negative results could have a material adverse
effect on us and our results of operations.
We use our own proprietary technology, including technology that may not be
patented or patentable. We seek to protect our proprietary technology through,
among other things, confidentiality agreements and, if applicable, inventors'
rights agreements with our collaborators, advisors, employees and consultants.
We cannot assure you that these agreements will not be breached, that we will
have adequate remedies for any breach or that our trade secrets will not
otherwise be disclosed to, or discovered by, our competitors. In addition, we
cannot assure you that these collaborators, advisors, employees and
consultants will not claim rights to intellectual property arising out of
their research.
Business Development, Customers
We market the majority of our products directly to pharmaceutical companies.
An important component of our strategy is to pursue long-term supply
relationships with selected major customers. We employ business development
professionals who possess the requisite technical backgrounds to communicate
effectively with both prospective customers and our research and development
personnel. During 1999, our business development personnel more than doubled
to six professionals in order to support the expansion of our development
division.
We have implemented a new product management approach by shifting from a
departmental to a product management philosophy. This approach is a departure
from the traditional plant management focus and involves organizing our
activities around products instead of facilities. We believe this approach
improves accountability to customers by vesting ultimate authority for every
product with a single person, or product manager, at our company. This
approach parallels our customers' business activities, thus facilitating
communication and cooperation during the production process, and thereby
reducing the time needed to take a particular product to market.
To facilitate this focus on product management, we have implemented a more
formalized product evaluation process, including a review of potential new
products by a committee involving senior marketing, manufacturing and
technology staff. We are reducing overall product complexity by focusing on
products that play to our chemistry strengths, such as multi-stage synthesis
of complex molecules.
As part of our ongoing commercial development efforts, we maintain a
presence at important international trade shows and host a bi-annual
international technical symposium to which selected senior representatives and
executives of the research and development organizations of major
pharmaceutical companies are invited. In addition, our technical and business
development professionals present papers at symposia on a regular basis.
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<PAGE>
We are dependent on a small number of customers. In 1999, our three largest
customers accounted for approximately 81% of total revenues. Glaxo, Rohm and
Haas Company and Sanofi S.A. accounted for approximately 59%, 17% and 15%,
respectively, of our 1999 revenues. We will continue to rely on a limited
number of customers, particularly Glaxo, as well as a limited number of
products for a great deal of our revenues. The loss of one or more of these
customers or products would have a material adverse effect on our business. In
particular, while our supply agreement with Glaxo contains certain provisions
for renewal, we cannot assure you that the contract will be renewed. Our
customers may also be susceptible to adverse effects on their own businesses
due to changes in government regulation, including those regarding health care
reform. This could in turn lead to a decrease in the amount of services and
products these customers purchase from us.
Contracts
We conduct business on both a purchase order basis and a formal contract
basis. Where we conduct business on a formal contract basis, we have entered
into a variety of contractual arrangements with our customers, on both a fixed
price and a cost plus basis. In cases where the contracts are fixed price, we
bear the cost of overruns but benefit if the costs are lower than anticipated.
In cases where the contracts are on a cost plus basis, we are guaranteed
reimbursement for our actual costs of performance and an agreed upon profit,
with certain exceptions.
Contracts may have terms ranging from a few months to several years
depending upon the nature of the work being performed and the approval status
of the product in question. Some of our contracts are terminable by our
customer upon notice. Contracts may also be terminated for a variety of
reasons including unexpected or undesired results of the product, the failure
of a product to satisfy safety requirements, the failure of a product to gain
regulatory approval or a party's failure to properly discharge its obligations
under such agreement.
Environmental Regulation
Our manufacturing and research and development processes involve the
controlled use of hazardous materials. We are subject to numerous laws and
regulations governing the use, manufacture, storage, handling and disposal of
such materials and waste products in the United Kingdom and United States. In
the event of contamination or injury from hazardous materials, we could be
held liable for any resulting damages and any such liability could exceed our
resources.
Dudley, England Facility
Our manufacturing plant in Dudley, England, is subject to the U.K.
Environmental Protection Act 1990 ("EPA 1990"), which requires authorizations
for any industrial air and certain water discharges and solid waste disposal.
The individual authorizations are contained within several Integrated
Pollution Control ("IPC") authorizations under the 1991 Environmental
Protection Regulations adopted pursuant to the EPA 1990. Our IPC
authorizations for the Dudley facility are administered by the U.K.'s
Environment Agency ("EA"). In addition, the Dudley plant is also subject to
the U.K. Water Resources Act 1991 ("WRA") governing the discharge of liquid
waste, and the U.K. Water Industry Act 1991 ("WIA") governing discharges to
sewers.
We believe we are in compliance in all material respects with our IPC
authorization conditions, limitations and compliance schedules for Dudley. We
possess "envelope" authorizations for our air pollutant emissions, which
enable us to alter our production lines and processes to a degree without
seeking additional authorizations. We have committed ourselves in a plan
submitted to the EA to implement certain air pollution emission reduction
programs.
We have a consent to discharge our process waste water in Dudley, following
treatment in our biological waste water pretreatment plant, into local sewers
for further treatment by the company that owns and operates the local area
wastewater treatment facility, which discharges its effluent to the River
Tyne. Northumbrian Water ("NW") is the local sewer operator and the EA is the
governmental regulatory body responsible for the regulation of NW and the
country's rivers. In the past, we have had periodic difficulties in meeting
our consent
14
<PAGE>
limits and ends for suspended solids in waste water. During 1996, we reached
agreement with NW which resulted in a relaxation of the consent limit for
suspended solids. We also made certain capital improvements to our biological
waste water treatment plant, and it is now consistently in compliance with the
consent limit. If the consent limit is exceeded, the plant must adhere to
certain notice and corrective action procedures. This compliance program was
developed in consultation with and has received the approval of the EA.
Since the initial public offering, we have reached agreement with NW and the
EA on a set of contingency measures that would be taken in the event our
biological pretreatment plant in Dudley experienced a treatment upset or, due
to malfunction or other failure, had to be bypassed for a period of time. The
procedures are designed to minimize the impact of such occurrences while
allowing us to continue our production operations, which in the absence of
such agreed procedures, would have been subject to potential shutdown.
The Environment Act 1995 ("1995 Act") imposes strict, retroactive cleanup
liability on persons responsible for creating or contributing to contaminated
sites. Landowners are presumptively liable under this statute for conditions
existing on their property where a different responsible party can not be
found. We believe that the limited areas of subsurface contamination presently
known to exist at the Dudley site are confined and will not give rise to
liability under the 1995 Act.
During May 1999, there was a release of approximately 50 liters of ethylene
glycol from our Dudley facility to a stream running along the northern border
of the site. This stream is classified as a "controlled water" and the loss of
glycol was deemed an offense under EPA 1990. During February, 2000, the
Company accepted a formal caution under EPA 1990, which concludes all action
associated with this incident. However, the caution remains on the Company's
record, and may be cited in any future actions taken by the agency.
During November 1999, there was an unauthorized release at our Dudley
facility of approximately 30kg. of gaseous hydrochloric acid to the atmosphere
from an authorized process. The Environment Agency has deemed this to be a
breach of the Company's site authorization and are currently investigating the
incident. We expect that the Environment Agency may assess a fine in regard to
the incident. Although we cannot reliably predict the magnitude of such fine,
we do not expect it to have a material adverse effect on our financial
position or results of operation.
Annan, Scotland Facility
Our manufacturing plant in Annan, Scotland, is also subject to the EPA 1990
and the 1995 Act. Our IPC authorizations for Annan are administered by the
Scottish Environmental Protection Agency ("SEPA"). In addition, the facility
is also subject to the Sewerage (Scotland) Act 1968 and the Control of
Pollution Act 1974 providing for the regulation of trade or sewage effluent to
streams and other inland waters, as well as certain provisions of The Rivers
(Prevention of Pollution) (Scotland) Acts 1951 and 1965.
We possess certain IPC authorizations for the Annan site that cover existing
products. During 1999 we agreed with the SEPA to revise our authorizations to
the "envelope" type, which will encompass the existing products and allow us
the flexibility to introduce new products by means of variation to the
"envelope." these "envelope" authorizations have been granted for operations
in two of the operating plant buildings at the Annan site. We expect during
2000 to receive such authorization for the third operating plant building at
the Annan site, as well as ancillary "envelope" authorizations for solvent
recovery and bulk storage.
Phase I of the environmental improvement program for the site incinerator,
involving burner modifications, was completed during the fourth quarter of
1998. Phase II, involving installation of a bag-house filter to manage
particulate emissions was completed during 1999. The program to reduce
volatile organic compound emissions by installing new vacuum pumps and
scrubbers was completed during 1999.
An oil spill following the off-loading of a road tanker occurred on the
Annan site in 1992 when Glaxo owned the facility. Actions to control the oil
spill were taken at such time. However, sporadic problems have
15
<PAGE>
been encountered since such spill, involving the appearance of fuel in the
site's drainage system. To address this issue, we have applied for permission
to install a land drainage interceptor to capture minor residual oil before it
can enter any waterways or the land drainage system. Design work has been
completed for the interceptor; however, the project is not expected to be
completed during 2000. Under the Asset Purchase Agreement between us and
Glaxo, Glaxo is responsible for remediation costs relating to such oil spill
and has agreed to provide us with certain indemnities in the event of
governmental and other claims.
Malvern, Pennsylvania Facility
Our research and development facility in Malvern, Pennsylvania, United
States, is subject to regulation or potential liability under various federal
environmental laws, including the Clean Air Act ("CAA") the Solid Waste
Disposal Act ("SWDA"), as amended by the Resource Conservation and Recovery
Act ("RCRA"), the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA") and the Hazard Communication Rules of the
Occupational Safety and Health Act ("OSHA"). In addition, the facility is
subject to Pennsylvania state laws, including the Hazardous Sites Cleanup Act
("HSCA") and regulations that either implement the above referenced federal
laws or operate in addition to those laws. Specifically, the remediation of
any environmental contamination of the soil or groundwater at the facility is
governed on the state level by the Pennsylvania Land Recycling and
Environmental Remediation Standards Act (aka "Act 2") .
During July 1999, there was a leak of approximately 50 gallons of a mixture
of waste fluid containing principally methylene chloride, from a storage drum
onto the facility's concrete floor. Methylene chloride is a RCRA listed
hazardous waste, and the seepage of some of the material into the soil beneath
the floor constituted a release to the environment of a hazardous substance
under CERCLA and HSCA. We reported the release to the Pennsylvania Department
of Environmental Protection ("DEP") and to appropriate federal and local
authorities, and proceeded to excavate and properly dispose of the
contaminated soil. We are in the process of completing a final Act 2
remediation report to DEP, which if accepted will protect the company against
further regulatory liability under Pennsylvania law. We expect that before
final acceptance of the report DEP will assess a fine in regard to the
incident. Although we cannot reliably predict the magnitude of such fine, we
do not expect it to have a material adverse effect on our financial position
or results of operation. In addition, while the acceptance of the Act 2 report
does not provide protection from liability under federal or common law, we
believe that the federal Environmental Protection Agency ("EPA") is unlikely
to take further enforcement action under the circumstances. As a result of the
incident, we have reviewed and revised our material handling and storage
procedures at the Malvern facility to minimize the possibility of any future
release.
We cannot assure you that we will not be required to incur future
expenditures for environmental compliance and control at our facilities in the
United Kingdom or United States. Such costs, and other unanticipated costs of
compliance with environmental laws and regulations in the future, could have a
material adverse effect on our financial position or results of operations.
Other Governmental Regulation
Our operations, as well as those of our customers, are subject to extensive
regulation by numerous governmental authorities in the United States, the
United Kingdom and other countries. In particular, we are required to adhere
to applicable FDA regulations for cGMP, including extensive record keeping and
reporting and periodic inspections of our manufacturing facilities. Similar
requirements are imposed by governmental agencies in other countries. The
concept of cGMP encompasses all aspects of the production process and involves
changing and evolving standards. Consequently, continuing compliance with cGMP
is a particularly difficult part of regulatory compliance, especially since
the FDA and certain other analogous international governmental agencies have
increased the number of regular inspections to determine compliance. Failure
to comply with the applicable regulatory requirements can, among other things,
result in fines, suspensions of regulatory approvals, product recalls,
operating restrictions and criminal prosecution.
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<PAGE>
Continuing studies of the proper utilization, safety and efficacy of
pharmaceutical products are being conducted by government agencies, industry
and others. Such studies, which employ increasingly sophisticated methods and
techniques, can call into question the utilization, safety and efficacy of
previously marketed products and in some cases have resulted, and may in the
future result, in the discontinuance of their marketing and, in certain
countries, give rise to claims for damages for persons who allege they have
been injured as a result of their use.
We are subject to environmental, labor, health and workplace safety
regulation pursuant to a variety of national and local legislation in the
United Kingdom, including the Health and Safety at Work Act 1974, which
requires management to take all reasonably practicable steps to ensure the
safety of its employees, visitors and other parties who may be affected by
acts and omissions of its employees. We are also subject to FDA regulation
under the Federal Food, Drug, and Cosmetic Act, the Public Health Service Act
and the Toxic Substances Control Act. In addition, numerous other domestic and
foreign government regulations govern our company.
The evolving and complex nature of regulatory requirements, the broad
authority and discretion of governmental agencies, continuing studies
involving the safety of currently marketed pharmaceutical products and the
generally high level of regulatory oversight results in the continuing
possibility that we may be adversely affected by regulatory actions despite
our ongoing efforts and commitment to achieve and maintain compliance with
regulatory requirements.
In addition, compliance with governmental laws and regulations, including
environmental laws and regulations, requires us to obtain permits issued by
appropriate regulatory agencies. Permits generally require periodic renewal or
review of their conditions, and public comment may be solicited in the
permitting process. We cannot assure you that we will be able to renew or
obtain all necessary permits, or that material changes in permit conditions
will not be imposed or that material public opposition will not surface.
Failure to obtain or renew certain permits could result in the shutdown of our
facilities, the imposition of significant fines or the incurrence of
significant expenditures to comply with the law.
Financial Information About Foreign and Domestic Operations and Export Sales
A significant majority of our operations are conducted outside the United
States. We operate two manufacturing facilities in the United Kingdom, where a
significant majority of our employees are located. For 1997, 1998 and 1999,
net sales of our products and services outside the United States totaled
approximately $93 million, $119 million and $139 million, representing 99%,
99% and 95%, respectively, of our net sales for those periods. As a result of
our international operations, we are subject to risks associated with
operating in foreign countries, including devaluations and fluctuations in
currency exchange rates, imposition or increase of withholding and other taxes
on remittances and other payments by foreign subsidiaries, trade barriers,
political risks and imposition or increase of investment and other
restrictions by foreign governments. Because over 90% of our revenues and
expenses are denominated in Great Britain Pounds Sterling, our revenues, cash
flows and earnings are directly and materially affected by fluctuations in the
exchange rate between the Pound Sterling and the U.S. Dollar. These risks
could have a material adverse effect on our business and operating results.
Employees
As of December 31, 1999, we had 568 full-time employees. 298 of our full
time employees are unionized. We believe our labor relations are satisfactory.
Legal Proceedings
We are involved in various legal proceedings incidental to the conduct of
our business. While it is not possible to determine the ultimate disposition
of these proceedings, we believe that the outcome of such proceedings will not
have a material adverse effect on our financial position or results of
operations.
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<PAGE>
Risk Factors
The following is a description of certain risks that our company faces. This
list is not exhaustive. Additional risks not currently known to us or that we
currently deem immaterial may also impair our business operations.
Product Development Risks; Dependence on Others
Part of our business strategy involves collaborating with our customers in
the early stage of product development. This enables us to establish long-term
relationships for the manufacture of these products upon their
commercialization. We currently collaborate with customers on a substantial
number of development products, the majority of which are currently in
clinical trials. Our success depends in large part on the following factors:
. the commercial viability of new pharmaceutical products being developed
by our customers;
. our customers' willingness to attempt to commercialize such products;
and
. the ability of our pharmaceutical customers to conduct clinical trials,
obtain required regulatory approvals and successfully market such
products.
In particular, the marketing and sale of pharmaceutical products in the
United States will require FDA approvals and will require similar approvals in
foreign countries. To obtain such approvals, the safety and efficacy of these
products must be demonstrated through human clinical trials which, if
permitted, can take several years. We cannot assure you that any of these
products will be safe or effective. Each stage in the development of these
products can require substantial investment and take a long time without any
assurance as to the commercial viability of these products, the absence of
competing drugs or alternative therapies. We cannot assure you that our
product development efforts will be successful, that required regulatory
approvals can be obtained on a timely basis, if at all, that products can be
manufactured at an acceptable cost and with appropriate quality, that any
products, if approved, can be successfully marketed or that our customers will
commercialize such products.
Dependence on Key Customers and Products
We are dependent on a small number of customers. In 1999, our three largest
customers accounted for approximately 81% of total revenues. Glaxo, Rohm and
Haas Company and Sanofi S.A. accounted for approximately 59%, 17% and 15%,
respectively, of our 1999 revenues. We will continue to rely on a limited
number of customers, particularly Glaxo, as well as a limited number of
products for a great deal of our revenues. The loss of one or more of these
customers or products would have a material adverse effect on our business. In
particular, while our supply agreement with Glaxo contains provisions for
renewal, we cannot assure you that the contract will be renewed. Our customers
may also be susceptible to adverse effects on their own businesses due to
changes in government regulation, including those regarding health care
reform. This could in turn lead to a decrease in the amount of services and
products these customers purchase from us.
During November 1999, Glaxo provided us their preliminary forecast for 2000
demand under the 1997 Glaxo supply agreement. A final forecast was provided on
December 1, 1999. The forecast provided that Glaxo would not purchase any
Intended Quantity Products during 2000. Glaxo and we have had numerous
meetings and correspondence to address Glaxo's obligation to use best
endeavors to replace the Intended Quantity Products with products of
equivalent Added Value. Glaxo has agreed to undertake a review by June 30,
2000 "to identify opportunities to purchase products in 2000 to compensate
ChiRex in accordance with Glaxo's contractual obligations." We can not assure
you that Glaxo will place orders with us to replace the Intended Quantity
Products with products of equivalent Added Value during 2000, or thereafter.
We can not assure you that Glaxo will comply with its contractual obligations
under the 1997 supply agreement. See "Business--Relationship with Glaxo."
18
<PAGE>
Risks Associated With Operating Facilities
Many factors, such as production disruptions, industrial accidents,
environmental hazards, technical difficulties or equipment failures, labor
disputes, late delivery of supplies, and periodic or extended interruptions
due to inclement or hazardous weather conditions, fires, explosions or other
accidents or acts of force majeure, could cause serious operational problems
at the Annan, Dudley, Boston and Malvern facilities. These events could damage
or destroy those facilities, cause personal injury, environmental damage,
delays in productions, or result in financial losses and legal liability. Any
prolonged downtime or shutdowns of the Annan, Dudley, Boston or Malvern
facilities would have a material adverse effect on our business, results of
operations, financial conditions or prospects.
Competition
We operate in an extremely competitive environment. Many of our competitors
are major chemical, pharmaceutical, and process research and development
companies, including a number of our own customers, that have much greater
financial resources, technical skills and marketing experience than we do. Our
competitive market is characterized by extensive research efforts and rapid
technological progress. We expect new developments to continue, and we cannot
assure you that discoveries by our competitors will not render our research
and development, our technologies or our potential products obsolete or
noncompetitive. Competition may grow more intense as industry-wide
technological progress accelerates and more money is invested in these fields.
Competition in our market is based upon reputation, service, manufacturing
capability and expertise, price and reliability of supply. We cannot assure
you that we will be successful in obtaining customer contracts on commercially
favorable terms, if at all. Furthermore, our success depends to a significant
extent on our ability to provide manufacturing services to potential customers
at an early stage of product development. We cannot assure you that we will be
successful in such efforts. In addition, we may not be able to attract and
retain experienced management and technical personnel.
Dependence on Key Personnel
We are highly dependent on some of the key members of our senior management
and scientific staff, including, in particular, Michael A. Griffith, Chairman
of the Board and Chief Executive Officer, Ian D. Shott, President,
Manufacturing Division, Bruce P. Shutts, President, Development Division, and
Eric N. Jacobson, the Scientific Director of the Boston facility on a
consultancy basis and a member of our Board of Directors and Scientific
Advisory Board. We cannot assure you that we will be able to retain such
personnel. The loss of one or more members of our senior management or
scientific staff could have a material adverse effect on our business, results
of operations, financial conditions or prospects.
Environmental Risks; Hazardous Materials
Our manufacturing and research and development processes involve the
controlled use of hazardous materials. We are subject to laws and regulations
in the United Kingdom and the United States governing the use, manufacture,
storage, handling and disposal of such materials and certain waste products.
In the event of contamination or injury from hazardous materials, we could be
held liable for any damages that result. Our liability for these damages could
exceed our resources. In addition, we may have to incur significant costs to
comply with environmental laws and regulations in the future. Any
environmental regulatory action taken by U.K. or U.S. environmental
authorities causing the temporary cessation of production operations at the
Dudley, Annan, Boston or Malvern facilities could have a material adverse
effect on our results of operations. Maintaining our permitted effluent
discharge limits and implementing air emission improvement programs acceptable
to the regulatory authorities may also prove costly. These programs may
require significant ongoing capital expenditures in an amount greater than we
currently anticipate, which could have a material adverse effect on our
results of operations.
19
<PAGE>
Comprehensive Governmental Regulation
Our operations, as well as those of our customers, are subject to extensive
regulation by numerous governmental authorities in the United States, the
United Kingdom and other countries. In particular, we are required to adhere
to applicable FDA regulations for cGMP, including extensive record keeping and
reporting and periodic inspections of our manufacturing facilities. Similar
requirements are imposed by governmental agencies in other countries. The
concept of cGMP encompasses all aspects of the production process and involves
changing and evolving standards. Consequently, continuing compliance with cGMP
is a particularly difficult part of regulatory compliance. Failure to comply
with the applicable regulatory requirements can, among other things, result in
fines, suspensions of regulatory approvals, product recalls, operating
restrictions and criminal prosecution. We are also subject to numerous
environmental, health and workplace safety laws and regulations, including
those governing emissions control, laboratory procedures and the handling of
hazardous materials. Any violation of, and cost of compliance with, these laws
and regulations could adversely affect our operations.
Governmental laws and regulations, including environmental laws and
regulations, require us to obtain permits from appropriate regulatory agencies
to continue to operate our manufacturing facilities. These permits generally
require periodic renewal or review of their conditions, and public comment may
be solicited in the permitting process. We cannot assure you that we will be
able to obtain all necessary permits or renew all existing permits, or that
material changes in permit conditions will not be imposed or that material
public opposition will not surface. Failure to obtain or renew certain permits
could result in the shutdown of our facilities or the imposition of
significant fines, each of which would have a material adverse effect on our
business and results of operations. See "--Environmental Risks; Hazardous
Materials," "Environmental Regulation" and "Other Governmental Regulation."
Patents and Proprietary Technology
Our proprietary rights with respect to our products and processes are
generally protected only to the extent that they are covered by valid and
enforceable patents or are maintained in confidence as trade secrets. Our
principal patents expire at various times beginning in 2008. Some of our
technology remains uncovered by any patent or patent application. In addition,
we have ongoing research efforts and expect to seek additional patents in the
future covering patentable results of such research. We cannot assure you that
any pending patent applications we file will result in patents being issued,
or that any patents or licenses:
. will protect us against competitors with similar technologies;
. will not be infringed upon or designed around by others;
. will not be challenged by others and held to be invalid or
unenforceable; or
. will not be terminated by a licensor pursuant to various terms in such
licenses or due to any breach.
In the absence of patent protection, our business may be adversely affected
by competitors who independently develop substantially equivalent technology.
There may be third-party patents relating to technology we use. We may need
to acquire licenses to, or to contest the validity of, any such patents.
Defending any claim that we are infringing a third-party patent would most
likely prove costly, and any such claim could adversely affect us until the
claim is resolved. Furthermore, any such dispute could result in a rejection
of our patent applications or the invalidation of our patents. We cannot
assure you that we could obtain any licenses required under such patents on
acceptable terms or that we would prevail in any litigation involving such
patents. Any of the foregoing negative results could have a material adverse
effect on us and our results of operations.
We use our own proprietary technology, including technology that may not be
patented or patentable. We seek to protect our proprietary technology through,
among other things, confidentiality agreements and, if
20
<PAGE>
applicable, inventors' rights agreements with our collaborators, advisors,
employees and consultants. We cannot assure you that these agreements will not
be breached, that we will have adequate remedies for any breach or that our
trade secrets will not otherwise be disclosed to, or discovered by, our
competitors. In addition, we cannot assure you that these collaborators,
advisors, employees and consultants will not claim rights to intellectual
property arising out of their research.
Product Liability Risks; Lack of Insurance
Our business exposes us to product liability risks inherent in the testing,
manufacturing and marketing of pharmaceuticals and life science products. We
have limited product liability insurance coverage, and we cannot assure you
that we will be able to obtain further product liability insurance on
acceptable terms or that our current or future insurance will provide adequate
coverage against any or all potential claims. In addition, we have no clinical
trial liability insurance.
Significant Risks Relating to International Operations; Currency
Fluctuations; Introduction of the Euro
A significant majority of our operations are conducted outside the United
States. We operate two manufacturing facilities in the United Kingdom, where a
significant majority of our employees are located. For 1997, 1998 and 1999,
net sales of our products outside the United States totaled approximately $93
million, $119 million and $139 million, representing 99%, 99% and 95%,
respectively, of our net sales for those periods. As a result of our
international operations, we are subject to risks associated with operating in
foreign countries, including devaluations and fluctuations in currency
exchange rates, imposition or increase of withholding and other taxes on
remittances and other payments by foreign subsidiaries, trade barriers,
political risks and imposition or increase of investment and other
restrictions by foreign governments. Because over 90% of our revenues and
expenses are denominated in Great Britain Pounds Sterling, our revenues, cash
flows and earnings are directly and materially affected by fluctuations in the
exchange rate between the Pound Sterling and the U.S. Dollar. These risks
could have a material adverse effect on our business and operating results.
As of January 1, 1999 the Euro replaced some of the currencies of the member
states of the European Union, including countries in which we market our
products. We cannot assure you that the introduction of the Euro will not
increase the volatility of Pounds Sterling exchange rates or result in the
future appreciation of Pounds Sterling, which could, in either case, adversely
affect our results of operations. It is possible that under certain
circumstances the United Kingdom may participate in the European Monetary
Union in the future. If the United Kingdom were to participate in the European
monetary union, the Pound Sterling will be replaced by the Euro.
Dependence on Raw Material Suppliers
We purchase raw materials, primarily chemicals, from suppliers throughout
the world. These chemicals range from basic commodities to more sophisticated
advanced intermediates. In many instances we use only one supplier to get a
volume discount and to ensure the chemicals meet our stringent quality
standards. If the supply of a key raw material is interrupted for any reason,
this could have an adverse impact on our ability to manufacture a particular
intermediate or active pharmaceutical ingredient for our customers. In most
situations, there are alternate suppliers throughout the world of any chemical
that we require. If there was a significant delay in identifying and
qualifying a new supplier or if there are no alternate suppliers, there could
be a loss of sales and of customers, or an increase in the cost of production.
Any of these events could have a material adverse effect on our results of
operations. We do not have a long-term supply agreement with most of our
suppliers. We purchase the chemicals on a purchase order basis and forecast
our needs based on our customers' requirements. There can be no assurance that
such suppliers will continue to make available to us the required raw
materials on reasonable terms, if at all. The availability and price of raw
materials may be subject to curtailment or change due to limitations that may
be imposed under new legislation or governmental regulations, suppliers'
allocations to meet demand of other purchasers, interruptions in production by
suppliers and other conditions. In addition, raw materials used by us may be
subject to significant price fluctuations. A substantial increase in prices or
a continued interruption in supply would have a material adverse effect on our
business and results of operations.
21
<PAGE>
Anti-Takeover Effects of Certain Charter and by-Law Provisions and Delaware
Law; Rights Plan
Certain provisions of our Certificate of Incorporation and Amended and
Restated By-Laws and the Delaware General Corporation Law may have the effect
of delaying or preventing changes in control or management of our company,
which could adversely affect the market price of our Common Stock. These
provisions include:
(1) a board divided into three classes, each of which serves for a
staggered three-year term;
(2) provisions restricting the removal of directors, the filling of board
vacancies and the taking of stockholder action;
(3) advance notice provisions with respect to shareholder proposals; and
(4) the authority of our Board of Directors to issue up to 4,000,000 shares
of Preferred Stock and to determine the price, rights, preferences and
privileges of those shares without any further vote or action by the
stockholders.
The rights of the holders of our Common Stock will be subject to, and may be
adversely affected by, the rights of the holders of any shares of Preferred
Stock that may be issued in the future. We are also subject to Section 203 of
the Delaware General Corporation Law which, subject to certain exceptions,
prohibits a Delaware corporation from engaging in a broad range of business
combinations with any interested stockholder for a period of three years
following the date that such stockholder became an interested stockholder.
In addition, the Board of Directors has adopted a Rights Plan, which may
render an unsolicited takeover of our company more difficult or less likely to
occur or might prevent such a takeover, even though such takeover may offer
our stockholders the opportunity to sell their stock at a price substantially
above the prevailing market rate and may be favored by a majority of our
stockholders. The Rights Plan could adversely affect the market price of the
Common Stock.
Potential Volatility of Stock Price
The market price of the shares of our Common Stock, like that of the common
stock of many other pharmaceutical and chemical companies, may be highly
volatile. Factors such as announcements of technological innovations or new
commercial products by us or our competitors, disclosure of results of
clinical testing or regulatory proceedings, developments in our relationships
with our customers, FDA announcements, FDA and other governmental regulation
and approvals, developments in patent or other proprietary rights, public
concern as to the safety of products developed by us and general market
conditions may have a significant effect on the market price of our common
stock. In addition, U.S. stock markets have experienced extreme price and
volume fluctuations. This volatility has significantly affected the market
prices of securities of many pharmaceutical and chemical companies for reasons
frequently unrelated or disproportionate to the operating performance of the
specific companies. These broad market fluctuations may adversely affect the
market price of our Common Stock.
22
<PAGE>
ITEM 2. PROPERTIES
Our corporate offices are located in Stamford, Connecticut, and our
development division operates at facilities in Boston, Massachusetts, Malvern,
Pennsylvania and Dudley, England. Our manufacturing division facilities are
located in Dudley, England and Annan, Scotland.
<TABLE>
<CAPTION>
LAND SIZE
LOCATION TITLE (Acres) (sq.ft.) USE
-------- ------ ------ ------- ---------------------------------------
<S> <C> <C> <C> <C>
Stamford, CT Leased -- 4,500 Corporate Office
Boston, MA Leased -- 11,000 R&D, Laboratories, Offices
Malvern, PA Leased -- 23,460 R&D, Laboratories, Pilot Plant, Offices
Dudley, England Owned 45 443,108 Manufacturing, Warehousing, Offices
Annan, Scotland Owned 154 158,446 Manufacturing, Warehousing, Offices
</TABLE>
ITEM 3. LEGAL PROCEEDINGS
We are involved in various legal proceedings incidental to the conduct of
our business. While it is not possible to determine the ultimate disposition
of these proceedings, we believe that the outcome of such proceedings will not
have a material adverse effect on our financial position or results of
operation.
ITEM 4. SUBMISSIONS OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
23
<PAGE>
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
Price Range of Our Common Stock
The Common Stock was initially offered to the public on March 5, 1996 at a
price of $13.00 per share. Our Common Stock is listed and traded on The Nasdaq
Stock Market's National Market ("Nasdaq") under the symbol "CHRX." The
following table sets forth for the periods indicated the high and low sales
prices of our Common Stock as reported by Nasdaq.
<TABLE>
<CAPTION>
1998: High Low
----- ------ ------
<S> <C> <C>
First Quarter............................................... $19.31 $11.63
Second Quarter.............................................. 23.25 14.19
Third Quarter............................................... 19.00 9.75
Fourth Quarter.............................................. 21.38 10.50
<CAPTION>
1998: High Low
----- ------ ------
<S> <C> <C>
First Quarter............................................... $24.50 $18.16
Second Quarter.............................................. 33.25 21.87
Third Quarter............................................... 35.62 25.81
Fourth Quarter.............................................. 34.87 12.50
</TABLE>
On March 2, 2000, the last reported sale price of our Common Stock as
reported by Nasdaq was $23.875. As of March 2, 2000, there were approximately
7,100 holders of record of our Common Stock.
Dividend Policy
We have never declared or paid cash dividends on our capital stock. We
currently intend to retain any future earnings for use in our business and,
therefore, do not anticipate paying cash dividends in the foreseeable future.
24
<PAGE>
ITEM 6. SELECTED HISTORICAL FINANCIAL DATA
The following selected historical financial data of our company as of
December 31, 1995 and for the year then ended have been derived from the
financial statements of our company which have been audited by Coopers &
Lybrand L.L.P., independent public accountants. The selected historical
financial data for our company as of December 31, 1996, 1997, 1998 and 1999
and for the years then ended, have been derived from the financial statements
of our company which are incorporated by reference elsewhere in this document
and which have been audited by Arthur Andersen LLP, independent public
accountants. This information should be read in conjunction with "Item 8.
Financial Statements and Supplementary Data" and "Item 7. Management's
Discussion and Analysis of Financial Condition and Results of Operations."
ChiRex Inc.
<TABLE>
<CAPTION>
Years Ended December 31
-----------------------------------------------
1995 1996 1997 1998 1999
------- -------- -------- -------- --------
(in thousands except per-share data)
<S> <C> <C> <C> <C> <C>
Statement of Operations Data:
Revenues...................... $ 2,754 $ 74,615 $ 94,100 $119,663 $146,989
Cost and expenses:
Cost of goods sold.......... 1,715 56,508 71,440 87,876 93,800
Research and development.... 595 3,517 3,937 4,389 6,958
Selling, general and
administrative............. 2,099 7,952 9,423 12,622 14,909
Goodwill amortization....... -- 924 1,164 1,164 1,383
Restructuring and other
expense, net of proceeds
from disposition of
acetaminophen business
in 1997.................... -- 5,611 8,069 3,242 7,399
Write-off of in-process
research and development... -- 5,790 -- -- --
------- -------- -------- -------- --------
Total operating expenses.. 4,409 80,302 94,033 109,293 124,449
------- -------- -------- -------- --------
Operating income (loss)....... (1,655) (5,687) 67 10,370 22,540
Interest expense, net......... -- 755 1,052 5,829 5,934
Other expenses................ 797 -- -- -- --
------- -------- -------- -------- --------
Income (loss) before income
taxes........................ (2,452) (6,442) (985) 4,541 14,513
(Provision) benefit for income
taxes........................ -- (1,867) 335 (2,373) (5,843)
------- -------- -------- -------- --------
Net income (loss) before
extraordinary loss........... (2,452) (8,309) (650) 2,168 10,763
------- -------- -------- -------- --------
Extraordinary loss net of $633
thousand benefit for income
taxes........................ -- -- -- -- (1,460)
Net income (loss)............. $(2,452) $ (8,309) $ (650) $ 2,168 $ 9,303
======= ======== ======== ======== ========
Diluted income (loss) per
common share................. $ (0.70) $ (0.88) $ (0.06) $ 0.18 $ 0.62
======= ======== ======== ======== ========
Balance Sheet Data (as of
December 31):
Cash.......................... $ 1 $ 291 $ 5,347 $ 128 $ 4,480
Total assets.................. 2,692 130,806 203,067 238,538 263,052
Long-term debt................ -- 3,933 69,675 76,544 38,880
Stockholders' equity.......... 2,692 90,068 93,095 97,213 160,047
</TABLE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND
FINANCIAL CONDITION
Management's discussion and analysis of results of operations and financial
condition as set forth on pages 13 through 18 of the Registrant's 1999 Annual
Report to Stockholders is incorporated herein by reference.
25
<PAGE>
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Stockholders and Board of Directors of ChiRex Inc.:
We have audited, in accordance with auditing standards generally accepted in
the United States, the consolidated financial statements of ChiRex Inc.
included in ChiRex Inc.'s Form 10-K and have issued our report thereon dated
February 3, 2000. Our audits were made for the purpose of forming an opinion
on the basic consolidated financial statements taken as a whole. ChiRex Inc.'s
schedule of Valuation and Qualifying Accounts, included in Schedule II
immediately below, is the responsibility of the Company's management and is
presented for purposes of complying with the Securities and Exchange
Commission's rules and is not part of the basic consolidated financial
statements. This schedule has been subjected to the auditing procedures
applied in the audits of the basic consolidated financial statements and, in
our opinion, fairly states, in all material respects, the financial data
required to be set forth therein in relation to the basic consolidated
financial statements taken as a whole.
ARTHUR ANDERSEN LLP
Boston, Massachusetts
February 3, 2000
Financial statements and supplementary data as set forth on pages 20 through
41 of the Registrant's 1999 Annual Report to Stockholders is incorporated
herein by reference. In addition, the following is included herein as Schedule
II:
SCHEDULE II--VALUATION AND QUALIFYING ACCOUNTS
For the years ended December 31, 1997, 1998 and 1999
<TABLE>
<CAPTION>
Charged
Balance (credited) to Balance at
beginning of Statements of end of
Period Operations Deductions period
------------ ------------- ---------- ----------
<S> <C> <C> <C> <C>
Allowance for doubtful
accounts
1997.................. 300,000 (236,000) (42,000) 22,000
1998.................. 22,000 -- (3,000) 19,000
1999.................. 19,000 (19,000) -- --
Restructuring reserves
1997.................. $ -- $1,272,150 $ -- $1,272,150
1998.................. 1,272,150 -- (172,150) 1,100,000
1999.................. 1,100,000 $7,400,000 $4,500,000 4,000,000
</TABLE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
26
<PAGE>
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The required information is hereby incorporated by reference from our Proxy
Statement for the 2000 Annual Meeting of Stockholders to be filed with the
Securities and Exchange Commission on or before March 13, 2000.
ITEM 11. EXECUTIVE COMPENSATION
The required information is hereby incorporated by reference from our Proxy
Statement for the 2000 Annual Meeting of Stockholders to be filed with the
Securities and Exchange Commission on or before March 13, 2000.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The required information is hereby incorporated by reference from the
Company's Proxy Statement for the 2000 Annual Meeting of Stockholders to be
filed with the Securities and Exchange Commission on or before March 13, 2000.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The required information is hereby incorporated by reference from the
Company's Proxy Statement for the 2000 Annual Meeting of Stockholders to be
filed with the Securities and Exchange Commission on or before March 13, 1999.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a)(1) Financial Statements. The following financial statements as set forth
on pages 19 through 41 of the Registrant's 1999 Annual Report to Stockholders
are incorporated herein by reference:
.Reports of Independent Public Accountants;
. Consolidated Balance Sheets as of December 31, 1998 and 1999;
. Consolidated Statements of Operations and Comprehensive Income for the
years ended December 31, 1997, 1998 and 1999;
. Consolidated Statements of Cash Flows for the years ended December 31,
1997, 1998 and 1999;
. Consolidated Statements of Stockholder's equity for the years ended
December 31, 1997, 1998 and 1999; and
. Notes to Consolidated Financial Statements.
(a)(2) Financial Statement Schedule. Schedules have been omitted as they are
not applicable or the required information is shown in the financial
statements or notes thereto.
(a)(3) Exhibits. The Exhibits listed on the accompanying Index to Exhibits
are filed as part of this Annual Report on Form 10-K.
(b) Reports on Form 8-K. In 1999 we filed the following Report on Form 8-K:
. On December 10, 1999, announcing a shortfall in demand from
GlaxoWellcome during 2000.
27
<PAGE>
CHIREX INC.
INDEX TO EXHIBITS
Item 14 (a) (3)
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<C> <S>
2.1* Agreement for the Sale and Purchase of the Entire Issued Share
Capital of Sterling Organics
Limited by and among Sanofi Winthrop Limited, Crossco (157)
Limited and Sanofi, dated
August 10, 1995.
2.2* Contribution Agreement by and among the Registrant, SepraChem Inc.
and the shareholders of Crossco (157) Limited listed on Schedule 1
attached thereto, dated February 7, 1996.
2.3* Agreement and Plan of Merger by and among the Registrant,
SepraChem, Sepracor, SepraChem. Merger Corporation, Roger B.
Pettman and Certain Trusts Affiliated with Victor H. Wooley, dated
as of February 6, 1996, as amended.
2.4**** Asset Purchase Agreement between ChiRex Limited, ChiRex Inc. and
Rhone Poulenc Chimie S.A.
2.5***** Asset Purchase Agreement between ChiRex Inc. and GlaxoWellcome plc
3.1* Certificate of Incorporation of the Registrant.
3.2*** Amended and Restated By-Laws of the Registrant.
4.1* Specimen Certificate for Shares of Common Stock, $.01 par value,
of the Registrant.
4.2 Amending and Restating Agreement dated December 24, 1999, between
ChiRex Inc., its subsidiaries, National Westminster Bank plc., and
the lenders and other parties named therein.
4.3***** Pledge Agreement between ChiRex Inc. and Bankers Trust Company.
10.1* 1995 Employee Stock Purchase Plan.
10.2*** 1997 Stock Incentive Plan.
10.3***** Amended and Restated 1995 Director Stock Option Plan.
10.4## Employment Agreement with Michael A. Griffith dated as of
September 1, 1998.
10.5## Amended and Restated Employment Agreement with Frank J. Wright
dated as of June 24, 1998 and Amendment No. 1 dated December 16,
1998.
10.6## Amended and Restated Employment Agreement with Jon E. Tropsa dated
as of April 15, 1998.
10.7## Employment Agreement with Ian D. Shott dated as of June 9, 1998.
10.8## Employment Agreement with Roger B. Pettman dated as of April 15,
1998.
10.9 Employment Agreement with Stuart E. Needleman dated as of February
1, 1999.
10.10 Employment Agreement with Thomas I.H. Dubin dated as of February
26, 1999.
10.11 Employment Agreement with Bruce P. Shutts dated as of July 5,
1999.
10.12*** ChiRex Pension Scheme.
10.13*** License Agreement dated as of February 3, 1997, between ChiRex
Inc. and President and Fellows of Harvard College.
10.15* Technology Transfer and License Agreement by and between the
Registrant and Sepracor, dated as of January 1, 1995.
10.16* Technology Development Agreement by and between SepraChem and
Sandoz PhaLma Ltd., dated October 1, 1995.
</TABLE>
28
<PAGE>
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<C> <S>
10.17* License Agreement by and between Sepracor and Massachusetts
Institute of Technology, dated May 5, 1989.
10.18* License Agreement by and between Sepracor and Massachusetts
Institute of Technology, dated June 21, 1991.
10.19* License Agreement by and between Sepracor and Research Corporation
Technologies, Inc., dated March 13, 1991.
10.20* License Agreement by and between Sepracor and Research Corporation
Technologies, Inc., dated September 10, 1992.
10.21* License Agreement by and between Sepracor and Tanabe Seiyaku Co.,
Ltd., dated October 30, 1990.
10.22* Toll Manufacturing Agreement by and between Sterling Organics and
Rohm and Haas (UK) Limited, dated August 27, 1987.
10.23* Supply Agreement by and between Sterling Organics and Sanofi
Winthrop Limited and Sterling Winthrop, Inc. dated June 17, 1994.
10.24* Supply Agreement by and between Sterling Organics and Sanofi S.A.,
dated August 10, 1995.
10.25* Supply Agreement by and between Sterling Organics and Sanofi S.A.,
dated August 10, 1995.
10.26* Procedural Joint Union Agreement by and between Sterling Organics
and AEEU, dated July 7, 1975.
10.27* House Agreement by and between Sterling Organics and AEEU, dated
February 1976.
10.28* Procedural Agreement by and between Sterling Organics and EESA,
dated November 3, 1977.
10.29* Agreement by and between Sterling Organics and ACTS, dated July
19, 1978.
10.30***** Supply Agreement between ChiRex Inc. and GlaxoWellcome p1c.
10.31## Consulting Agreement with Eric N. Jacobsen dated as of October 1,
1998.
10.32## Assignment Agreements to ChiRex America, Inc. dated as of May 19,
1998, of the License Agreements listed under Exhibits 10.19, 10.20
and 10.22.
10.33## Amendment No. 3 dated as of May 19, 1998, to the Technology and
Transfer Agreement.
13 ChiRex Inc. 1999 Annual Report.
21## Subsidiaries of the Registrant.
23.1 Consent of Arthur Andersen LLP.
27 Financial Data Schedule
</TABLE>
- --------
* Incorporated by reference to the corresponding exhibits in the
Registration Statement on Form S-1 previously filed by the Registrant
(File no. 33-80831).
** Incorporated by reference to the Form 8-K previously filed by the
Registrant on September 11, 1996.
*** Incorporated by reference to the corresponding exhibits in the
Registration Statement on Form S-1 previously filed by the Registrant on
February 26, 1997 (File no. 333-22401).
**** Incorporated by reference to the Form 8-K previously filed by the
Registrant on April 11, 1997.
***** Incorporated by reference to the Form 8-K previously filed by the
Registrant on November 17, 1997.
# Previously filed by the Registrant on the Company's 1996 Annual Report on
Form 10-K and is incorporated by reference.
## Previously filed by the Registrant on the Company's 1998 Annual Report on
Form 10-K and is incorporated by reference.
+ Confidential treatment received as to certain portions.
29
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, the Registrant has duly caused this Annual
Report on Form 10-K to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of Stamford, Connecticut on this 6th day of
March, 2000.
CHIREX INC.
By: /s/ Michael A. Griffith
----------------------------------
Michael A. Griffith
Chairman and Chief Executive
Officer
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, this Annual Report on Form 10-K has been
signed below by the following persons in the capacities indicated below on
this 6th day of March, 2000.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Michael A. Griffith Chairman of the Board of Directors and Chief
___________________________________________ Executive Officer (Principal Executive
Michael A. Griffith Officer)
/s/ Jon E. Tropsa Vice President, Finance (Principal Financial
___________________________________________ Officer)
Jon E. Tropsa
/s/ Eric N. Jacobsen Director
___________________________________________
Eric N. Jacobsen
/s/ Dirk H. Detert Director
___________________________________________
Dirk H. Detert
/s/ W. Dieter Zander Director
___________________________________________
</TABLE> W. Dieter Zander
30
<PAGE>
Exhibit 4.2
Schedule 3
DATED 30 October 1997
CHIREX (HOLDINGS) LIMITED
as Borrower
CHIREX (DUDLEY) LIMITED
CHIREX (ANNAN) LIMITED
as Guarantors and WCP Borrowers
CHIREX AMERICA INC
CHIREX TECHNOLOGY CENTER INC
CHIREX INC.
as Guarantors
NATIONAL WESTMINSTER BANK PLC
as Arranger
NATIONAL WESTMINSTER BANK PLC
as Agent
BANKERS TRUST COMPANY
as Security Agent
and
THE LENDERS DESCRIBED HEREIN
FACILITIES AGREEMENT
GBP 55,000,000
LINKLATERS
One Silk Street
London EC2Y 8HQ
Tel: (44-171) 456 2000
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This Agreement ("Agreement") is made on 30 October 1997
AMONG:
(1) CHIREX (HOLDINGS) LIMITED, a limited company organised under the laws of
England with registered number 3080257 with its registered office at
Dudley, Cramlington, Northumberland NE23 7QG;
(2) CHIREX INC., a corporation organised under the laws of the State of
Delaware with its principal office at 300 Atlantic Street, Suite 402,
Stamford, CT 06901, U.S.A. CHIREX AMERICA INC., a corporation organised
under the laws of the state of Delaware with its principal office at 300
Atlantic Street, Suite 402, Stamford, CT 06901, U.S.A. and CHIREX
TECHNOLOGY CENTER INC, a corporation organised under the laws of the State
of Delaware with its principal office at 300 Atlantic Street, Suite 402,
Stamford, CT 06901, U.S.A.
(3) CHIREX (DUDLEY) LIMITED, a limited company organised under the laws of
England with registered number 857670 with its registered office at Dudley,
Cramlington, Northumberland NE23 7QG, and CHIREX (ANNAN) LIMITED, a limited
company organised under the laws of England with registered number 3417229
with its registered office at Dudley, Cramlington, Northumberland NE23 7QG;
(4) NATIONAL WESTMINSTER BANK PLC, as Arranger;
(5) NATIONAL WESTMINSTER BANK PLC, as Agent;
(6) BANKERS TRUST COMPANY, as Security Agent; and
(7) THE LENDERS DESCRIBED HEREIN.
It is agreed as follows:
1 INTERPRETATION
1.1 Definitions
In this Agreement, unless the context requires otherwise, the following
expressions shall have the following meanings:
"Accountants' Report" means the reports prepared by Arthur Andersen relating
to analysis of costs of certain operations in the U.K. of the ChiRex Group,
together with the letter in respect thereof dated 16 October 1997, each
addressed to and for the benefit of, inter alia, the Finance Parties;
"Achievement Date" means the later of (i) 31 December 1998 or (ii) the first
Accounting Quarter end following the date of this Agreement as at which the
Total Debt/EBITDA Ratio, calculated as provided in Clause 13.4, is 2:1 or
lower;
"Accounting Quarter" means, subject to Clause 13.3, each successive fiscal
period of the ChiRex Group consisting of three consecutive months;
"Accounting Reference Period" means each successive financial year of the
ChiRex Group ending on or about 31 December, as such ending date may be
altered in accordance with Clause 13.3;
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"Advance" means the principal amount of the borrowing made or to be made by
the Borrower on a Drawdown Date under any of the Facilities (and includes a
WCP Advance) or, as the context requires, the principal amount thereof for
the time being outstanding;
"Advisory Capacity" has the meaning given to it in Clause 16.6.3;
"Affected Interest Period" has the meaning given to it in Clause 8.5.1;
"Affected Lender" has the meaning given to it in Clause 10.1.1;
"Agency Indemnities" has the meaning given to it in Clause 16.8.1;
"Agent" means National Westminster Bank plc acting in its capacity as agent
for the Lenders or such other agent for the Lenders as shall be appointed
pursuant to Clause 16.9;
"Amendment Effective Date" means the date on which the amendment and
restatement of this Facilities Agreement becomes effective;
"Annan Facility" means the manufacturing facility situated at Annan,
Dumfries, Scotland owned as of the date of this Agreement by ChiRex (Annan)
Limited
"Annan Note" means the note dated September 23, 1997 issued by ChiRex
(Annan) Limited to the Borrower in respect of the proceeds of the Tranche A
Facility;
"Approved Accounting Principles" means (a) with regard to the Borrower, and
the WCP Borrowers, accounting principles and practices generally accepted in
the UK consistently applied and (b) with regard to ChiRex Inc. ChiRex
Technology Center Inc. and ChiRex America Inc., accounting principles
generally accepted in the US consistently applied; "Assets" has the meaning
set forth in the Sale and Purchase Agreement;
"Arranger" means National Westminster Bank Plc;
"Auditors" means Arthur Andersen, or such other firm of accountants as the
Borrower may appoint in compliance with the provisions of Clause 13.3.3;
"Availability Period" means the period commencing on the Initial Drawdown
Date and ending on the earlier of (i) the fifth day thereafter and (ii) the
date on which the Commitments are terminated in full;
"Available Amount" means, at any time, the lesser of (i) 50% of the
cumulative Net Income of the ChiRex Group or (ii) 50% of the cumulative
Cashflow of the ChiRex Group, in each case calculated for each successive
Accounting Reference Period or part thereof beginning on the date of this
Agreement and ending on the last day of the Accounting Reference Period
ending immediately prior to such time, and in each case after making
appropriate deduction in respect of any Accounting Reference Period in which
Net Income or Cashflow, as the case may be, is negative;
"Available Currency" means (a) in respect of the Tranche A Facility, GBP
only and (b) in respect of the Tranche B Facility, euro, DEM, FF, LIT, GBP,
CHF, Yen and USD and, subject to the provisions of Clause 5.1.7, any other
currency freely available to all the Lenders in which dealings regularly
occur in the London interbank market, provided that the Agent has, prior to
selection of such currency, confirmed such availability to the Borrower;
"Borrower" means ChiRex (Holdings) Limited;
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"Business" means the business of ChiRex Inc. and its subsidiaries as
described in ChiRex Inc.'s Form 10-K with respect to its fiscal year most
recently ended prior to 30 October 1997;
"Business Day" means, in respect of each Available Currency, a day (other
than a Saturday, Sunday or public holiday) which is a day on which banks are
open for dealings in such Available Currency in the London interbank market
and (a) (in relation to any currency other than euro) on which banks are
open for business (and are not permitted by law to remain closed) in the
place where the main domestic market for such Available Currency is
situated; or (b) (in relation to euro) any TARGET DAY;
"Business Plan" means a set of five year financial projections, together
with the assumptions forming the basis thereof, prepared in connection with
the execution and delivery of this Agreement by the management of ChiRex
Inc. in respect of the consolidated operations of ChiRex Inc. and its
subsidiaries, which Business Plan shall include the initial Operating
Budget;
"Capital Expenditure" means in relation to a person or group of persons,
expenditure treated as expenditure in respect of tangible fixed assets in
accordance with the applicable Approved Accounting Principles and determined
for such person or, on a consolidated basis, for such persons (as the case
may be);
"Cashflow" means, in respect of the relevant testing period in relation to a
person or group of persons under the applicable Approved Accounting
Principles:
EBITDA, adjusted as follows, to the extent not already similarly treated in
calculating EBITDA,
PLUS:
(a) decreases in Working Capital during the relevant period, and losses on
fixed asset disposals during the relevant period;
(b) increases in provisions to the extent not previously taken into
account in Working Capital (other than deferred tax provisions);
(c) cash proceeds from the issuance of shares of capital stock in ChiRex
Inc. and cash proceeds from any Equity Sale;
(d) cash income constituting extraordinary or exceptional items; and
(e) Net Cash Proceeds of disposals during the relevant period, if
positive;
MINUS:
(f) increases in Working Capital during the relevant period and gains on
fixed asset disposals during the relevant period;
(g) Capital Expenditure paid during the relevant period which expenditure
is
(i) in accordance with the Revised Business Plan, or (ii) pursuant to the
prior written consent of the Agent;
(h) Tax paid during the relevant period;
(i) Total Debt Service, to the extent paid in cash, in respect of (i)
Financial Indebtedness under the Finance Documents, (ii) Continuing
Indebtedness,
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and (iii) Permitted Indebtedness falling within paragraph (iii) or (x)
of the definition thereof,
(j) the sum of prepayments pursuant to Clauses 7.1 (to the extent applied
pursuant to the provisions hereof to Tranche A Term Advances only) and
7.3;
(k) cash expenses constituting extraordinary or exceptional items(for
example; cash utilised for acquisitions of other companies or their
businesses and assets permitted under Clause 13.2.13);
(l) decreases in provisions to the extent not previously taken into
account in Working Capital (other than deferred tax provisions); and
(m) Net Cash Proceeds of disposals during the relevant period, if
negative;
and determined in accordance with such Approved Accounting Principles for
such person or, on a consolidated basis, for such persons (as the case may
be);
"Change of Control" means (i) ChiRex Inc. shall cease to beneficially own
and control, directly or indirectly, 100% of the issued and outstanding
shares of ChiRex America Inc. or the Borrower, or the greater of (A) 75% of
the issued and outstanding shares of capital stock of any of its other
subsidiaries or (B) the percentage of ownership necessary for ChiRex Inc. to
maintain group tax benefits with respect to its other subsidiaries; or (ii)
any person or any two or more persons acting in concert shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 under the Exchange
Act), directly or indirectly, of the equity securities of ChiRex Inc. (or
other securities convertible into such equity securities) representing 50%
or more of the combined voting power of all equity securities of ChiRex Inc.
entitled to vote in the election of director; or (iii) any person or any two
or more persons acting in concert shall have acquired the ability to
exercise management control over ChiRex Inc.;
"CHF" means the lawful currency from time to time of Switzerland;
"ChiRex (Annan) Limited" means ChiRex (Annan) Limited, a limited company
organised under the laws of England with registered number 3417229;
"ChiRex Group" means ChiRex Inc. and each direct and indirect subsidiary
thereof;
"ChiRex Inc." means ChiRex Inc., a corporation organised under the laws of
the state of Delaware;
"Code" means the United States Internal Revenue Code of 1986;
"Commitment" means, in relation to the participation of any Lender in a
Facility, the amount stated opposite its name in Schedule 1 in relation to
that Facility (or, in the case of a Transferee, the amount stated in the
Schedule to the relevant Transfer Certificate as being transferred to that
Transferee), in each case as the same may be transferred (in whole or in
part), cancelled, reduced, varied or terminated in accordance with the terms
of this Agreement;
"Continuing Indebtedness" means financial indebtedness of the ChiRex Group
identified on Schedule 8, and in each case all interest and other amounts
accrued thereon during or for the interest period current at any date of
determination, each such item of financial indebtedness being evidenced by
its related agreement, deed or other instrument in the form in existence on
the date of this Agreement, subject to such changes therein and
<PAGE>
refinancings thereof as do not materially prejudice the interests of the
Finance Parties under or in connection with the Finance Documents;
"Dangerous Substance" means any natural or artificial substance (whether in
a solid or liquid form or in the form of a gas or vapour and whether alone
or in combination with any other substance) (i) capable of causing harm to
man or any other living organism or of damaging the Environment or causing
danger to public health or welfare, including without limitation any
hazardous, toxic or dangerous waste, which is subject to regulation by any
Governmental Authority under any applicable Environmental Law, or (ii)
because of its quantity, concentration or physical or chemical
characteristics, exposure to which is limited by any applicable Governmental
Authority;
"Deed of Accession" means one or more deeds to be executed by any obligor
who becomes an Obligor after the date of this Agreement, substantially in
the form of Schedule 6, subject to variation in accordance with the laws of
the jurisdiction of organisation of the relevant Obligor which relate to the
giving of guarantees and similar undertakings, and with such amendments
thereto as the Agent may reasonably require or permit;
"Default Interest Period" has the meaning given to it in Clause 8.4.1;
"Default Rate" has the meaning given to it in Clause 8.4.1;
"DEM" means the lawful currency from time to time of the Republic of
Germany;
"Discharged Rights and Obligations" has the meaning given to it in Clause
25.3.2;
"Drawdown" means the making of the Advances hereunder;
"Drawdown Date" means the date for the making of an Advance as specified by
the Borrower in the relevant Drawdown Request;
"Drawdown Request" means a notice requesting an Advance in the form set out
in Schedule 3;
"Dudley Facility" means the manufacturing facility situated at Dudley,
Cramlington, Northumberland NE23 7QG, England, owned as of the date of this
Agreement by ChiRex (Dudley) Limited;
"Due Diligence Report (Legal)" means, collectively, (i) ChiRex Inc.'s Form
10-K with respect to its fiscal year ended 31 December 1996, (ii) the
report(s) in agreed terms previously compiled by Dibb Lupton Alsop regarding
the Annan Facility, (iii) the report(s) in agreed terms compiled by Brodies
WS regarding the Annan Facility, (iv) the report(s) in agreed terms compiled
by British Geological Survey regarding the water supply at the Annan
Facility, and (v) the report(s) in agreed terms compiled by MacFarlanes
regarding the Dudley Facility;
"EBIT" means, in respect of the relevant testing period and in relation to a
person or group of persons under the applicable Approved Accounting
Principles, EBITDA less (i) depreciation on all fixed assets, (ii)
----
amortisation of goodwill, acquisition costs and other intangible assets and
(iii) write-downs, write-offs, minority interests and other non-cash charges
in determining earnings of such person or persons for that period,
determined in accordance with such Approved Accounting Principles for such
person or, on a consolidated basis, for such persons;
"EBITDA" means, in respect of the relevant testing period and in relation to
a person or group of persons under the applicable Approved Accounting
Principles, Net Income for that
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period, determined in accordance with such Approved Accounting Principles
for such person or, on a consolidated basis, for such persons adding back
(if previously deducted) or, as the case may be, before any deduction (to
the extent that such deduction is made in the calculation of earnings) for
or on account of:
(a) Total Interest;
(b) Tax charged or credited during the relevant testing period;
(c) depreciation on fixed assets;
(d) amortisation of goodwill, acquisition costs and other intangible
assets; and
(e) write-downs, write-offs, minority interests and other non-cash charges
in determining earnings of such person or persons for that period;
and excluding the effect, positive or negative, of items which would be
regarded as extraordinary or exceptional items;
"Employee Benefit Plan" means, at any time, any "employee benefit plan" as
defined in Section 3(3) of ERISA and any "multiemployer plan" as defined in
Section 3(37) of ERISA, to which any US Obligor or any of their respective
ERISA Affiliates is contributing, or ever has contributed, or to which any
US Obligor or any of their respective ERISA Affiliates has, or ever has had,
an obligation to contribute;
"Environment" consists of all, or any, of the following media: the air,
water as ground water, surface water, drinking water supplied, vapour and
ice, and land (both surface and subsurface); and the medium of the air
includes the air within buildings and air within other natural or manmade
structures, above or below ground and "Environmental" shall be construed
accordingly;
"Environmental Claim" means (i) any threatened or instituted claim, demand,
accusation, allegation or notice of violation, in each case made in writing,
against any Obligor or any of their respective subsidiaries (not being a
purely vexatious, frivolous or specious claim) by any person (x) in respect
of any loss or liability suffered or incurred by that person as a result or
in connection with any violation of Environmental Law or (y) giving rise to
any remedy or penalty that may be enforced or assessed by private or public
legal action in connection with Environmental Contamination or (ii) any
remedial action or action to comply that any Obligor or any of their
respective subsidiaries is obliged to undertake pursuant to Environmental
Law in connection with Environmental Contamination, or (iii) any application
for any interim or final judicial or administrative decree, injunction,
cease and desist order, abatement order, compliance order, consent order,
consent decree, settlement agreement, request for information, clean-up
order or enforcement notice, stop notice, improvement notice, prohibition
notice or revocation order against any Obligor or any of their respective
subsidiaries in respect of Environmental Contamination;
"Environmental Contamination" means the following and the consequences
resulting therefrom: any condition connected with any emission, release,
leakage, spillage, or presence, use, leaching or migration (in any case
whenever occurring), of Dangerous Substances at or from any site (or the
migration of a Dangerous Substance from surrounding property or groundwater
in, into or onto any site) owned or operated by any Obligor or any of their
respective subsidiaries, and any residual Dangerous Substance on or under
any site owned or operated by any Obligor or any of their respective
subsidiaries including (without limitation) the storage, keeping, handling,
labelling, transfer or disposal
<PAGE>
of Dangerous Substances, to the extent any of the foregoing results in a
breach of any Environmental Law or has given or could reasonably be expected
to give rise to an Environmental Claim;
"Environmental Event" means any event (whenever occurring) which constitutes
a breach of any Environmental Law or which has given or could reasonably be
expected to give rise to an Environmental Claim;
"Environmental Law" means all present and future laws, regulations,
ordinances, permits guidance documents or other requirements having legal
effect in any jurisdiction in which any Obligor carries on business or owns
assets, or in the European Union as a whole, concerning the protection of
the Environment, human health and safety or the control of Dangerous
Substances;
"Environmental License" means any permit, license, authorisation, plan,
consent order or consent decree of or from any Governmental Authority;
"Environmental Report" means such reports or other documents from the
Obligors and/or third parties in form and substance satisfactory to the
Agent to be provided to the Agent in connection with the execution and
delivery of the Agreement, compiling information relating to compliance by
the Obligors with, and liabilities of the Obligors under, applicable
Environmental Laws, including the following documents: (i) Environmental
Phase I Survey of Annan Facility, dated September 1997, prepared by Dames &
Moore, (ii) Environmental Phase 1 Survey of Dudley Facility, dated August
1995, prepared by Peter Brett Associates, (iii) Environmental Phase I Update
of Dudley Facility, dated November 1995, prepared by Environmental Resources
Management, and (iv) management letter dated 30 October 1997, relating to
environmental updates in respect of the Dudley Facility;
"Equity Sale" means the sale or transfer of equity securities in any direct
or indirect subsidiary of ChiRex Inc., which sale or transfer dilutes the
aggregate percentage equity ownership (direct or indirect) of ChiRex Inc. in
such subsidiary;
"Equivalent Amount" means the amount of a currency other than GBP that can
be purchased with GBP calculated on the basis of the Agent's spot rate of
exchange for the purchase of such other currency with GBP on the date such
calculation is to be made (such calculation to be made, for the purpose of
determining the amount available to be drawn under the Tranche B
Multicurrency Revolving Facility, on the Rate Fixing Day applicable to the
relevant Drawdown Date);
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute;
"ERISA Affiliate", as applied to any person, means any entity required to be
treated with any US Obligor as a single employer under Section 414 of the
Internal Revenue Code;
"Event of Default" means one of the events specified in Clause 14.1;
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and any successor statute;
"Facilities" means the Tranche A Facility and the Tranche B Facility
(including the WCP Facilities) not in excess of the Total Commitments
granted to the Borrower and (in the case of the WCP Facilities) the WCP
Borrowers hereunder (as the same may be reduced in accordance with the terms
of this Agreement);
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"Facility Amount" means (i) in the case of the Tranche A Term Facility, GBP
30,000,000, and (ii) in the case of the Tranche B Multicurrency Revolving
Facility, GBP 25,000,000, or the Equivalent Amount thereof, in each case as
the same may be reduced or cancelled pursuant to the terms of this
Agreement;
"Fees Letter" means the letters from ChiRex Inc. to National Westminster
Bank plc in the agreed terms setting out details of the fees payable
pursuant to Clause 11.1.1(c);
"FF" means the lawful currency from time to time of the Republic of France;
"Final Repayment Date" means the earlier of (a) December 31 2004 and (b) the
date on which the Commitments are terminated in full in accordance with the
terms of this Agreement;
"Finance Documents" means this Agreement, the Fees Letter, each WCP
Agreement, each Transfer Certificate, each Security Document, each Deed of
Accession and any other document expressed to be made supplemental to,
amending and/or modifying any of the foregoing or entered into pursuant
hereto or thereto, and "Finance Document" means any of them;
"Finance Indemnities" has the meaning given to it in Clause 27.1;
"Finance Parties" means the Arranger, the Agent, the Security Agent, each
Lender and each WCP Provider, and "Finance Party" means any of them;
"Financial Indebtedness" means, without duplication, any indebtedness in
respect of or arising under or in connection with:
(i) moneys borrowed including, without limitation, on a contractually
subordinated basis;
(ii) any debenture, bond, note or loan stock or other similar instrument;
(iii) any acceptance or documentary credit (except, in the case of
documentary credits, those issued in support only of liabilities to
trade creditors incurred in the ordinary course of business and
having a term of not more than 90 days);
(iv) receivables sold or discounted in a transaction other than one in
respect of which (a) no recourse exists against any Obligor and no
Obligor has any obligation to repurchase, or make any payment in
respect of deficiencies in collection of, any receivables, and (b) no
Obligor has the right or obligation to sell, discount or otherwise
dispose of receivables in addition to those transferred on the
initial funding date of the transaction;
(v) the acquisition cost of any asset to the extent payable after the
time of acquisition or possession by the person liable as principal
obligor for the payment thereof where the deferred payment is
arranged primarily as a method of raising finance or financing or
refinancing the acquisition of the asset acquired (which, for the
avoidance of doubt, shall not include liabilities to trade creditors
incurred in the ordinary course of business and having a term of not
more than 90 days);
(vi) the sale price of any asset to the extent paid before the time of
sale or delivery by the person liable to effect such sale or delivery
where the advance payment is arranged primarily as a method of
raising finance or financing or refinancing the manufacture,
assembly, acquisition or holding of the asset to be sold;
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(vii) finance leases, credit sale or conditional sale agreements (whether
in respect of land, buildings, plant, machinery, equipment or
otherwise) entered into primarily as a method of raising finance or
financing or refinancing the acquisition of the relevant asset (but
not including liabilities under operating leases);
(viii) the amount payable under any put option or other arrangement whereby
the Borrower or any of its subsidiaries is liable to purchase share
capital or other securities issued;
(ix) any guarantee, indemnity or similar assurance against financial loss
of any person in respect of obligations of the type described in the
preceding paragraphs (i) to (viii);
(x) any guarantee, endorsement or other undertaking of responsibility
for any obligations of any other person, whether (a) directly or
indirectly by agreement to purchase the Financial Indebtedness of
any other person, or (b) through the purchase of goods or other
assets, supplies or services, or maintenance of working capital or
other balance sheet covenants or conditions, or by way of stock
purchase, capital contribution, advance or loan which, in any case
in this subclause (b), is entered into for the purpose of paying or
discharging any Financial Indebtedness of such other person or
assuring the holder of such Financial Indebtedness or obligation
against loss in respect thereof;
(xi) amounts raised under any other transaction having as a primary, and
not an incidental effect, the commercial effect of a borrowing;
(xii) debts incurred in the ordinary course of business which remain
unpaid for more than 60 days after their due date for payment,
including for this purpose debts which upon their incurrence are
within the exceptions set forth in paragraph (iii) above (other than
debts which are being diligently contested in good faith unless the
Agent reasonably believes that there is no reasonable prospect of
success); or
(xiii) net amounts payable under any interest rate or currency swap, collar
or other similar agreement or any other hedging or derivative
instrument, the amount of Financial Indebtedness being attributable
thereto being 10% of the face or notional amount of the relevant
agreement, or in each case such lower percentage as shall be
reasonably approved by the Agent;
"GBP" means the lawful currency from time to time of the United Kingdom;
"Glaxo Group Limited" means Glaxo Group Limited, a company organised under
the laws of England, whose registered office is at Glaxo Wellcome House,
Berkeley Avenue, Greenford, Middlesex UB6 0NN;
"Glaxo Operations UK Limited" means Glaxo Operations UK Limited, a company
organised under the laws of England, whose registered office is at Glaxo
Wellcome House, Berkeley Avenue, Greenford, Middlesex UB6 0NN;
"Governmental Authority" means any domestic or foreign court or governmental
body, department, agency, commission, authority or instrumentality;
"Guarantees" means the guarantees by the Guarantors pursuant to Clause 15;
<PAGE>
"Guarantor" means, together ChiRex Inc., ChiRex (Dudley) Limited, ChiRex
(Annan) Limited, ChiRex Technology Center Inc and ChiRex America Inc and/or
other guarantors acceptable to the Lenders;
"Holdings Note" means the promissory note issued by the Borrower to ChiRex
Inc. on 30 October 1997 in the principal amount of USD 38,234,000;
"ICTA" means the Income and Corporation Taxes Act 1988, as the same may be
amended from time to time;
"Industry Report" means the report by Chem. Systems, together with the
letter in respect thereof, each addressed to and for the benefit of, inter
alia, the Finance Parties;
"Information Memorandum" means the document containing information relating
to the Business prepared in connection with this Agreement by the Agent and
the ChiRex Group and distributed by the Agent to the Lenders and potential
Lenders;
"Initial Drawdown" means the making of the first Advance hereunder, which
Advance must in any event be an amount sufficient to discharge all fees due
and payable on the Initial Drawdown Date pursuant to Clause 11.1.1;
"Initial Drawdown Date" means the date of the Initial Drawdown, which date
shall occur on or after each of the conditions set forth in Clause 4.1 have
been satisfied or waived by the Agent, and which date shall occur on or
before the tenth Business Day after the date of this Agreement;
"Intellectual Property" means all patents and patent applications, trade
and/or service marks and trade and/or service mark applications (and all
goodwill associated with such applications), all brand and trade names, all
copyrights and rights in the nature of copyright, all design rights, all
registered designs and applications for registered designs, all trade
secrets, know-how and all other intellectual property rights now or in the
future owned by any Obligor throughout the world or the interest of any
Obligor in any of the foregoing now or in the future, together with the
benefit of all present and future agreements entered into or the benefit of
which is enjoyed by any Obligor relating to the use or exploitation of any
of the aforementioned rights;
"Interest Coverage Ratio" means, at any time, the ratio of (i) consolidated
EBITDA for the immediately preceding four Accounting Quarters, to (ii) Total
Interest for the immediately preceding four Accounting Quarters, in each
case in respect of the ChiRex Group;
"Interest Payment Date" means, in relation to an Advance, the date
determined pursuant to Clause 8.2;
"Interest Period" means a period by reference to which interest is
calculated and payable on an Advance or an overdue sum, and includes a
Default Interest Period;
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
to the date hereof and from time to time hereafter;
"Lender" and "Lenders" means the persons identified as "Lenders" and
listed on the signature pages of this Agreement, or, as the case may be, an
assignee or Transferee therefrom to whom rights and/or obligations are
assigned or transferred in accordance with Clause 25.2 or 25.3, and includes
a successor of any such person;
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"Lending Office" means in relation to a Lender, the office or offices
through which it is acting for the purpose of this Agreement, which office
or offices initially are set out in Schedule 1;
"LIBOR" means, in relation to any Advance or any overdue sum:
(a) the rate determined by the Agent to be the arithmetic mean (rounded
upwards, if necessary, to the nearest five decimal places) of the
offered quotations for deposits in the relevant Available Currency for
a period equal to the Interest Period relating to that Advance (or
overdue sum) which appear on the Telerate Display Screen page number
3750 (or such other page(s) as may replace such pages from time to
time on that system) at or about 11.00 a.m. (London time) on the
relevant Rate Fixing Day; or
(b) if no such offered quotations appear on the relevant page as aforesaid
the arithmetic mean (rounded upwards, if necessary, to the nearest
five decimal places) of the respective rates, as supplied to the Agent
at its request, quoted (subject to Clause 8.1.3) by the Reference
Lenders to prime lenders in the London Interbank Market at or about
11.00 a.m. (London time) on the relevant Rate Fixing Day for the
offering of deposits in the relevant Available Currency and in an
amount comparable to the amount of, and for a period equal to the
Interest Period relating to, that Advance (or overdue sum) for
delivery on the first day of that Interest Period;
"LIT" means the lawful currency from time to time of Italy;
"Loan" means the aggregate principal amount of all Advances for the time
being outstanding under this Agreement, and "Tranche A Term Loan" and
"Tranche B Multicurrency Revolving Loan" shall be construed accordingly;
"Majority Lenders" means one or more Lenders, the sum of whose Relevant
Amounts equals or exceeds 51 per cent (51%) of the aggregate of the Relevant
Amounts of all the Lenders;
"Mandatory Costs" means the percentage rate per annum calculated by the
Agent in accordance with Schedule 5;
"Margin" means the applicable margin, tested as at the last day of the
immediately preceding Accounting Quarter, and determined in accordance with
the following matrix:
Total Debt/EBITDA Ratio Applicable Margin
- ------------------------------------------------------------------------------
If equal to or greater than 4.25:1 2.00%
- ------------------------------------------------------------------------------
If equal to or greater than 3.75:1, but less than 4.25:1 1.75%
- ------------------------------------------------------------------------------
If equal to or greater than 2.75:1, but less than 3.75:1 1.50%
- ------------------------------------------------------------------------------
If equal to or greater than 1.75:1, but less than 2.75:1 1.25%
- ------------------------------------------------------------------------------
If less than 1.75:1 1.00%
- ------------------------------------------------------------------------------
Provided that any reduction or increase in the Margin shall take effect as
from the date of receipt by the Agent of the relevant accounts in accordance
with Clause 13.3.4 (on the basis that in the case of a reduction or increase
taking effect during an Interest Period the
<PAGE>
interest payable on the Interest Payment Date will reflect such reduction or
increase on a time apportioned basis);
"Margin Stock" means margin stock within the meaning of Regulations G, T, U
and X of the Board of Governors of the Federal Reserve System of the US;
"Material Adverse Effect" has the meaning given thereto in Clause 1.2.5;
"Material Agreement" means, at any time, any agreement or group of related
agreements (including for the avoidance of doubt the Supply Agreement) (i)
to which, individually or in the aggregate, is attributable (on a reasonable
estimation basis) 10% or more of either the gross turnover or the EBITDA of
the ChiRex Group for the Accounting Reference Period then in effect, or (ii)
the termination or non-performance of which would constitute a Material
Adverse Effect;
"Material Subsidiary" means any direct or indirect subsidiary of ChiRex Inc.
other than a subsidiary that has been designated in writing by the Agent as
a Non-Material Subsidiary; provided that upon each such designation, ChiRex
Inc. shall deliver a certificate signed on behalf of ChiRex Inc. by two of
its officers, certifying that (i) the aggregate gross turnover of the Non-
Material Subsidiaries as at such date does not exceed 10% of the gross
turnover of ChiRex Inc. and its subsidiaries as at such date, (ii) the
aggregate gross assets of the Non-Material Subsidiaries as at such date does
not exceed 10% of the gross assets of ChiRex Inc. and its subsidiaries as at
such date, and (iii) the aggregate EBITDA of the Non-Material Subsidiaries
as at such date does not exceed 10% of the EBITDA of ChiRex Inc. and its
subsidiaries as at such date. For this purpose:
(a) in the case of a person which itself has subsidiaries, the calculation
shall be made by using the consolidated gross turnover or gross assets
or EBITDA of it and its subsidiaries; and
(b) the calculation of consolidated gross turnover or gross assets or
EBITDA shall be made by reference to:
(i) the accounts of the relevant subsidiary (or, as the case may be,
a consolidation of the accounts of it and its subsidiaries) used
for the purpose of the then latest unaudited quarterly or audited
annual consolidated accounts of ChiRex Inc. delivered to the
Agent under Clause 4. 1.1 or 13.3 (as the case may be) or, in the
case of a newly acquired or formed subsidiary, the most recent
unaudited quarterly or audited annual accounts of the relevant
subsidiary (or, as the case may be, a consolidation of the
accounts of it and its subsidiaries), provided such accounts
report a period ending no earlier than six months from the date
of such calculation; and
(ii) the unaudited quarterly or audited annual consolidated accounts
(as the case may be) of ChiRex Inc. on a pro forma basis together
with any newly- acquired or formed subsidiary described in
sub-clause (b)(i) of this definition;
"Multiborrower Revolving Note" means the note(s) dated the date hereof to be
issued by each member of the ChiRex Group (other than the Borrower) to the
Borrower and/or WCP Borrowers (as appropriate) in respect of the proceeds of
the Tranche B Facility;
"Net Cash Proceeds" means the remainder of cash proceeds arising from the
disposal of any fixed asset or any part of the business of any Obligor, or
from any Equity Sale, after
<PAGE>
deducting (i) in the case of such a disposal, required repayment of
Financial Indebtedness secured by such asset and/or Financial Indebtedness
incurred to purchase such asset or business (or any refinancings thereof),
(ii) reasonable costs related to such Equity Sale or disposal, and (iii)
reasonable provision for Taxes attributable to such Equity Sale or disposal;
"Net Income" means, in respect of any period and in relation to:
(a) the Borrower, the profit shown on the Borrower's profit and loss
account for such period, determined in accordance with Approved
Accounting Principles; or
(b) the ChiRex Group, the profit shown on the profit and loss account on a
consolidated basis for the ChiRex Group for such period, determined in
accordance with the applicable Approved Accounting Principles,
provided that there shall be excluded (i) the profit of any person
(other than any Obligor) in which any other person (other than any
Obligor or any of their respective subsidiaries) has a joint interest,
except to the extent of the amount of dividends or other distributions
actually paid to any Obligor or any of their respective subsidiaries
by such person during such period and (ii) the profit of any person
accrued prior to the date it becomes a subsidiary of any Obligor or
any of their respective subsidiaries or is merged into or consolidated
with any Obligor or any of their respective subsidiaries or that
person's assets are acquired by any Obligor or any of their respective
subsidiaries;
"Net Tranche B Multicurrency Revolving Commitment" means, in relation to any
Lender, its Tranche B Multicurrency Revolving Commitment less, to the extent
it is a WCP Provider under the Tranche B Facility, the amount of its WCP
Commitment under the Tranche B Facility pursuant to Clause 3.6.1 from time
to time;
"Non-Material Subsidiary" means a subsidiary of ChiRex Inc. that is not a
Material Subsidiary;
"Obligor" means the Borrower, the WCP Borrowers, Guarantor and any other
member of the ChiRex Group which is or becomes a party to a Finance
Document;
"Operating Budget" means a budget for the ChiRex Group in form and scope
reasonably satisfactory to the Agent and consistent with the financial
reporting of the ChiRex Group (including budgeted statement of income, and
sources and uses of cash and balance sheets);
"Participating Member State" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency in
accordance with legislation of the European Union relating to European
Monetary Union;
"Participation" means, in relation to a Lender and a Facility, its right,
title, interest and obligations in relation to such Facility, namely:
(a) its right to receive its Participation Proportion of principal and
interest in respect of outstanding Advances under the Facility
including its right to any consequential payment pursuant to Clause
3.7.1; and
(b) its obligation to participate in its Participation Proportion in
future Advances up to the limit of that Facility;
<PAGE>
"Participation Proportion" means, in relation to a Lender and a Facility,
the proportion in which that Lender has agreed to participate in that
Facility pursuant to Clause 3.1 (Basis of Participation) and subject to
Clause 3.6 (the WCP Facilities);
"PBGC" means the Pension Benefit Guaranty Corporation (or any successor
thereto);
"Permitted Indebtedness" means, in relation to the Obligors:
(i) Financial Indebtedness outstanding under any of the Facilities;
(ii) the Continuing Indebtedness (and refinancings thereof), provided
that the principal amount thereof shall not be increased after the
date of this Agreement;
(iii) finance leases, hire purchase and conditional sale agreements in
relation to which the maximum aggregate liability on termination of
such leases or agreements would not exceed in aggregate GBP
1,000,000 (or its equivalent);
(iv) guarantees, indemnities or bonds given in the ordinary course of
trading activities;
(v) Financial Indebtedness arising from a loan or credit permitted by
Clause 13.2.12;
(vi) Financial Indebtedness (and any refinancings thereof) of any person
which, by way of acquisition after the date of this Agreement, will
be consolidated on the ChiRex Group's financial statements,
provided that: (i) such Financial Indebtedness was subsisting prior
to the date of the person's acquisition, (ii) such Financial
Indebtedness was not incurred in contemplation of or in connection
with the acquisition, (iii) the principal amount of such Financial
Indebtedness shall not have been and shall not be increased after
the date of such acquisition above the amount outstanding on such
date or, if greater, the maximum amount available to be drawn under
the documentation governing such Financial Indebtedness as in
effect on such date, and (iv) the aggregate amount of such
Financial Indebtedness outstanding at any one time, when added to
that outstanding and permitted pursuant to item (x) of this
definition, shall not exceed GBP 10,000,000 (or its equivalent);
(vii) Financial Indebtedness in connection with the provision of customs
bonds required in the ordinary course of trading of the relevant
person;
(viii) Permitted Subordinated Debt;
(ix) guarantees, indemnities or similar assurances given by an Obligor
in respect of obligations of another member of the ChiRex Group
which is a Tier I Guarantor, the guaranteed obligations in each
case in this paragraph (ix) being themselves permitted under this
Agreement;
(x) Financial Indebtedness not falling within any other paragraph of
this definition in a principal amount which when added to Financial
Indebtedness outstanding and permitted pursuant to item (vi) of
this definition, does not exceed GBP 10,000,000 (or its equivalent)
at any one time outstanding; and
(xi) any other Financial Indebtedness incurred with the consent of the
Agent (acting on the instructions of the Majority Lenders);
"Permitted Investment" means, in relation to the Obligors:
(i) cash;
<PAGE>
(ii) commercial paper maturing not more than nine months from the date
of issue and rated at least A-1 by Standard & Poor's Ratings Group
or P-1 by Moody's Investors Service, Inc.;
(iii) any deposit of not more than one year's maturity with, or
acceptance maturing not more than one year after issue accepted by,
a bank or credit institution which has a combined capital and
surplus and undistributable profits of not less than GBP
100,000,000 (or its equivalent) and whose short term unsecured,
unsubordinated debt rating is at least A-1 by Standard & Poor's
Ratings Group or P-1 by Moody's Investors Service, Inc.;
(iv) securities issued or directly and fully guaranteed or insured by
the governments of Great Britain or the United States of America or
any agency or instrumentality thereof having maturities of not more
than one year from the date of acquisition;
(v) repurchase obligations with a term of not more than seven days
fully collateralised by underlying securities of the types
described in paragraphs (ii) and (iii) above entered into with any
bank meeting the qualifications specified in paragraph (iii) above;
(vi) debt securities having not more than one year until final maturity
and listed on a recognised stock exchange and rated at least Aa by
Moody's Investors Service, Inc. or AA by Standard & Poor's Ratings
Group;
(vii) loans or credits permitted pursuant to Clause 13.2.12;
(viii) investments in the ordinary course of the trading business of the
relevant person; and
(ix) investments in subsidiaries in the respective amounts in effect on
the date of this Agreement;
--------------------------
"Permitted Security Interest" means, in relation to the Obligors:
(i) Security Interests granted with the consent of the Agent (acting on
the instructions of the Majority Lenders);
(ii) liens arising and subsisting by operation of law and in the
ordinary course of business activities;
(iii) rights of set-off existing in the ordinary course of trading
activities between such Obligor and its suppliers or customers, and
rights of set-off arising by operation of law by virtue of the
provision to such person of bank clearing facilities or overdraft
facilities permitted hereunder;
(iv) any retention of title to goods supplied to such Obligor where such
retention is permitted by the relevant person in the ordinary
course of its trading activities and on customary terms;
(v) Security Interests securing Financial Indebtedness referred to in
paragraph (vi) of the definition of "Permitted Indebtedness",
provided that: (i) such Security Interest was subsisting prior to
the date of the person's acquisition by such Obligor, (ii) such
Security Interest was not granted in contemplation of or in
connection with the acquisition, and (iii) the principal Financial
Indebtedness secured by any such Security Interest shall not be
increased after the date of such acquisition;
<PAGE>
(vi) Security Interests securing the Continuing Indebtedness on the date
of this Agreement, provided that the principal Financial
Indebtedness secured by any such Security Interest shall not be and
shall not have been increased after such date;
(vii) Security Interests covering assets the subject of equipment and
finance leases, hire purchase, conditional sale or similar
arrangements entered into by such Obligor which are permitted by
this Agreement;
(viii)Security Interests arising in respect of any escrow arrangements
put into place for the purpose of a disposal or acquisition by such
Obligor permitted by this Agreement; and
(ix) Security Interests of such Obligor not falling within any other
paragraph of this definition securing Financial Indebtedness
(including interest and fees relating thereto) which does not
exceed GBP 100,000 (or its equivalent) at any one time;
in each case, other than any of the aforementioned imposed pursuant to
Section 401(1)(29) or 412(n) of the Internal Revenue Code or by ERISA;
"Permitted Subordinated Debt" means unsecured Financial Indebtedness of the
Obligors provided that either (i) such Financial Indebtedness is
subordinated to the Financial Indebtedness outstanding under the Finance
Documents upon terms in all respects reasonably satisfactory to the Agent
taking into consideration the market in or into which it is issued, or (ii)
the terms of subordination of such Financial Indebtedness provide, without
limitation, that:
(a) such Financial Indebtedness shall not amortise prior to the final date
of maturity, which date shall be no earlier than 31 December 2004;
(b) no amount in respect of principal of such Financial Indebtedness (by
way of purchase, redemption or otherwise) shall be paid until all
amounts which may be or become payable under the Finance Documents
have been irrevocably paid in full and all Commitments hereunder shall
have terminated, except on terms and conditions reasonably
satisfactory to the Majority Lenders and the Agent;
(c) no amount in respect of interest on such Financial Indebtedness may be
paid until all amounts which may be or become payable under the
Finance Documents have been irrevocably paid in full and all
Commitments hereunder shall have terminated, except on terms and
conditions reasonably satisfactory to the Majority Lenders and the
Agent;
(d) no default in respect of such Financial Indebtedness shall arise and
the lender thereof shall waive any available remedies as a result
thereof until all amounts which may be or become payable under the
Finance Documents have been irrevocably paid in full and all
Commitments hereunder shall have terminated;
(e) each lender in respect of such Financial Indebtedness shall agree that
it will not accelerate any such Financial Indebtedness or otherwise
declare it prematurely payable, enforce any such Financial
Indebtedness (to the maximum extent permitted by law), petition for or
otherwise take any steps with a view to any insolvency, liquidation,
re-organisation, administration or dissolution proceedings or any
voluntary arrangement or assignment for the benefit of creditors or
any similar proceedings, including without limitation any event
referred to in Clause 14.1.5 to
<PAGE>
Clause 14.1.10 (inclusive) involving any member of the ChiRex Group or
otherwise exercise any rights or pursue any remedy for the recovery of
such Financial Indebtedness or in respect of any breach of covenant,
misrepresentation or non-observance of any provision of such Financial
Indebtedness, in each case, until all amounts which may be or become
payable under the Finance Documents have been irrevocably paid in full
and all Commitments hereunder shall have been terminated; and
(f) each lender in respect of such Financial Indebtedness shall agree to
turn over to the Agent all payments and distributions received in
respect of any proceeding referred to in Clause 14.1.5 to Clause
14.1.10 (inclusive) involving the Borrower and/or the WCP Borrowers
(as the case may be), and any other amount paid in a manner
inconsistent with clauses (a) and (b) of this definition, for
application by the Agent to the satisfaction of outstandings under
this Agreement until all amounts which may be or become payable under
the Finance Documents have been irrevocably paid in full and all
Commitments hereunder shall have been terminated;
"Potential Event of Default" means any event which, with the giving of
notice or the lapse of time or both or the making of any determination or
the fulfilment of any condition, will constitute an Event of Default,
provided that such notice, lapse of time, determination or condition is in
any case specified or referred to in the relevant Event of Default as set
forth in Clause 14.1;
"Qualifying Lender" means an institution which is (i) a bank resident in the
UK for the purpose of Section 349 of the Income and Corporation Taxes Act
1988 (as in effect on the date of this Agreement) and is beneficially
entitled to its Participation Proportion of interest due on the Advances or
(ii) a bank lending through any other branch, affiliate or agency if the
bank or affiliate (as the case may be) is resident in a country with which
the United Kingdom has an appropriate double taxation treaty pursuant to
which that bank or affiliate (as the case may be) is entitled to receive
principal, interest and fees under this Agreement from the Borrower without
withholding of United Kingdom income Tax or is otherwise entitled to receive
principal, interest and fees without such withholding;
"Rate Fixing Day" means, in relation to an Advance, the Business Day being
two Business Days prior to the Drawdown Date for that Advance and, in
relation to any Interest Period, the Business Day being two Business Days
prior to the first day of that Interest Period provided that, (i) in
relation to an Advance denominated in GBP the Rate Fixing Day shall be the
Drawdown Date or, as the case may be, the first day of the relevant Interest
Periodand (ii) in relation to an Advance denominated in any of the legacy
currencies of the euro, the Rate Fixing Day shall be the Target Day being
two Target Days prior to the Drawdown Date for that Advance and, in relation
to any Interest Period, the Target Day being two Target Days prior to the
first day of that Interest Period;
"Recovering Lender" has the meaning given to it in Clause 19.1;
"Recovery" has the meaning given to it in Clause 19.1;
"Reference Lenders" means, subject to Clause 25.5.2, National Westminster
Bank plc and HSBC Bank plc;
"Relevant Amounts" means, in relation to a Lender, the aggregate from time
to time of (a)(i) before the making of the initial Advances, its Commitments
or (ii) after the making of
<PAGE>
the initial Advances, all Advances made by it then Outstanding, or (b) if
the Commitments have been terminated, all Advances made by it then
outstanding;
"Repayment Dates" means the semi-annual dates commencing on 31 December
1999, as detailed in Schedule 2;
"Repayment Schedule" means the repayment schedule for the Tranche A Term
Facility which is set out in Schedule 2;
"Reservations" means limitations on enforceability of legal documents
dictated by local law and used as qualifications in legal opinions delivered
to and accepted by the Agent in connection with the Initial Drawdown or the
accession of a Guarantor pursuant to a Deed of Accession;
"Restricted Payment" means any of (i) the redemption, purchase, retirement
or acquisition by ChiRex Inc. of any shares, warrants or other equity
related securities issued by it, or the setting apart by it of any sum for
such purpose, or other reduction by it of its capital, (ii) the declaration
or payment by ChiRex Inc. or making of any other distribution on any
ordinary or other shares issued by it, and (iii) before the Achievement Date
only, the incurrence of any Capital Expenditure by the ChiRex Group in
excess of that set forth for the relevant Accounting Reference Period in the
Revised Business Plan;
"Revised Business Plan" means a set of five year financial projections,
together with the assumptions forming the basis thereof, prepared in
connection with the execution and delivery of this Agreement by the
management of ChiRex Inc. in respect of the consolidated operations of
ChiRex Inc. and its subsidiaries, which Business Plan shall include the
Operating Budget then current;
"Revolving Lenders" means any Lender participating in the Tranche B
Multicurrency Revolving Facility;
"Sale and Purchase Agreement" means the Agreement in the agreed terms dated
23 September 1997 between Glaxo Group Limited and ChiRex (Annan) Limited for
the Sale and Purchase of the Business and Assets of Glaxo Group Limited
operated from its site at Annan, Dumfries, Scotland;
"Same Day Funds" means funds settled for value on the same day throughout a
clearing system relevant for the currency concerned and such other funds as
the Agent shall specify as being customary at the time for such settlement;
"Scheme" means the ChiRex Pension Plan as established by an interim trust
deed dated 5 February, 1996;
"SEC" means the United States Securities and Exchange Commission (or any
successor thereto);
"Second Drawdown Date" means the date falling at any time on or before the
tenth Business Day after the Amendment Effective Date;
"Security Agent" means Bankers Trust Company as agent for the Finance
Parties under the Security Documents or any other person as may from time to
time hold the whole or any part of the security created thereby pursuant to
Clause 16;
"Security Documents" means each of:
<PAGE>
(a) Pledge Agreement dated 30 October 1997 between the Security Agent, on
behalf of the Lenders, and ChiRex Inc. relating to all the issued and
outstanding shares of capital stock of ChiRex America Inc. and the
Borrower, and the Holdings Note;
(b) Debenture dated as of 30 October 1997 between the Security Agent, on
behalf of the Lenders, and the Borrower relating to all the issued and
outstanding shares of ChiRex (Dudley) Limited and ChiRex (Annan)
Limited, the Annan Note and the Multiborrower Revolving Notes;
(c) Debenture dated 30 October 1997 by ChiRex (Dudley) Limited in favour
of the Security Agent, on behalf of the Lenders, relating to the
Dudley Facility and certain other assets of ChiRex (Dudley) Limited;
(d) Debenture dated 30 October 1997 by ChiRex (Annan) Limited in favour of
the Security Agent, on behalf of the Lenders, relating to certain
assets of ChiRex (Annan) Limited; and
(e) Standard Security in agreed terms dated 13 November 1997 by ChiRex
(Annan) Limited in favour of the Security Agent, on behalf of the
Lenders, relating to the Annan Facility;
(f) Technology Pledge.
in each case as the same may be amended, from time to time, in accordance
with its terms;
"Security Interest" means any mortgage, charge (fixed or floating), standard
security, pledge, lien, right of set-off hypothecation, trust, assignment by
way of security, reservation of title, or any other security interest
whatsoever, howsoever created or arising or any other agreement or
arrangement (including, without limitation, a sale and repurchase
arrangement) having the practical effect of conferring security, and any
agreement to enter into, create or establish any of the foregoing;
"Security Property" means all rights, title and interest in to and under the
Security Documents, including:
(i) all assets of the relevant Obligors charged under the Security
Documents;
(ii) the benefit of the undertakings contained in the Security Documents;
and
(iii) all sums received by the Security Trustee under or pursuant to any
Security Document and any asset representing the same.
"Standard Security" means a standard security in terms of the Conveyancing
and Feudal Reform (Scotland) Act 1970;
"Supply Agreement" means the agreement for the manufacture and supply of
certain active ingredients and intermediates for use in pharmeceutical
products between (1) Glaxo Operations (UK) Limited (2) ChiRex (Annan)
Limited and (3) ChiRex (Holdings) Limited and dated 30 October 1997;
"Syndication" has the meaning set forth in Clause 3.5;
"TARGET "means Trans-European Automated Real-time Gross Settlement Express
Transfer payment system;
<PAGE>
"TARGET Day" means any day on which TARGET is open for the settlement of
payments in euro;
"Taxes" means and includes all present and future income and other taxes,
levies, assessments, imposts, deductions, charges, duties, compulsory loans
and withholdings whatsoever and wheresoever imposed and any charges in the
nature of taxation together with interest thereon and penalties and fines
with respect thereto, if any, and any payments made on or in respect
thereof, and "Tax" and "Taxation" shall be construed accordingly;
"Technology Pledge" means the pledge in form and substance satisfactory to
the Security Agent to be given by ChiRex Technology Center Inc. in favour of
the Security Agent, on behalf of the Lenders over its assets, incorporating
the assets acquired from Cauldron Inc;
"Tier 1 Guarantor" means any Guarantor which (i) has guaranteed all
obligations of each Obligor hereunder and the amount of which guarantee is
not subject to any limitation hereunder or under any Deed of Accession, if
applicable, and (ii) for the purpose of securing such guarantee, has entered
into one or more Security Documents in favour of the Security Agent creating
in favour of the Security Agent a valid, perfected, first priority Security
Interest in all or substantially all of such Guarantor's assets;
"Total Borrowings" means, at any time, the aggregate outstanding amount of
all Financial Indebtedness of all Obligors, calculated on a consolidated
basis;
"Total Commitments" means, together, the Lenders' Commitments;
"Total Debt" means, as at any date of determination, in respect of any
person or persons, the aggregate principal amount of Financial Indebtedness
of such person or, on a consolidated basis, persons (as applicable),
determined in accordance with the applicable Approved Accounting Principles;
"Total Debt/EBITDA Ratio" means, at any time, the ratio of (i) Total Debt as
of the last day of the immediately preceding Accounting Quarter, to (ii)
consolidated EBITDA for the immediately preceding four Accounting Quarters,
in each case in respect of ChiRex Inc. (on a consolidated basis);
"Total Debt Service" means, in respect of any period and any person or
persons, the aggregate of (a) Total Interest and (b) the aggregate principal
amount of Financial Indebtedness of such person or, on a consolidated basis,
persons (as applicable) scheduled to be repaid (having regard to any
reductions in respect thereof due to previous prepayment of any such amount
where such prepayment occurred in a previous period) during such period
under the terms and conditions relating to such Financial Indebtedness;
"Total Interest" means, in respect of the relevant testing period, the
aggregate of all interest (including amounts in the nature of interest in
connection with any interest rate and/or currency swap, cap, floor, collar
or other similar arrangement), guarantee fees, commitment fees and other
costs and fees of a similar nature (not including, to the extent otherwise
included, costs of issuance of debt, equity or warrants or amortisation of
debt discount) due in respect of Total Borrowings (including, for purposes
of calculating "Total Borrowings" and notwithstanding sub-clause (xiii) of
the definition of "Financial Indebtedness", 100% of the face or notional
amount of each interest rate or currency swap, collar or other similar
agreement or other hedging or derivative instrument as the Financial
Indebtedness attributable thereto) and payable by the ChiRex Group during
such period (including interest, the interest finance charge element of
hire-purchase, credit sale and conditional sale agreements and of lease
rentals under finance leases), less the sum of all
----
<PAGE>
interest (including amounts in the nature of interest in connection with any
interest rate and/or currency swap, cap, floor, collar or other similar
arrangement), guarantee fees, commitment fees and other costs and fees of a
similar nature payable to the ChiRex Group during such period;
"Tranche A Facility" or "Tranche A Term Facility" means the Tranche A Term
loan facility not in excess of the Tranche A Term Commitments granted to the
Borrower hereunder (as the same may be cancelled, reduced, varied or
terminated in accordance with the terms of this Agreement);
"Tranche A Term Commitment" means, in relation to the participation of any
Lender in the Tranche A Term Facility, the amount stated opposite its name
in Schedule 1 in relation to that Facility (or in the case of a Transferee,
the amount stated in the Schedule to the relevant Transfer Certificate as
being transferred to that Transferee), in each case as the same may be
transferred (in whole or in part), cancelled, reduced, varied or terminated
in accordance with the terms of this Agreement;
"Tranche B Facility" or "Tranche B Multicurrency Revolving Facility" means
the Tranche B multicurrency revolving loan facility not in excess of the
Tranche B Multicurrency Revolving Commitments granted to the Borrower
and./or the WCP Borrowers (as applicable) hereunder (as the same may be
cancelled, reduced, varied or terminated in accordance with the terms of
this Agreement);
"Tranche B Multicurrency Revolving Commitment" means, in relation to the
participation of any Lender in the Tranche B Multicurrency Revolving
Facility, the amount (or the Equivalent Amount thereof) stated opposite its
name in Schedule 1 in relation to the Facility (or in the case of a
Transferee, the amount or Equivalent Amount of such amount stated in the
Schedule to the relevant Transfer Certificate as being transferred to that
Transferee), in each case as the same may be transferred (in whole or in
part), cancelled, reduced, varied or terminated in accordance with the terms
of this Agreement;
"Transfer" has the meaning given to it in Clause 25.2;
"Transfer Certificate" means a certificate substantially in the form set out
in Schedule 7;
"Transferee" means a bank, financial institution or other person to which a
Lender seeks to transfer or has transferred all or part of its rights and
obligations hereunder;
"United Kingdom" or "UK" means the United Kingdom of Great Britain and
Northern Ireland;
"United States" or "US" means the United States of America;
"USD" means the lawful currency from time to time of the United States;
"US Obligor" means any Obligor organised under the laws of any jurisdiction
within the United States;
"VAT" means value added tax imposed in any relevant jurisdiction or any
other tax of a substantially similar nature substituted therefor from time
to time;
"WCP Advance" means an Advance under a WCP Facility;
"WCP Agreement" means an agreement between a WCP Provider and the Borrower
and/or the WCP Borrowers (as is appropriate) relating to a WCP Facility;
"WCP Borrowers" means ChiRex (Dudley) Limited and/or ChiRex (Annan) Limited;
<PAGE>
"WCP Commitment" means, in respect of any WCP Provider for a WCP Facility,
the amount designated by the WCP Provider pursuant to Clause 3.6.1, as such
WCP Commitment may be reduced pursuant to the terms of this Agreement;
"WCP Facility" means a revolving credit facility made available by a WCP
Provider to the Borrower and/or the WCP Borrowers (as appropriate) pursuant
to Clause 3.6 and "WCP Facilities" means all such facilities;
"WCP Provider" means any Lender acting through a branch or affiliate in
respect of a WCP Commitment of that Lender;
"Working Capital" means in relation to a person or group of persons under
any Approved Accounting Principles, trade and other debtors in respect of
operating items plus prepayments and inventory less trade and other
creditors in respect of operating items and less accrued expenses and
accrued costs, in each case determined in accordance with such Approved
Accounting Principles for such person or, on a consolidated basis, for such
persons (as the case may be); and
"Yen" means the lawful currency from time to time of Japan.
1.2 Construction of Other Terms
In this Agreement, unless the context otherwise requires, a reference to:
1.2.1 "affiliate" means in relation to any person (a) any person (other
than a subsidiary) which, directly or indirectly, is in control of,
is controlled by, or is under common control with such person, or
(b) any person who is a director or officer (i) of such person, (ii)
of any subsidiary of such person or (iii) of any person described in
clause (a) above. For purposes of this definition, "control" of a
person shall mean the power, direct or indirect, (i) to vote 25% or
more of the securities having ordinary voting power for the election
of directors of such person, whether by way of ownership of
securities, contract, proxy or otherwise, or (ii) to direct or cause
the direction of the management and policies of such person, whether
by ownership of securities, contract, proxy or otherwise;
1.2.2 "assets" means business, undertaking, property, assets (tangible or
intangible), revenues, rights and uncalled capital, wherever
situated, present, future and contingent (including uncalled share
capital), and every kind of interest in an asset, except that the
word "contingent" shall not be deemed included in this definition
where the definition is used in provisions relating to financial
accounting;
1.2.3 "indebtedness" includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent, except that the
word "contingent" shall not be deemed included in this definition
where the definition is used in provisions relating to financial
accounting;
1.2.4 a document or other writing being "in the agreed terms" means that
the relevant document or writing is in form and substance
satisfactory to the Agent and has been initialled by or on behalf of
the Agent and the Borrower (or their respective agents) on or before
the date hereof;
1.2.5 an event or matter having a "Material Adverse Effect" is to be
construed as a reference to an event or matter (a) which has or is
reasonably likely to have a material adverse effect on the
prospects, financial condition, business, assets or revenues of the
ChiRex Group taken as a
<PAGE>
whole such that the Obligors, taken as a whole, will be, or are
reasonably likely to be, unable to perform in a timely and diligent
manner all or any of their material obligations (including, without
limitation, payment obligations) under each of the Finance Documents
or (b) resulting in any material term of the Finance Documents not
being legal, valid and binding on and enforceable against any
Obligor party thereto, subject only to the Reservations;
1.2.6 a "month" means (save where used in the expression "calendar month")
a period starting on one day in a calendar month and ending on the
numerically corresponding day in the next calendar month (or in a
subsequent calendar month in the case of the plural "months"),
provided that if:
(a) any such period would otherwise end on a day which is not a
Business Day, it shall end on the next Business Day in the same
calendar month, or if none, on the preceding Business Day; and
(b) a period starts on the last Business Day in a calendar month or
if there is no numerically corresponding day in the month in
which that period ends, that period shall end on the last
Business Day in that later month;
(and references to "months" shall be construed accordingly);
1.2.7 "outstanding" under a Facility means the principal amount of all
Advances outstanding under such Facility;
1.2.8 a "person" includes any person, firm, company, corporation,
government, state or agency of a state or any undertaking (within
the meaning of Section 259(1) of the Companies Act 1985) or other
entity or association (whether or not having separate legal
personality), or any two or more of the foregoing;
1.2.9 "repayment" includes "prepayment" and its grammatical variations and
cognate expressions shall be construed accordingly;
1.2.10 "subsidiary" means, with respect to any person, any corporation or
other person more than fifty percent (50%) of whose securities or
other ownership interests having ordinary voting power for the
election of directors or similar representatives other than
securities having such power only by reason of the happening of a
contingency) are, as of the date of determination thereof, directly
or indirectly owned by such person or one or more of such person's
subsidiaries; and
1.2.11 "winding-up" of any person includes its dissolution and/or
termination and/or any equivalent or analogous proceedings under the
law of any jurisdiction in which the person concerned is
incorporated, registered, established or carries on business or to
which that person is subject.
1.3 Other Provisions
Except where a contrary intention appears, in this Agreement:
1.3.1 a reference to an Obligor or a Finance Party is, where relevant,
deemed to be a reference to or to include, as appropriate, their
respective successors or assigns;
1.3.2 references to Clauses and Schedules are references to, respectively,
clauses of and schedules to this Agreement;
1.3.3 a reference to any agreement, deed or other instrument (including
the Finance Documents) is to be construed as a reference to that
agreement, deed or other
<PAGE>
instrument as it may have been or hereafter be, from time to time,
amended, varied, supplemented, restated or novated but excluding for
this purpose any amendment, variation, supplement or modification
which is contrary to any provision of any of the Finance Documents;
1.3.4 a reference to a statute, law, rule, regulation or statutory
instrument is to be construed as a reference to that statute as the
same may have been, or may from time to time hereafter be, amended
or re-enacted;
1.3.5 a time of day is a reference to London, England time;
1.3.6 the index to and the headings in this Agreement are inserted for
convenience only and are to be ignored in construing this Agreement;
1.3.7 references to the singular shall include the plural and vice versa,
and reference by way of masculine pronoun or adjective shall include
references by way of the feminine, and vice versa; and
1.3.8 accounting terms are to be construed in accordance with the Approved
Accounting Principles.
2 THE FACILITIES
2.1 The Facilities
The Lenders grant to the Borrower, upon the terms and subject to the
conditions of this Agreement, the Facilities.
2.2 Purpose
2.2.1 Tranche A Term Facility: The proceeds of the Advance under the
Tranche A Term Facility shall be used by the Borrower to advance to
ChiRex (Annan) Limited the consideration for the purchase of the
Assets from Glaxo Group Limited pursuant to the Sale and Purchase
Agreement and for general corporate purposes.
2.2.2 Tranche B Multicurrency Revolving Facility: The proceeds of any
Advance under the Tranche B Multicurrency Revolving Facility
(including WCP Advances, except as otherwise restricted by Clause
3.6) shall be used by the Borrower to fund capital expenditure,
working capital and to advance to any member of the ChiRex Group for
general corporate purposes (which shall for the avoidance of doubt
include, acquisition finance) of such member of the ChiRex Group
and, in the case of a WCP Advance to the Borrower and the WCP
Borrowers (or one of them as the case may be), to fund working
capital.
2.2.3 Financial Assistance: No amount drawn down hereunder shall be
applied by an Obligor in a manner which may be prohibited by any
financial assistance or other similar laws in any relevant
jurisdiction.
2.2.4 Each of the WCP Borrowers hereby agree that they shall only ever be
entitled to Drawdown under the WCP Facility and that they shall make
no attempt to Drawdown under the Tranche A Facility or under the
Tranche B Facility to the extent that the latter does not form part
of the designated WCP Facility.
<PAGE>
3 PARTICIPATION OF LENDERS
3.1 Basis of Participation
Subject to the provisions of this Agreement, each Lender will participate
in each Advance in the proportion which (i) in the case of an Advance under
the Tranche A Term Facility, its Commitment in relation to such Facility as
at the Drawdown Date bears to the undrawn portion of the Total Commitments
of the Lenders in relation to such Facility as at such date, and (ii) in
the case of an Advance under the Tranche B Multicurrency Revolving
Facility, its Net Tranche B Multicurrency Revolving Commitment in relation
to such Facility as at the Drawdown Date bears to the undrawn Net Tranche B
Multicurrency Revolving Commitments of the Lenders in relation to such
Facility as at such date.
None of the Lenders is obliged to participate in an Advance to the extent
that to do so would result in the amount outstanding to it under the
relevant Facility exceeding its Commitment in respect of that Facility.
3.2 Lending Office
3.2.1 Each Lender will participate in each Advance as aforesaid through
its Lending Office.
3.2.2 If any Lender changes any Lending Office, that Lender agrees to
notify the Agent and the Borrower promptly of such change and, until
it does so, the Agent and the Borrower shall be entitled to assume
that no such change has taken place.
3.3 Rights and Obligations of Finance Parties
3.3.1 The rights and obligations of each of the Finance Parties under the
Finance Documents are several. Failure of any Finance Party to
observe and perform its obligations under any Finance Document shall
neither:
(a) result in any other Finance Party incurring any liability
whatsoever; nor
(b) relieve the Borrower, the WCP Borrowers or any other Finance
Party from their respective obligations under the Finance
Documents.
3.3.2 Notwithstanding any other provision of any Finance Document, the
interests of each Finance Party are several and the total amounts
outstanding at any time under the Finance Documents and due to each
Finance Party constitute separate and independent debts.
3.4 Enforcement of Rights
Each Finance Party has the right to protect and enforce its rights arising
out of the Finance Documents and it will not be necessary for any other
Finance Party to be joined as an additional party in any proceedings
brought for the purpose of protecting or enforcing such rights.
3.5 Syndication
The Borrower and the WCP Borrowers acknowledge that, without limitation of
the provisions of Clause 25, the Lenders may assign or transfer their
respective rights under this Agreement ("Syndication") and the Borrower and
the WCP Borrowers undertake to assist and co-operate with the Arranger in
Syndication in such manner and to such extent
<PAGE>
as the Arranger may from time to time each reasonably request including,
without limitation, by:
(a) providing and causing both the Borrowers advisers and the WCP
Borrower's Borrowers' to provide Arranger with all reasonable
information deemed necessary by the Arranger to complete syndication,
including but not limited to information and evaluations prepared by
the Borrower the WCP Borrowers and their respective advisers;
(b) assisting in the preparation of an Information Memorandum;
(c) making available officers of the Borrower the WCP Borrowers and ChiRex
Inc. from time to time and, as may reasonably be requested, causing
such officers to attend and make presentations regarding the business
and prospects of the Borrower the WCP Borrowers and ChiRex Inc., as
appropriate, at a meeting or meetings of Lenders or prospective
Lenders;
(d) arranging and conducting appropriate Borrower site visits for the
Arranger;
(e) selecting Interest Periods having a duration of not more than one
month in respect of all Advances made for the first six months
following the date of this Agreement or, if earlier, the date on which
the Agent notifies the Borrower and the WCP Borrowers that in the
Agent's determination Syndication is completed, which the Agent hereby
agrees to do promptly upon completion of Syndication; and
(f) refraining and causing its subsidiaries to refrain, from placing any
of their respective borrowings in the English, French, Spanish or
international financial or capital markets until the earlier of (i)
six months after the date of this Agreement, and (ii) completion of
such Syndication as notified to the Borrower and the WCP Borrowers by
the Agent.
3.6 The WCP Facilities
3.6.1
(a) If a WCP Provider so agrees, at the request of the Borrower and/or the
WCP Borrowers (as appropriate), a WCP Provider may designate by notice
to the Agent all or part of its Tranche B Multicurrency Revolving
Commitment as being utilised by its provision of a WCP Commitment in
the amount designated in respect of a WCP Facility for the Borrower
and/or the WCP Borrowers (as appropriate), up to a maximum aggregate
amount of GBP 3,000,000 or the Equivalent Amount thereof.
(b) Under no circumstance shall the aggregate of any WCP Provider's WCP
Commitments exceed such WCP Provider's Tranche B Multicurrency
Revolving Commitment.
(c) Subject to the terms of this Agreement,
(i) while and to the extent a WCP Facility is made available for
drawing by the Borrower and/or the WCP Borrowers (as
appropriate), the Tranche B Multicurrency Revolving Commitment of
the WCP Provider for that WCP Facility shall be reduced by the
amount of its WCP Commitment in respect of that WCP Facility, as
<PAGE>
set forth in the definition of Net Tranche B Multicurrency
Revolving Commitment; and
(ii) the Borrower and/or the WCP Borrowers (as appropriate) may cancel
any undrawn element of a WCP Facility at any time, and in any
such event or upon the expiration of the WCP commitment for that
WCP Facility, the Net Tranche B Multicurrency Revolving
Commitment of the WCP Provider for that WCP Facility shall
automatically be increased by the amount so cancelled or expired;
provided that such WCP Provider's Net Tranche B Multicurrency
--------
Revolving Commitment shall not be increased in excess of its
Tranche B Multicurrency Revolving Commitment.
3.6.2 Each WCP Facility shall be made available to the Borrower and/or the WCP
Borrowers (as appropriate) upon the terms of this Agreement, as follows:
(a) WCP Advances may be in the form of cash Advances, letters of credit
or revolving credit guarantees as agreed between the relevant WCP
Provider and the Borrower and/or the WCP Borrowers (as appropriate)
in the applicable WCP Agreement.
(b) WCP Advances under a WCP Facility shall, except as otherwise
provided, be made available to the Borrower and/or the WCP Borrowers
(as appropriate) on the same terms and conditions (including without
limitation the terms and conditions relating to interest, payments,
change in circumstances, defaults, etc.) under which Advances under
the Tranche B Multicurrency Revolving Facility are made available to
the Borrower under this Agreement, provided that for purposes of
Clauses 2, 3 and 5 to 11 (inclusive):
(i) the Lending Office(s) of a WCP Provider for purposes of its
WCP Facility may be different from the Lending Office(s) it
designates for other purposes under this Agreement;
(ii) except as set forth in Clause 3.6.1, all notices to be given
by or to the Agent in respect of a Tranche B Multicurrency
Revolving Advance shall, in respect of a WCP Advance, be
given by or to (as applicable) the WCP Provider for the
relevant WCP Facility (and references to the Agent and its
address in the relevant provisions of such clauses shall be
deemed references to the relevant WCP Provider and its
address for this purpose);
(iii) all determinations to be made by the Agent in respect of a
Tranche B Multicurrency Revolving Advance shall, in respect
of a WCP Advance, be made by the relevant WCP Provider (and
references to the Agent in the relevant provisions of such
clauses shall be deemed references to the relevant WCP
Provider for this purpose);
(iv) all payments which, in respect of a Tranche B Multicurrency
Revolving Advance are required to be made to the Agent
hereunder shall, in respect of a WCP Advance to the Borrower
and/or the WCP Borrowers (as appropriate), be made to the WCP
Provider in respect of those WCP Advances (and references to
the Agent and
<PAGE>
its address in the relevant provisions of such clauses shall
be deemed references to the relevant WCP Provider and its
address for this purpose); and
(v) each WCP Advance shall be in such minimum amount and integral
multiples as is agreed between the relevant WCP Provider and
the Borrower and/or the WCP Borrowers (as appropriate) in the
applicable WCP Agreement.
(c) The foregoing notwithstanding, the Borrower and/or the WCP Borrowers
(as appropriate) and WCP Provider in relation to a WCP Facility may
agree in a WCP Agreement between them to vary the interest rate
applicable to WCP Advances under the WCP Facility, the number of WCP
Advances that may be outstanding at any one time, or the form of or
requirement for any Drawdown Request or the notice required to make
a drawing of a WCP Advance under that WCP Facility, and payment and
amount of fees; provided that such WCP Agreement may not amend,
--------
supplement or vary this Agreement in any other respect without the
consent of the Agent acting at the direction of the Majority
Lenders, or, to the extent required by the other provisions of this
Agreement, the Lenders.
(d) In addition to the foregoing, Clause 8.3.4 shall not apply in
respect of any WCP Advance.
3.7 Certain Adjustments Relating to WCP Facilities
3.7.1 Following the occurrence and during the continuance of an Event of
Default:
(a) each WCP Provider shall promptly notify the Agent of any Recovery
made by it from the Borrower and/or the WCP Borrowers (as
appropriate) and/or any loss or expense suffered by it in connection
with the failure to repay in full, in each case by reference to the
WCP Facility or WCP Facilities to which it is a party; and
(b) in the event of a shortfall as regards any or all of the Obligors
under the Finance Documents, the Agent shall calculate the necessary
adjustments between that WCP Provider and the other Lenders so that,
as closely as is practicable, each Lender shares any loss suffered
by all the Lenders (including the WCP Provider) in the proportion
which that Lender's Commitments under the Facilities bears to the
Total Commitments under the Facilities.
(c) The Lenders (including each WCP Provider) agree to accept as
conclusive (in the absence of manifest error) the calculations of
the Agent under paragraph (b) above and to make such consequential
payments as between themselves as may be necessary to achieve the
proportionate loss sharing contemplated by that paragraph (b) and to
give effect to Clause 19.
3.7.2 Any consequential payment made by a Lender under Clause 3.7.1 above
is without prejudice to the obligations under this Agreement of the
Borrower and/or the WCP Borrowers (as appropriate) to pay all
amounts due and payable under this Agreement.
<PAGE>
4 CONDITIONS PRECEDENT
4.1 Initial conditions precedent
4.1.1 The obligations of the Lenders to make any Advance available to the
Borrowers under this Agreement are conditioned upon the Agent and
its legal advisers having received the following documents and
evidence in all respects (except where otherwise specified) in form
and substance satisfactory to the Agent and its legal advisers by
12.00 noon on the first Business Day prior to the Initial Drawdown
Date:
(a) a copy, certified as of the Initial Drawdown Date as true and
complete by a duly authorised representative of the relevant
Obligor, of
(i) the constitutional documents of each Obligor, including
evidence of due incorporation, together with
satisfactory search results of any public corporate
registers of that Obligor;
(ii) board (or other appropriate governing body) resolutions
of each Obligor (A) approving the transactions and the
matters contemplated by each of the Finance Documents,
and (B) authorising or granting a power of attorney to a
specified person or persons to (x) execute on its behalf
each of the Finance Documents to which it is a party,
and (y) give all notices, requests, instructions,
certificates and other documents for that Obligor in
connection with each of the Finance Documents to which
it is a party;
(iii) all other corporate, trust or other applicable
authorisations and actions of it required (including
without limitation any resolutions of shareholders or
approvals of beneficiaries) to enable it to enter into,
execute and perform those of the Finance Documents to
which it is, or is to be, a party;
(iv) specimen signatures of the signatories authorised by
each Obligor in the board (or other appropriate
governing body) resolutions described in Clause 4.1.1
(a)(ii) to sign Financing Documents to which it is or is
to be a party; and
(v) all other resolutions, powers, declarations, approvals,
consents and licenses (corporate, official or otherwise)
necessary or appropriate for the entry into and
performance by each Obligor of the Finance Documents to
which it is or is to be a party, and for the
enforceability and validity thereof;
(b) duly and unconditionally executed counterparts (except where
such documents are expressly governed (in whole or in part) by
Scottish law, in which case such documents shall not be
executed in counterparts) of:
(i) this Agreement; and
(ii) each of the Security Documents;
(c) legal opinions properly addressed to the Agent and Lenders
from:
(i) Cravath, Swaine & Moore, U.S. legal advisers to the
ChiRex Group;
<PAGE>
(ii) Dibb Lupton Alsop, English legal advisers to the ChiRex
Group; and
(iii) Linklaters & Alliance legal advisers to the Agent;
(d)
(i) in relation to the Annan Facility, evidence that:
(A) the consummation of the transactions contemplated
in the Sale and Purchase Agreement and entry into the
Supply Agreement will occur on terms and conditions
acceptable to the Agent substantially contemporaneously
with the Initial Drawdown; and
(B) an executed and completed letter of obligation from
Brodies WS, "Disposition" in favour of ChiRex (Annan)
Limited, a wire transfer in respect of (i) stamp duty
on the Disposition in the amount of GBP 240,000 and
(ii) registration dues on the Disposition and Standard
Security in the amount of GBP 7,522, and the prior
writs and land registration forms 1 and 4 in respect of
the Disposition, have each been delivered to Tods
Murray, Scottish counsel for the Agent; and
(ii) in relation to the Dudley Facility, evidence that the
Security Interest held by Midland Bank plc has been
paid and discharged in full substantially
contemporaneously with the Initial Drawdown;
(e) delivery of share certificates and share transfer forms and/or
evidence of the relevant recording on the share registers with respect
to the shares of ChiRex America Inc., the Borrower, ChiRex (Dudley)
Limited and ChiRex (Annan) Limited, and the Holdings Note, the Annan
Note and the Multiborrower Revolving Note, all as pledged pursuant to
the Security Documents, and/or any other evidence that the Security
Interests created hereby are appropriately perfected or will be
perfected upon registration under applicable law;
(f) Environmental Report;
(g) Due Diligence Report (Legal);
(h) Business Plan;
(i) Operating Budget;
(j) Accountants' Report and Industry Report;
(k) in each case, unless the relevant report itself is addressed to the
Agent and each of the Lenders, reliance letters addressed to the Agent
and each of the Lenders in form and substance satisfactory to the
Agent with respect to each of (i) the Environmental Report, to the
extent it relates to the Annan Facility, (ii) the Due Diligence Report
(Legal) as described in item (ii), (iii) and (iv) of the definition
thereof, (iii) the Accountants' Report, and (iv) the Industry Report;
(l) analyses and evidence of insurance complying with Clause 13.2.6
(Insurances) in scope, form and substance reasonably satisfactory to
the Agent;
<PAGE>
(m) audited consolidated financial statements for ChiRex Inc. for
the Accounting Reference Period ended 31 December, 1996 and
unaudited interim financial statement for the Accounting
Quarter ended 30 June 1997;
(n) each of the financial statements and other materials required
pursuant to Clause 13.3.4 (Financial Statements and Operating
Budget);
(o) copies of each of the agreements, deeds or other instruments,
in each case containing covenants, events of default and
matters relating to requirements for repayment in advance of
scheduled maturity in form and substance reasonably
satisfactory to the Agent, evidencing the Continuing
Indebtedness, certified as of the Initial Drawdown Date by a
duly authorised representative of the Borrower;
(p) evidence that the agents for service of process named in Clause
30.2 have accepted their respective appointments for the
purposes of this Agreement and the other Finance Documents; and
(q) evidence of the payment of the fees specified in Clause
11.1.1(b).
4.1.2 The Agent acknowledges that the conditions set out at 4.1.1 above
were fulfilled and that notice to that effect was given to the
Borrower and each of the Lenders shortly after the Initial Drawdown
Date.
4.2 Additional Conditions Precedent for All Advances
4.2.1 The obligations of the Lenders to make any Advance to the Borrower
and/or the WCP Borrowers (as appropriate) is subject to the
following further conditions precedent that on both the date of the
relevant Drawdown Request and the relevant Drawdown Date, unless
waived by the Agent acting in accordance with Clause 26:
(a) no Event of Default or Potential Event of Default has occurred
and continues unremedied or will occur as a result of the
making of the Advance; and
(b) the representations and warranties required to be made in
accordance with Clause 12 are true and accurate in all material
respects in each case by reference to the facts and
circumstances then subsisting and will remain true and accurate
immediately after the Advance is made.
4.2.2 Each Drawdown must fall on a Business Day on or before the expiry of
the Availability Period for the relevant Facility. Any amounts not
drawn on or before the expiry of the Availability Period for the
Facility shall be cancelled.
5 DRAWDOWN PROCEDURES AND LENDERS' PARTICIPATIONS
5.1 Drawdown of Advances
5.1.1 Whenever the Borrower and/or the WCP Borrowers (as appropriate)
wishes to borrow an Advance, the Borrower must deliver to the Agent
a duly completed Drawdown Request not later than 10.00 a.m. two
Business Days in the case of Drawdowns in GBP and three Business
Days in the case of Drawdowns in all other Available Currencies
prior to the proposed Drawdown Date (including with respect to the
Initial Drawdown Date).
<PAGE>
5.1.2 A Drawdown Request for an Advance delivered to the Agent must be in
the form set out in Schedule 3 and must specify each of the
following:
(a) the proposed Drawdown Date for the Advance (which must be a
Business Day falling within the Availability Period);
(b) the amount of the Advance which amount must be a minimum of GBP
100,000 or the Equivalent Amount thereof and an integral
multiple of GBP 100,000 or the Equivalent Amount thereof,
except to the extent of variations from such amounts for
rounding purposes approved by the Agent;
(c) the duration of the first Interest Period applicable to the
Advance, which must comply with Clause 8.3;
(d) the account to which the proceeds of the Advance are to be
paid; and
(e) the purpose for which the Advance is requested.
5.1.3 In no event may the amount specified in a Drawdown Request be such
that the Loan would thereby exceed the then Total Commitments. If,
however, the amount specified in a Drawdown Request exceeds the then
Total Commitments, and the amount of that excess may reasonably be
attributed to exchange rate fluctuations on or after the date a
Drawdown Request is given, the Agent in its sole discretion may
agree with the Borrower and/or the WCP Borrowers (as appropriate) to
adjustments, complying with the terms and conditions of this
Agreement, in the amount of any Loan requested pursuant to such
Drawdown Request so that the amounts requested pursuant to such
Drawdown Request comply with this Clause 5.1.3. The Agent shall
notify the Lenders promptly after any such adjustment is made, and
all expenses, losses, damages and liability of the Lenders arising
out of any such adjustments shall be for the account of the Borrower
and/or the WCP Borrowers (as appropriate) pursuant to Clause 27.1
(General Indemnity and Breakage Costs).
5.1.4 A Drawdown Request in relation to an Advance, once given, may not be
withdrawn or revoked.
5.1.5 Advances under the Tranche A Term Facility may only be requested for
the Initial Drawdown Date and the Second Drawdown Date.
5.1.6 Not more than fifteen separate Tranche B Multicurrency Revolving
Advances may be outstanding at any time.
5.1.7
(a) The Borrower and/or the WCP Borrowers (as appropriate) may not
request the drawdown of an Advance in a currency other than
euro, DEM, FF, LIT, GBP, CHF, Yen or USD (unless the Agent has
confirmed in writing to the Borrower and/or the WCP Borrowers
(as appropriate) that such other currency is freely available
to all the Lenders and is one in which dealings regularly occur
in the London interbank market).
(b) Notwithstanding Clause 5.1.7(a), if before 9.15 a.m. (London
time) on the proposed Drawdown Date for a utilisation to be
denominated in a currency other than euro, DEM, FF, LIT, GBP,
CHF, Yen or USD:
<PAGE>
(i) the Agent receives notice from a Lender that it is
impracticable for the Lender to fund its participation for
the relevant Interest Period in such currency in the ordinary
course of its business in the London interbank market; or
(ii) the drawing of the proposed Advance in such currency could,
in the opinion of the Agent, be reasonably likely to
contravene any applicable law or regulation;
then:
(A) The Agent shall promptly and in any event before 10.00 a.m.
on that Drawdown Date notify the Borrower and/or the WCP
Borrowers (as appropriate);
(B) if the Agent receives notice from the Borrower and/or the WCP
Borrowers (as appropriate) by 11.00 a.m. on the relevant
Drawdown Date, the drawdown shall not be made;
(C) if the Agent does not receive any notice under sub-paragraph
(B) above, the drawdown will be denominated instead in GBP
and there shall be substituted in the definition of "LIBOR'
in Clause 1.1 the time "1.00 p.m." for the time "11.00 a.m.";
and
(D) the Borrower and/or the WCP Borrowers (as appropriate) shall
forthwith on demand indemnify each Lender against any
liability which that Lender incurs as a consequence of the
operation of this Clause 5.1.7(b).
5.2 Lenders' Participations
5.2.1 Subject to the provisions of this Agreement, each Lender will make
available to the Agent its Participation Proportion of the relevant
Advance on the relevant Drawdown Date in accordance with Clause
9. 1.1 (Payments).
5.2.2 If, prior to an Advance being made, a Lender's Commitment has been or
will be wholly cancelled or terminated pursuant to this Agreement,
such Lender will not participate in such Advance.
5.3 Notice to the Lenders of a Proposed Drawdown
Whenever the Agent receives a Drawdown Request which complies with the
requirements of Clause 5.1, the Agent will promptly give notice to each of
the Lenders of (a) the details of the requested Advance, and (b) the amount
of such Lender's participation (or deemed participation) in the relevant
Advance.
6 REPAYMENT OF ADVANCES
6.1 Repayment of Tranche A Term Loans
6.1.1 On each Repayment Date, the Borrower shall repay or cause the
repayment (as applicable) of the aggregate amount of the Tranche A
Term Loan set forth opposite such date in Schedule 2.
<PAGE>
6.1.2 If any Repayment Date is not a Business Day it will be adjusted to
fall on the next succeeding Business Day unless the result of such
adjustment would be to carry that Repayment Date into another
calendar month, in which event such Repayment Date shall be the last
preceding Business Day.
6.1.3 Any amount of the Tranche A Term Loan repaid under this Agreement may
not be redrawn subject to the ability of the Borrower to drawdown on
the Second Drawdown Date and after the Second Drawdown Date the
relevant Tranche A Term Commitment shall be reduced by an amount
equal to the amount of such Loan so repaid.
6.2 Repayment of Tranche B Multicurrency Revolving Advances
6.2.1 Each Advance under the Tranche B Multicurrency Revolving Facility
shall be borrowed for a period equal to the Interest Period selected
in relation to such Advance. The Borrower and/or the WCP Borrowers
(as appropriate) shall accordingly repay each such Advance on the
last day of such Interest Period in the currency in which such
Advance was made to the Borrower and/or the WCP Borrowers (as
appropriate).
6.2.2 The Borrower shall ensure that the aggregate principal amount of all
Tranche B Multicurrency Revolving Advances from time to time
outstanding does not exceed the aggregate amount of the Tranche B
Multicurrency Revolving Facility from time to time (including
Equivalent Amounts in respect of Advances not denominated in GBP).
6.2.3 Subject to the provisions of this Agreement, Tranche B Multicurrency
Revolving Advances repaid in accordance with Clause 6.2.1 above shall
be capable of being redrawn by the Borrower and/or the WCP Borrowers
(as appropriate).
6.2.4 Subject to the terms of this Agreement on December 31, 2004 the
Borrower shall repay all remaining outstanding Tranche B
Multicurrency Revolving Advances.
6.2.5 Subject to the terms of this Agreement, if any Tranche B
Multicurrency Revolving Advance (the "New Revolving Advance") is to
be made to the Borrower and/or the WCP Borrowers (as appropriate) on
the day on which another Tranche B Multicurrency Revolving Advance
denominated in the same currency (the "Maturing Revolving Advance")
is due to be repaid (the "Revolving Maturity Date") by the Borrower
and/or the WCP Borrowers (as appropriate) then (subject to there
being no Event of Default or Potential Event of Default), as between
each Lender and the Borrower and/or the WCP Borrowers (as
appropriate), the amount to be repaid by the Borrower and/or the WCP
Borrowers (as appropriate) by way of Maturing Revolving Advance shall
be set off against the amount of the New Revolving Advance to be
advanced by each Lender (in respect of its participation) and the
party to whom the smaller amount is to be paid shall advance or repay
(as appropriate) to the party to whom the larger amount is to be paid
the difference between the two amounts on the Revolving Maturity
Date.
<PAGE>
7 PREPAYMENT AND CANCELLATION
7.1 Voluntary Prepayments
7.1.1 Subject to the order of application set forth in Clause 7.3.1. the
Borrower and/or the WCP Borrowers (as appropriate) may voluntarily
prepay the whole or part of any Advance on the last day of an
Interest Period (or on any other Business Day subject to payment of
any breakage costs thereby incurred by any Lender in accordance with
Clause 27.1) relating thereto provided that the Agent has received
from the Borrower and/or the WCP Borrowers (as appropriate) not less
than ten Business Days' notice of the proposed date and the amount of
the prepayment.
7.1.2 If the Loans are to be prepaid voluntarily in part, the aggregate
amount of the partial prepayment must be a minimum of GBP 100,000 or
the Equivalent Amount thereof and an integral multiple of GBP 100,000
or the Equivalent Amount thereof.
7.1.3 A prepayment made in accordance with the terms of this Clause 7 may
be made without premium or penalty.
7.2 Mandatory Prepayments
7.2.1 Asset Disposals
If the Borrower and/or the WCP Borrowers (as appropriate) disposes of
an asset (other than:
(a) a disposal permitted by Clauses 13.2.8(a), (b) or (c), or
(b) disposals permitted by Clauses 13.2.8(d) and (e) up to an aggregate
amount of Net Cash Proceeds for all such disposals described in this
sub-clause (b) of GBP (Pounds)2,500,000 (or its equivalent) following
the date of this Agreement),
the Net Cash Proceeds of such disposal shall be applied by the Borrower
and/or the WCP Borrowers (as appropriate) as promptly as practicable in
prepayment of the outstandings under this Agreement in accordance with
Clause 7.3.1 below.
7.2.2 Cashflow
Before the Achievement Date only, the Borrower will once per annum make a
prepayment to be applied against the outstandings under this Agreement in
accordance with Clause 7.3.1 below within 120 days of the expiry of each
Accounting Reference Period (beginning with the Accounting Reference
Period ended 31 December 1998) in the amount of 50% of the aggregate of
the unconsolidated Cashfiow, without allowing for any duplication, of
each Obligor (determined in accordance with the respective applicable
Approved Accounting Principles) for the Accounting Reference Period then
ended, if a positive number.
7.2.3 Change of Control
Immediately upon a Change of Control:
(a) the Borrower and/or the WCP Borrowers (as appropriate) will prepay
all Advances, accrued interest thereon and all other sums payable
under this Agreement and the other Finance Documents; and
<PAGE>
(b) the unborrowed amount of all Facilities will be cancelled and the
Commitment of each Lender in respect of each Facility shall be
reduced to zero.
7.3 Prepayments; Order of Application
7.3.1 Partial prepayments made pursuant to Clauses 7.1 and 7.2 will be
applied by the Borrower first, to the permanent prepayment of the
Tranche A Term Loan (to be applied pro-rata against the scheduled
remaining repayments thereof); and second, to the permanent
prepayment of the Tranche B Multicurrency Revolving Advances.
7.3.2 Amounts applied in permanent repayment of the Tranche B
Multicurrency Revolving Advances may not be redrawn and, upon any
such prepayment, each Lender's Tranche B Multicurrency Revolving
Commitment shall be reduced proportionately.
7.4 Prepayments during Interest Periods
Prepayments pursuant to Clauses 7.1, 7.2 and 7.3 applied to the
obligations of the Borrower and/or the WCP Borrowers (as appropriate)
hereunder shall be subject to payment of any breakage costs incurred by
any Finance Party, calculated in accordance with Clause 27.1 (General
Indemnity and Breakage Costs). If requested by the Borrower and/or the
WCP Borrowers (as appropriate), the Agent shall deposit the proceeds of
prepayment in an interest-bearing account established on terms (including
terms as to security) in all respects satisfactory to the Agent until the
end of the Interest Period then current and apply such funds (together
with any interest accrued thereon) toward the required prepayment on the
last day of such Interest Period.
7.5 Cancellation
7.5.1 The Borrower and/or the WCP Borrowers (as appropriate)may cancel
the whole or any part (but if in part, in a minimum amount of GBP
100,000 or the Equivalent Amount thereof and in integral multiples
of GBP 100,000 or the Equivalent Amount thereof) of the Tranche B
Multicurrency Revolving Facility undrawn when the notice of
cancellation takes effect if it gives two Business Day written
notice of cancellation to the Agent. Cancellation made in
accordance with the terms of this Clause 7 may be made without
penalty.
7.5.2 Upon each cancellation of the Tranche B Multicurrency Revolving
Facility, the Borrower and/or the WCP Borrowers (as appropriate)
shall be required to make such repayments thereof as are necessary
so that the Tranche B Multicurrency Revolving Advances outstanding
at the time of the cancellation do not exceed the total Tranche B
Multicurrency Revolving Commitments after giving effect to such
cancellation. Upon any such cancellation taking effect the maximum
amount of the Tranche B Multicurrency Revolving Facility shall be
accordingly reduced and the amount of each Lender's Tranche B
Multicurrency Revolving Commitment (if any) shall be reduced
proportionately.
7.6 General
7.6.1 No prepayment may be made except at the times and in the manner
expressly provided by this Agreement.
<PAGE>
7.6.2 No amount prepaid in respect of the Tranche A Term Facility may be
subsequently re-drawn.
7.6.3 All prepayments shall be made together with interest accrued
thereon up to the date of prepayment and any other amounts then due
and payable under any Finance Document.
7.6.4 The Agent shall notify the Lenders promptly upon receipt by it of a
notice of prepayment.
7.6.5 All notices of prepayment and all notices of cancellation given by
the Borrower are irrevocable.
8 INTEREST
8.1 Interest Rate
8.1.1 Each Advance will bear interest during each Interest Period
applicable to that Advance at the rate per annum determined by the
Agent to be the sum of (a) the applicable Margin, (b) LIBOR for
such Interest Period, and (c) in the case of Advances denominated
in GBP or another currency, subject to Mandatory Costs.
8.1.2 Interest will be calculated on the basis of actual days elapsed and
a 360-day year (other than interest in respect of Advances
denominated in GBP, which will be calculated on the basis of a year
of 365 days), and will accrue from day to day from, and including,
the first day of each Interest Period.
8.1.3 If requested to do so, each Reference Lender shall use its
reasonable endeavours to supply a quotation to the Agent for the
purposes of determining LIBOR for a particular Interest Period. If
any Reference Lender does not do so, the relevant arithmetic mean
shall be determined on the basis of the quotations supplied by the
remaining Reference Lenders. At such time as there are three
Reference Lenders, if no, or only one, Reference Lender supplies a
quotation, Clause 8.5 shall apply; provided that if there are only
two Reference Lenders and one supplies a quotation, Clause 8.5
shall not apply in such case.
8.2 Payment of Interest
The Borrower or the WCP Borrowers (as appropriate) will pay interest
accrued on each Advance to the Agent for the account of the Lenders in
arrears on the last day of each Interest Period applicable to that
Advance, provided that where such Interest Period is of a duration of
longer than three months, accrued interest in respect of the relevant
Advance shall be paid every three months during such Interest Period and
on the last day of such Interest Period.
8.3 Selection of Interest Periods
8.3.1 Subject to Clause 3.5.(e), the duration of each Interest Period
will be a period of one, two, three or six months (or such other
period as may be agreed between the Borrower or the WCP Borrowers
(as appropriate) and all of the Lenders) as notified by the
Borrower or the WCP Borrowers (as appropriate) to the Agent not
later than 10.00 a.m. two Business Days isn the case of Advances in
GBP and three Business Days in the case of Advances in all other
Available Currencies prior to the commencement of such Interest
Period, provided that:
<PAGE>
(a) the first Interest Period in relation to an Advance will
commence on the Drawdown Date relating thereto and each
subsequent Interest Period relating to such Advance (or part
thereof) will commence on the expiry of the preceding Interest
Period relating thereto;
(b) if the Borrower or the WCP Borrower (as appropriate) fails to
select an Interest Period, then, subject as provided in this
Clause 8.3, the Borrower or the WCP Borrower (as appropriate)
will be deemed to have selected an Interest Period of three
months; and
(c) if all or part of a Tranche A Term Advance is required to be
repaid on a Repayment Date to ensure that the Borrower or the
WCP Borrower (as appropriate) complies with its obligations
under Clause 6.1.1 and if an Interest Period relative to that
Advance would, but for the operation of this sub-clause (c),
extend beyond such Repayment Date, then if necessary such
Advance shall be split into two separate Advances (such
additional Advance not to be counted for the purposes of
sub-clause (d) below), one of which shall be in an amount equal
to the amount required to be repaid and having an Interest
Period commencing upon the expiry of the immediately preceding
Interest Period and expiring on the relevant Repayment Date,
the other Advance being for the balance of the amount of the
original Advance; and (d) the Borrower or the WCP Borrowers (as
appropriate) will not be entitled to select more than fifteen
concurrent Interest Periods in relation to the Advances.
8.3.2 If any Interest Period would, but for this Clause 8.3.2, end on a
day which is not a Business Day, that Interest Period shall be
extended to the next succeeding Business Day unless the result of
such extension would be to carry such Interest Period into another
calendar month, in which event such Interest Period shall end on
the last preceding Business Day.
8.3.3 No Interest Period for any Advance shall expire after the Final
Repayment Date.
8.3.4 The Agent will notify:
(a) the Lenders of each Interest Period applicable to each Advance
promptly upon the same being determined; and
(b) the Lenders and the Borrower or the WCP Borrowers (as
appropriate) of the rate of interest applicable to such
Interest Period as soon as it is determined under this
Agreement.
8.4 Interest on Unpaid Sums
8.4.1 If the Borrower or the WCP Borrowers (as appropriate) fails to pay
any sum due from it under this Agreement or any other Finance
Document on its due date (an "unpaid sum"), the Borrower or the WCP
Borrowers (as appropriate) will pay default interest on such unpaid
sum from its due date to the date of actual payment (after as well
as before judgement or decree) at a rate (the "Default Rate")
determined by the Agent to be 2 per cent per annum above:
(a) if the unpaid sum is principal which has fallen due prior to
the expiry of the relevant Interest Period, the rate applicable
to such principal immediately
<PAGE>
prior to the date it so fell due (but only for the period from
such due date to the end of the relevant Interest Period); or
(b) in any other case (including principal falling within (a) above
once the relevant Interest Period has expired), the rate which
would be payable if the unpaid sum was an Advance made for a
period equal to the period of non- payment divided into
successive Interest Periods of such duration as shall be
selected by the Agent (a "Default Interest Period").
8.4.2 Default interest will be payable by the Borrower or the WCP
Borrowers (as appropriate) on demand by the Agent and will be
compounded at the end of each Default Interest Period.
8.4.3 The Agent will promptly notify the Borrower and the Lenders of each
determination of the Default Rate and each selection of a Default
Interest Period.
8.5 Market Disruption
8.5.1 If prior to the commencement of an Interest Period (an "Affected
Interest Period"):
(a) the Agent, after consultation with the Lenders, determines
that, by reason of circumstances affecting the London interbank
market or the financial markets generally, adequate and fair
means do not or will not exist for ascertaining the interest
rate applicable to the Affected Interest Period; or
(b) Lenders whose Relevant Amounts exceed 51% of Relevant Amounts
of all Lenders notify the Agent that LIBOR would not accurately
reflect the cost to such Lenders of making or maintaining their
respective Participations in the relevant Advance during the
Affected Interest Period; or
(c) the appropriate page of the Telerate Display Screen does not
list any appropriate quotations and (i) at such time as there
are three Reference Lenders none or only one of the Reference
Lenders has notified a rate to the Agent for the purposes of
determining LIBOR for the Affected Interest Period, or (ii) at
such time as there are two Reference Lenders none of the
Reference Lenders has notified a rate to the Agent for the
purposes of determining LIBOR for the Affected Interest Period;
the Agent shall give notice of such event to the Borrower or the
WCP Borrowers (as appropriate) and the Lenders (a "Suspension
Notice"). If such Suspension Notice shall be given prior to the
receipt by the Agent of a Drawdown Request, the Borrower and/or the
WCP Borrowers' (as appropriate) right to borrow and issue a
Drawdown Request in respect of Advances hereunder shall be
suspended during the continuance of such circumstances.
8.5.2 If at the time of the Suspension Notice a Drawdown Request has been
given pursuant to Clause 5.1.1, such Drawdown Request shall, unless
the Borrower or the WCP Borrowers (as appropriate) and the Agent
(after consultation with the Lenders) otherwise agree, be deemed to
have been cancelled and the Advance concerned shall not be made.
8.5.3 Subject to Clause 8.5.4, during the 21 days following the giving of
the Suspension Notice, the Agent, the Borrower or the WCP Borrowers
(as appropriate) and the Lenders shall negotiate in good faith in
order to arrive at a mutually acceptable substitute basis for
calculating the alternative interest rate or (as the case may be)
<PAGE>
an alternative basis for the relevant Lender to fund or continue to
fund the affected Advance during the Affected Interest Period on
the basis that the net return to the Lenders or the relevant Lender
shall be no less than had the event described in Clause 8.5.1 not
occurred. If within such 21 day period such parties shall agree in
writing upon a substitute basis, such substitute basis shall apply
in accordance with its terms. If such parties fail to agree on a
substitute basis within such 21 day period, the Agent (after
consultation with the Lenders or, as the case may be, the relevant
Lender) shall certify to the Borrower or the WCP Borrowers (as
appropriate) (such certificate to be conclusive in the absence of
manifest error, and binding on all concerned) the basis upon which
interest in relation to the Affected Interest Period is to be fixed
or (as the case may be) the basis upon which the relevant Lender
will fund or continue to fund its participation in the Advance
during the Affected Interest Period. Such basis (in relation to the
said rate of interest) may include the substitution of the cost of
funds to such Lenders from other sources and for different funding
periods, plus the Margin (plus, in the case of Advances in GBP or
another currency subject to Mandatory Costs), and may be
retroactive to the beginning of the Affected Interest Period. Such
interest shall be calculated at the rate specified in the Agent's
certificate.
8.5.4 Notwithstanding the foregoing, the Borrower or the WCP Borrowers
(as appropriate) may, at any time after the Agent shall have set a
substitute funding procedure or interest rate or rates pursuant to
Clause 8.5.3 and for so long as such funding procedure or interest
rate or rates continue(s) to be applicable, give to the Agent not
less than five Business Days' notice (which shall be irrevocable)
of its intention to prepay the whole (but not part only) of the
Advance affected, in which event the Borrower or the WCP Borrowers
(as appropriate) shall pay:
(a) on the date specified in such notice to the Agent for the
account of the Lenders the principal amount of the Advance
affected together with interest accrued thereon at the
applicable rate to the date of actual prepayment; and
(b) to each Lender on demand such amount (if any) as such Lender
may certify should be paid to it pursuant to Clause 27.1
(General Indemnity and Breakage Costs).
9 PAYMENTS
9.1 Place and Time
9.1.1 All payments to be made by any Obligor or any Lender under the
Finance Documents are to be made in full, without any deduction or
withholding for or on account of any Taxes, to the Agent not later
than 11.00 a.m. on the due date therefor to such account as the
Agent specifies by written notice for this purpose, in immediately
available and freely transferable Same Day Funds in the relevant
currency.
9.1.2 Subject to Clause 9.1.3, each payment received by the Agent
pursuant to Clause 9.1.1 for the account of another person will be
made available by the Agent to that person for value on the same
day by transfer to such bank account as that person has previously
notified to the Agent by not less than three Business Days' prior
notice.
<PAGE>
9.1.3 Where a sum is to be paid under the Finance Documents for the
account of another person, the Agent will not be obliged to make
any such sum available to that person until it has been able to
establish to its satisfaction that it has actually received such
sum, but shall be free to do so and if it does so and it proves to
be the case that it has not actually received the sum it paid out,
then such person will on request ensure that the amount so made
available is refunded to the Agent and such person shall be liable
(1) to pay to the Agent interest on the amount in question at the
rate determined by the Agent to be equal to the cost to the Agent
of funding such amount for the period from payment out by the Agent
until refund to the Agent thereof and (2) to indemnify the Agent
against any additional cost or loss it may have suffered or
incurred by reason of it having paid out such sum prior to it
having received the same.
9.2 No Deductions
All payments made by any Obligor under the Finance Documents (whether of
principal, interest, acceptance commission, fees or otherwise) shall be
paid in full without set-off or counterclaim and not subject to any
condition.
9.3 Taxes
9.3.1 All payments by the Obligors under the Finance Documents are to be
made in full without any deduction or withholding for or on account
of any Taxes unless the deduction or withholding is required by law
in which event the relevant Obligor Borrower will:
(a) ensure that the deduction or withholding does not exceed the
minimum amount legally required;
(b) pay to the relevant Taxation or other authorities within the
period for payment permitted by the applicable law such amount
as is required to be paid in consequence of the deduction
(including, but without prejudice to the generality of the
foregoing, the full amount of any deduction from any additional
amount paid pursuant to Clause 9.3.2); and
(c) deliver to the relevant Finance Parties within 30 days from the
date on which the payment of such withholding tax or deduction
was due, the documents evidencing the payment of such
aforementioned withholding tax or deductions; and
(d) indemnify each of the Finance Parties against any losses or
costs incurred by it by reason of (i) any failure on the part
of such Obligor to make any deduction or withholding or (ii)
any such additional amount not being paid on the due date for
payment thereof.
9.3.2 Subject to Clause 9.3.3, if any deduction or withholding for or on
account of Taxes or any other deduction from any payments made or
to be made by the relevant Obligor, or by the Agent to any other
Finance Party, under any of the Finance Documents is required by
law, then the Obligor shall pay to the Finance Party concerned an
additional amount being the amount required to procure that the
aggregate net amount received by that Finance Party will equal the
full amount which would have been received by it had no such
deduction or withholding or other deduction been made.
<PAGE>
9.3.3 No additional amount will be payable to a Lender under Clause 9.3.2
in respect of Taxes to the extent that such additional amount
becomes payable as a result only of (i) a Lender not having been a
Qualifying Lender at the time it became a Lender, or (ii) a Lender
having ceased to be a Qualifying Lender by any action on its part,
or (iii) a change in the Lending Office of the relevant Lender,
unless (A) such change is requested by the Borrower and/or the WCP
Borrowers (as appropriate), or (B) under the relevant Tax laws,
regulations, treaties or rules in effect at the time of the change
in Lending Office, such additional, amount would not have been
payable.
9.3.4 If the Borrower and/or the WCP Borrowers (as appropriate) is
obliged to pay an amount under Clause 9.3.1, the Borrower and/or
the WCP Borrowers (as appropriate) may prepay in whole (but not in
part) and without penalty (subject to Clause 27) all Advances made
available to it by the affected Lender, upon the Borrower giving
not less than two Business Days' prior written notice to the Agent
and the affected Lender, provided that such notice is given within
30 days of the Borrower and/or the WCP Borrowers (as appropriate)
becoming aware that it would be obliged to pay such amount. The
liability of such Lender to make any further Advances or other
extensions of credit available to the Borrower and/or the WCP
Borrowers (as appropriate) (and such lender's Commitments) shall
automatically be cancelled on the giving of such notice.
9.3.5 If any of the Lenders determines, in its absolute discretion, that
it has received, realised, utilised and retained a Tax benefit by
reason of any deduction or withholding in respect of which an
Obligor has made an increased payment or paid any indemnifying
amount or compensating sum under this Clause 9.3, such Lender
shall, provided that the Agent and each Lender has received all
amounts which are then due and payable by an Obligor under any of
the Finance Documents, promptly pay to the Borrower and/or the WCP
Borrowers (as appropriate) (to the extent that such Lender can do
so without prejudicing the amount of such benefit or repayment and
the right of such Lender to obtain any other benefit, relief or
allowance which may be available to it) such amount, if any, as
such Lender, in its absolute discretion shall determine will leave
such Lender in no worse position than it would have been in if the
deduction or withholding had not been required, provided that:
(a) each Lender shall have an absolute discretion as to the time at
which and the order and manner in which it realises or utilises
any Tax benefit and shall not be obliged to arrange its
business or its Tax affairs in any particular way in order to
be eligible for any credit or refund or similar benefit;
(b) no Lender shall be obliged to disclose any information
regarding its business, Tax affairs or Tax computations;
(c) if a Lender has made a payment to the Borrower and/or the WCP
Borrowers (as appropriate) pursuant to this Clause 9.3.5 on
account of any Tax benefit and it subsequently transpires that
such Lender did not receive that Tax benefit, or received a
lesser Tax benefit, the Borrower and/or the WCP Borrowers (as
appropriate) shall, on demand, pay to such Lender such sum as
the relevant Lender may determine as being necessary to
<PAGE>
restore its after- Tax position to that which it would have
been had no adjustment under this Clause 9.3.5 been necessary;
and
(d) no Lender shall be obliged to make any payment under this
Clause 9.3.5 if, by doing so, it would contravene the terms of
any applicable law or any notice, direction or requirement of
any governmental or regulatory authority (whether or not having
the force of law).
9.4 Payments on Business Days
Subject to Clauses 6.2 and 8.3.2, if any sum would otherwise become due
for payment pursuant to any of the Finance Documents on a day which is
not a Business Day, such sum shall become due on the next succeeding
Business Day unless that day falls in the next calendar month, in which
case the sum shall become due on the preceding Business Day and all sums
payable under any of the Finance Documents calculated by reference to any
period of time shall be recalculated on the basis of such extension in
time (or reduction thereof).
9.5 Accounts
9.5.1 Each Lender shall maintain an account or accounts recording the
amounts from time to time lent by, owing to and paid to such Lender
pursuant to the Finance Documents, which shall, as between such
Lender and the relevant Obligor, be prima facie evidence of such
amounts.
9.5.2 The Agent will maintain a memorandum account showing the principal
amount of all Advances for the time being outstanding hereunder and
all payments with respect thereto made by the Obligors from time to
time pursuant to this Agreement.
9.6 Currency
9.6.1 A repayment or prepayment of an Advance or any part of an Advance
is payable in the currency in which the Advance was denominated on
the date it was made.
9.6.2 Interest and fees in respect of an Advance are payable in the
currency in which the relevant amount of the relevant Advance in
respect of which it is payable is denominated. Fees in respect of
Commitments hereunder shall be payable in GBP.
9.6.3 Amounts payable in respect of costs, expenses and Taxes and the
like are payable in the currency in which they are incurred. 9.6.4
Any other amount payable under this Agreement is, except as
otherwise provided in this Agreement, payable in GBP.
10 CHANGE IN CIRCUMSTANCES
10.1 Increased Costs
10.1.1 If the effect of any implementation of, change in or introduction
or making after the date of this Agreement of, any law,
regulation, treaty or official directive or official request or
guidance applicable to any Lender or any affiliate, including
without limitation, a holding company, (an "Affected Lender")
(whether or not having the force of law) or any change in the
interpretation or application thereof or compliance by such
Affected Lender, with the same (including without limitation those
relating to Taxation, reserve asset, special deposit, cash ratio,
liquidity or
<PAGE>
capital adequacy requirements or any other form of banking or
monetary controls) is to:
(a) impose an additional cost on the Affected Lender as a result
of it having entered into any of the Finance Documents or
making or maintaining its participation in any Advance or of
it performing its obligations under the Finance Documents; or
(b) reduce any amount received or receivable by the Affected
Lender under the Finance Documents or reduce the effective
return on its capital or any class thereof, or
(c) result in the Affected Lender making any payment or foregoing
any interest or other return on or calculated by reference to
any amount received or receivable by the Affected Lender from
any other party under any of the Finance Documents,
each such increased cost, reduction, payment, foregone interest or
other return being hereafter referred to in this Clause 10.1 as an
"increased cost"), then:
(1) the Affected Lender will notify the Borrower and/or the WCP
Borrowers (as appropriate) and the Agent of such event
promptly upon its becoming aware of the same; and
(2) upon demand from time to time by the Affected Lender, the
Borrower will pay to the Affected Lender such amount as the
Affected Lender shall determine to be necessary to compensate
the Affected Lender on an after tax basis for such increased
cost (or the portion of such increased cost as is in the
reasonable opinion of the Affected Lender attributable to its
entering into the Finance Documents or of making or
maintaining its participation in any Advance or of maintaining
its Commitment).
10.1.2 The certificate of an Affected Lender specifying the amount of
compensation payable under Clause 10.1.1 and containing reasonable
detail as to how such amount was calculated will, in the absence
of manifest error, be conclusive.
10.1.3 The Borrower and/or the WCP Borrowers (as appropriate) will not be
obliged to compensate any Affected Lender pursuant to Clause
10.1.1 in respect of any increased cost:
(a) attributable to a change in the rate of Tax on the overall net
income of the Affected Lender; or
(b) compensated for by the operation of Clause 9.3 (Taxes); or
(c) incurred in consequence of the implementation in whole or in
part of the International Convergence of Capital Measurements
and Capital Standards dated July 1988 published by the Basle
Committee on Banking Regulations and Supervisory Practices
(the "Guidance"), except to the extent that a higher level of
capital adequacy is imposed than that stipulated in the
Guidance as at the date of this Agreement;
(d) compensated for by the payment of Mandatory Costs; or
<PAGE>
(e) until the calculation of such cost set forth in the
certificate referred to in Clause 10.1.2 has been received by
the Borrower and/or the WCP Borrowers (as appropriate).
10.2 Illegality
If the effect of any implementation of, change in, or introduction or
making after the date of this Agreement of, any law, regulation, treaty
or official directive or official request or guidance applicable to any
Lender or any affiliate, including without limitation, a holding company,
(a "Restricted Lender") (whether or not having the force of law) in any
jurisdiction applicable to such Restricted Lender is to prohibit such
Restricted Lender, or make it illegal for such Restricted Lender, to make
available or to maintain its participation in any Advance or maintain its
Commitment, then such Restricted Lender will give written notice to that
effect to the Agent and the Borrower and the WCP Borrowers (as
appropriate) , specifying in reasonable detail the obligations the
performance of which is prohibited and the relevant law, regulation,
treaty, directive, request or guideline, whereupon:
(a) to the extent of such prohibition or illegality, the Borrower
and the WCP Borrowers (as appropriate) shall forthwith prepay
the Restricted Lender's participation in all Advances then
outstanding together with all interest accrued thereon and all
other amounts due to the Restricted Lender under this
Agreement (including pursuant to Clause 26 (Indemnities));
and/or
(b) to the extent of such prohibition or illegality, the
Restricted Lender's undrawn Commitment (if any) shall be
cancelled forthwith.
10.3 Mitigation
If circumstances arise in relation to a particular Lender which would, or
may, result in:
(a) an obligation to pay an additional amount under Clause 9.3.2
(Gross-Up); or
(b) a demand for compensation pursuant to Clause 10.1 (Increased
Costs); or
(c) an obligation to repay or the cancellation of an undrawn
Commitment under Clause 10.2 (Illegality);
then, without in any way limiting, reducing or otherwise qualifying the
obligations of the Borrower and/or the WCP Borrowers (as appropriate)
under any of the Clauses referred to above, such Lender will promptly
after becoming aware thereof notify the Agent and the Borrower and/or the
WCP Borrowers (as appropriate) thereof and, except as set out in the
provisos in paragraphs (y) and (z) below, in consultation with the Agent
and the Borrower and/or the WCP Borrowers (as appropriate), take such
steps as may be reasonably open to it to mitigate the effects of such
circumstances including (but without limitation):
(i) changing its Lending Office for the purposes of this
Agreement; or
(ii) transferring its rights and obligations hereunder pursuant to
Clause 25.2 or 25.3 to a bank or financial institution
acceptable to the Borrower and/or the WCP Borrowers (as
appropriate) and the Agent which is willing to participate in
the Facilities in its place;
provided that (y) the Lender concerned will not be obliged to take any
action under sub-paragraph (i) above if to do so would or might (in its
opinion) have an adverse effect upon
<PAGE>
its business, operations or financial condition or cause it to incur
liabilities (including any material costs and expenses) or obligations
(including Taxation) which (in its opinion) are material or would reduce
its return in relation to its participation in the Facilities and (z)
such Lender will not be obliged to take the action referred to in
sub-paragraph (ii) above unless the Borrower and/or the WCP Borrowers (as
appropriate) indemnifies it by means of an indemnity in form and content
satisfactory to such Lender against any liabilities or obligations
reasonably incurred as a result of taking such action.
11 FEES, EXPENSES AND STAMP DUTIES
11.1 Fees
11.1.1 The Borrower will pay to the Agent the following fees:
(a) for the account of each Lender a commitment fee during the
Availability Period for each respective Facility which will:
(i) be computed at a rate per annum equal at all times to
one-half of the Margin and on the daily aggregate
undrawn, uncancelled amount of the Tranche B
Multicurrency Revolving Commitment;
(ii) accrue from day to day and be calculated on the basis of
a 365 day year and the actual number of days elapsed;
(iii) be payable quarterly in arrears on the last day of each
successive calendar quarter, on each drawing under the
Tranche A Term Facility and on the termination or lapse
of the Availability Period to the extent no drawing
under the Tranche A Term Facility is made concurrent
with such termination or lapse; and
(b) for the account of each Lender a participation fee equal to
0.375% of their Commitment
(c) for its own account or as otherwise specified in the Fees
Letter, such arrangement, agency and other fees at the times
and otherwise in accordance with the terms of the Fees Letter.
11.1.2 All fees payable under the Finance Documents are exclusive of any
VAT or other similar tax chargeable upon or in connection with
such fees. If any VAT or other similar Tax is or becomes so
chargeable, such Tax will be paid by the Borrower at the same time
as the relevant fee itself is paid.
11.1.3 The Borrower authorises the Agent to discharge the fees due upon
Initial Drawdown under Clauses 11.1.1(a) and (b) from the proceeds
of Advances made upon Initial Drawdown under any Facility.
11.2 Expenses
11.2.1 The Borrower will (subject to the limitations set forth in the
Fees Letter) on demand pay and reimburse to the Agent and the
Security Agent, on the basis of a full indemnity, all reasonable
costs and expenses (including legal fees, due diligence expenses,
recordation fees and other out-of-pocket expenses and any VAT or
other similar Tax thereon) incurred by the Agent or the Security
Agent in connection with the negotiation, preparation,
recordation, execution and completion of each of the
<PAGE>
Finance Documents, and all documents, matters and things referred
to in the Finance Documents or incidental to any of the Finance
Documents.
11.2.2 The Borrower will on demand pay and reimburse to the Agent and the
Security Agent, on the basis of a full indemnity, all reasonable
costs and expenses (including reasonable legal fees, recordation
fees and other out-of- pocket expenses and any VAT or other
similar Tax thereon) incurred by the Agent or the Security Agent
in connection with:
(a) any variation, recordation, amendment, supplement,
restatement, waiver consent or suspension of rights (or any
proposal for any of the same) relating to any of the Finance
Documents (and documents, matters or things referred to
therein); and
(b) the investigation of any Event of Default or Potential Event
of Default, provided that the relevant Finance Party had
reasonable grounds to believe that such Event of Default or
Potential Event of Default had occurred.
11.2.3 The Borrower will on demand pay and reimburse to each Finance
Party, on the basis of a full indemnity, all costs and expenses
(including reasonable legal fees, recordation fees and other
out-of-pocket expenses and any VAT or other similar Tax thereon)
incurred by such Finance Party in connection with the
preservation, enforcement or the attempted preservation or
enforcement of any Finance Document or of such Finance Party's
rights under any of the Finance Documents (and documents referred
to therein).
11.3 Stamp Duties, etc.
The Borrower will:
(a) pay, and on demand indemnify each Finance Party from and against
any liability for, any stamp duty, documentary, registration and
other duties and Taxes (if any) which are or may hereafter become
payable in connection with the entry into, performance,
recordation, execution or enforcement of any of the Finance
Documents or to which any of the Finance Documents may otherwise
be or become subject or give rise; and
(b) on demand indemnify each of the Finance Parties from and against
any losses or liabilities which they may incur as a result of any
delay or omission by the Borrower to pay any such duties or Taxes.
12 REPRESENTATIONS AND WARRANTIES
12.1 Reliance and Effective Time
12.1.1 Each Obligor acknowledges that each Finance Party has or will have
entered into this Agreement and the other Finance Documents to
which it is a party and participated in the Advances in full
reliance on representations in the terms set out in the following
provisions of this Clause 12. Subject to Clause 12.1.2, each
Obligor represents and warrants to each Finance Party in the terms
set forth in Clauses 12.2 to 12.24 inclusive with reference to
itself and, where appropriate, its subsidiaries.
<PAGE>
12.1.2 The representations and warranties in this Clause 12 will be
deemed initially made on the date of this Agreement and repeated
on the date of delivery of each Drawdown Request, on each Drawdown
Date and on each Interest Payment Date thereafter by reference to
the facts and circumstances existing on each such day, except
that:
(a) each reference to financial statements in Clause 12 shall be
construed as a reference to the then latest available
financial statements of the relevant Obligor; and
(b) those representations and warranties which are expressly
stated to relate to an earlier date or time shall be deemed
repeated only by reference to the facts and circumstances
existing at that earlier date or time.
12.2 Incorporation
It is duly incorporated or organised and validly existing with limited
liability under the laws of the country or other jurisdiction of its
incorporation or organisation, and has the power to own its assets and
carry on its business as it is being conducted or is proposed to be
conducted.
12.3 Power and Authority
It has all necessary power and authority to enter into and perform all
its obligations under the Finance Documents to which it is expressed to
be a party, has taken all necessary action to authorise the execution (if
appropriate, under seal or as a deed), delivery and performance by it of
each Finance Document and other document referred to therein to which it
is expressed to be a party or signatory, and (in the case of the Borrower
only) has taken all necessary action to authorise the borrowings by it
under this Agreement.
12.4 No Contravention
12.4.1 The execution, delivery and performance of the Finance Documents
to which it is a party is not now and will not:
(a) violate, conflict with, or cause a breach or default under,
its organisational documents, any provision of any existing
law, regulation, statute, judgement, decree, order, license,
permit or consent applicable to it or its assets or of any
agreement, mortgage, contract, instrument or other undertaking
to which it is party, which is binding upon it or under which
it or any of its assets may be bound or affected; or
(b) will not oblige it to create any Security Interest over all or
any of its assets other than any Security Interest under the
Security Documents.
12.4.2 Borrowings by the Borrower under this Agreement up to and
including the maximum amount available hereunder will not cause
any limit on borrowings (whether imposed by statue, regulation,
agreement or otherwise), or on the powers of its board of
directors, to be exceeded.
12.5 Authorisations and Consents
All consents, licenses, approvals, authorisations and notifications
(whether corporate, official or otherwise) required to be obtained or
made by it in connection with the entry into,
<PAGE>
validity, performance and enforceability of each of the Finance Documents
to which it is a party have been unconditionally obtained and are in full
force and effect.
12.6 Enforceability, Ranking
Its obligations under the Finance Documents to which it is a party
constitute its legal, valid, binding and enforceable obligations and are
in full force and effect, except (in the case of enforceability) as
limited by the Reservations, and such obligations, to the extent not
secured by any Security Interest, ranks and will continue to rank at all
times at least pari passu with all its unsecured and. unsubordinated
obligations (subject to the preference of certain obligations in the
liquidation, bankruptcy or other analogous proceedings in respect of it
by mandatory operation of applicable law).
12.7 Litigation
It is not involved in any pending or, to the best of its knowledge,
threatened litigation, arbitration or administrative proceeding, nor is
there subsisting any unsatisfied judgement or award given against it by
any court, board of arbitration or other body, which is reasonably likely
to result in liability to any Obligor which has or is reasonably likely
to have a Material Adverse Effect.
12.8 Accounts
12.8.1 The consolidated or unconsolidated financial statements of each
Obligor most recently delivered to the Agent pursuant to Clause
4.1.1 or 13.3, as the case may be, including any notes thereto:
(a) have been prepared in accordance with the respective relevant
Approved Accounting Principles consistently applied, except to
the extent specified therein; and
(b) give a true and fair view of the consolidated or
unconsolidated (as the case may be) financial condition of the
relevant persons as at the respective dates to which they were
drawn up;
and in each case set forth all material actual or contingent
liabilities then existing required to be set forth therein in
accordance with the relevant Approved Accounting Principles
consistently applied subject in the case of any unaudited interim
financial statements, to changes resulting from normal year-end
audit and other adjustments.
12.9 No Material Adverse Effect
No event or matter having or likely to have a Material Adverse Effect has
occurred since 4 August, 1999.
12.10 Security Interests
Except as permitted by Clause 13.2. 10, no Security Interest exists on
the date of this Agreement on the undertaking, property or assets,
present or future, of the Borrower or any of its subsidiaries.
<PAGE>
12.11 No Defaults
Unless notified to the Agent under Clause 13.3.1, no Event of Default or
Potential Event of Default has occurred and is continuing and no event
has occurred (which has not been remedied or waived) which constitutes a
default under or in respect of any agreement, instrument, deed or
document to which it is a party or by which it or any of its assets may
be bound or affected being a default which has or is reasonably likely to
have a Material Adverse Effect, and no event has occurred (which has not
been remedied or waived) which, with the giving of notice which may
validly be given and/or the lapse of any grace period and/or giving of
any certificate or statement which may validly be given and/or making of
any determination which may validly be made and/or fulfilment of any
other condition (which notice, grace period, certificate, statement,
determination or condition is in any case specified or referred to in the
relevant agreement, instrument, deed or document), will constitute any
such default which is reasonably likely to have a Material Adverse
Effect.
12.12 Compliance with Laws
It is in compliance with all laws, regulations, statutes, judgements,
orders, licenses, permits or consents applicable to it or its assets,
except any non-compliance which does not have and is not reasonably
likely to have a Material Adverse Effect.
12.13 Ownership of Assets, Licenses and Agreements for Business Operations:
Intellectual Property
12.13.1 It has good (and in the case of Scottish property, valid and
marketable) title to, or valid leasehold or other valid right to
use, all its material assets (including without limitation those
relating to the Annan Facility and the Dudley Facility) to the
extent required to conduct the Business or the part thereof which
it conducts.
12.13.2 All licenses, consents and authorisations (including without
limitation, all such licenses, consents and authorisations
required to be obtained from the United States Food and Drug
Administration, the Medicines Control Agency and any other
regulatory body having jurisdiction over the manufacture and/or
sale of pharmaceutical products in the United States or the United
Kingdom) have been obtained which are necessary for the carrying
on of its Business or the part thereof which it conducts, and all
such licenses, consents and authorisations are in full force and
effect, and there are no circumstances known to it which indicate
that any of such licenses, consents and authorisations is
reasonably likely to be revoked or varied or amended in whole or
in part, except to the extent that the absence, non-effectiveness,
revocation, variation or amendment of any such license, consent or
authorisation would not have and would not be reasonably likely to
have a Material Adverse Effect.
12.13.3 The Obligors own or have licensed to them all Intellectual
Property rights required to conduct the Business, and the
Intellectual Property:
(a) is beneficially owned by or validly licensed to an Obligor,
is, to the best knowledge of the Obligors, free from any
licenses to third parties and Security Interests, and will not
be adversely affected by the transactions contemplated by this
Agreement;
<PAGE>
(b) has not lapsed or been cancelled and all steps have been
taken to protect and maintain the Intellectual Property
including paying renewal fees where appropriate; and
(c) does not, to the best knowledge of any Obligor, infringe any
intellectual property rights of any nature of any third
party.
12.13.4 ChiRex (Annan) Limited has made appropriate provision for an
operationally and economically viable source of water supply for
the needs of the Business currently conducted, or anticipated, at
the Annan Facility.
12.14 Tax Liabilities
No claims are being or are reasonably likely to be asserted against it
with respect to Taxes which would be reasonably likely to have a Material
Adverse Effect.
12.15 Solvency
12.15.1 As at the Initial Drawdown Date, immediately prior to each
Drawdown, it will be solvent within the definition of any law
applicable to it which requires as a condition to the validity
(and/or non-avoidability) of financial obligations undertaking by
it that it be solvent.
12.15.2 It has not taken any action nor (so far as it is aware having
made all due enquiry) have any steps been taken or legal
proceedings been started against it for winding-up, dissolution
or re-organisation, the enforcement of any Security Interest over
its assets or for the appointment of a receiver, administrative
receiver, or administrator, trustee, judicial factor, manager for
credits, or similar officer of it or of any or all of its assets
or any other procedure under which it obtains protection from any
of its creditors, or any analogous proceedings in any relevant
jurisdiction.
12.16 Group Structure The structure of the ChiRex Group as at the
Initial Drawdown Date is as set out in Schedule 4.
12.17 Indebtedness The Obligors have no Financial Indebtedness as of
the date of this Agreement other than as set forth in subclause
(iii) of the definition of Permitted Indebtedness.
12.18 Margin Stock
Neither it, nor any of its subsidiaries, is engaged principally, or as
one of its important activities, in the business of extending credit for
the purpose of purchasing or carrying any Margin Stock and none of the
proceeds of the facilities made available hereunder will be used,
directly or indirectly, to purchase or convey any Margin Stock or to
extend credit to others for the purchasing or conveying of any Margin
Stock.
12.18.1 Accountants' Report; Industry Report; Business Plan; Operating
Budget
In relation to the Accountants' Report:
(a) all factual information contained in the Accountants' Report
was, at the date of the report, true and accurate in all
material respects; and
<PAGE>
(b) all assumptions and presumptions contained in the
Accountants' Report (on the consolidated basis contemplated
in the Accountants' Report) attributable to the ChiRex Group
were reasonable at the time they were made and in relation to
the period in respect of which they were made.
In relation to the Industry Report.-
(c) all factual information contained in the Industry Report was,
at the date of the report, true and accurate in all material
respects; and
(d) all assumptions and presumptions contained in the Industry
Report (on the consolidated basis contemplated in the
Industry Report) attributable to the ChiRex Group were
reasonable at the time they were made and in relation to the
period in respect of which they were made.
In relation to the Revised Business Plan and the Operating Budget:
(e) all factual information contained in or utilised for the
purpose thereof was, at the date thereof, true and accurate
in all material respects and nothing has occurred since the
date thereof which renders any factual statement contained
therein or so utilised misleading in any material respect;
(f) all assumptions and presumptions made for the purpose thereof
were fair and reasonable at the time they were made and in
relation to the period in respect of which they were made and
so far as the ChiRex Group is aware (after having made all
due enquiry) nothing has occurred since the date thereof
which makes it necessary to change the consolidated
forecasts, projections and estimates set out therein in any
material respect; and
(g) all forecasts, projections and estimates taken on a
consolidated basis contained or referred to in the Operating
Budget and all assumptions and presumptions upon the basis of
which the same were made, at the time they were made were, to
its best knowledge, fair and reasonable and, so far as the
ChiRex Group is aware (after having made all due enquiry),
nothing has occurred since the date thereof which makes it
necessary to change any of those forecasts, projections and
estimates in any material respect.
12.19 Environmental Report
In relation to the Environmental Report, (a) to the best knowledge of the
Borrower after due inquiry all factual information contained in the
Environmental Report was, at the date of such report, true and accurate
in all material respects and nothing has occurred since the date of such
report which renders any factual statement therein misleading in any
material respect, and (b) all forecasts, projections and estimates
contained or referred to in the Environmental Report and all assumptions
and presumptions upon the basis of which the same were made, at the time
they were made were fair and reasonable and, so far as the Borrower is
aware (after having made all due enquiry), nothing has occurred since the
date thereof which makes it necessary to change any of those forecasts,
projections and estimates in any material respect.
<PAGE>
12.20 Environmental Warranties
12.20.1 To the best knowledge of each Obligor, no Environmental Event has
occurred at any time in relation to any site now or previously
owned, operated or occupied by the Borrower, any Guarantor or any
of their respective subsidiaries (or with respect to which any of
them could be subject to an Environmental Claim) which
individually or in the aggregate could reasonably be expected to
have a Material Adverse Effect.
12.20.2 It has obtained and is, and has at all times been, in substantial
compliance with all Environmental Licenses necessary in
connection with the ownership and operation of its facilities and
business as currently owned and operated or if there is or has
been any failure to so obtain or any non- compliance with such
Environmental Licenses such failure or non-compliance,
individually or in the aggregate could not reasonably be expected
to have a Material Adverse Effect.
12.20.3 No circumstances exist which could reasonably be expected to
prevent or interfere with any Obligor or any of their respective
subsidiaries obtaining or being in substantial compliance with
any Environmental Licenses in the future so as to give rise to a
Material Adverse Effect.
12.20.4 On the basis of its ongoing reviews which identify and evaluate
liabilities and costs relating to Environmental Law, it has
reasonably concluded that the application of any Environmental
Law to it or any of its subsidiaries could not reasonably be
expected to have a Material Adverse Effect.
12.20.5 Its operations, and the operations of its subsidiaries, are, and
at all times have been, in full compliance with all Environmental
Law or if there is any non-compliance with Environmental Laws,
such non-compliance could not reasonably be expected to have a
Material Adverse Effect. No circumstances exist which currently
are known or ought reasonably to be known by it which may
reasonably be expected to prevent or interfere with any Obligor
or any of their respective subsidiaries being in full compliance
with any Environmental Laws in the future so as to give rise to a
Material Adverse Effect.
12.21 Labour Law and Employee Benefit Plans
It has complied with all applicable labour and social security laws and
instituted all employee benefit plans legally necessary; these plans in
place are in full force and effect and each such plan is fully funded to
meet its expected obligations as they come due except for such failure to
fund, the liability as to which is not reasonably likely to have a
Material Adverse Effect.
12.22 US Employee Benefit Plans
(a) As at the date of this Agreement no US Obligor has a "multiemployer
plan" (as defined in the definition of Employee Benefit Plan) and no
Employee Benefit Plan of any US Obligor is subject to Title IV of
ERISA.
(b) Each Employee Benefit Plan is in compliance in form and operation and
in all other material respects with the applicable provisions of
ERISA, the Code and any other applicable Federal or US state law, and
no event or condition has occurred or exists concerning such Employee
Benefit Plan which any US Obligor or any ERISA
<PAGE>
Affiliate thereof would be under an obligation to report to the Agent
in accordance with Clause 13.3.8(e).
12.23 U.K. Employee Benefit Plans.
(a) No agreement or arrangement (other than the Scheme) exists for the
provision by any Obligor of any relevant benefits (as defined in
Section 612 of the ICTA) for any person or (without limitation to the
foregoing) superannuation benefits for employees.
(b) The last actuarial valuation of the Scheme disclosed that the
aggregate value of the assets of the Scheme at the date of the
valuation was equal to or greater than the aggregate value of the
liabilities of the Scheme on an on-going basis calculated in
accordance with the actuarial methods and assumptions used in the
valuation. So far as the Obligors are aware, no event has occurred
since the valuation that would have materially adversely affected the
funding position of the Scheme.
(c) Except that no action has been taken under the Scheme to eliminate
discriminatory treatment as between men and women which is
attributable to the provision of guaranteed minimum pensions (within
the meaning of the Pension Schemes Act 1993), the applicable Obligors
have complied in all material respects with their respective
obligations under the Scheme in relation to past and present
employees and officers of such Obligors and all material amounts due
to be paid to the Scheme from such Obligors have been paid.
(d) No undertaking or assurance has been given to any member of the
Scheme as to continuance, introduction, increase or improvement of
any benefits under the Scheme.
(e) To the best knowledge of the Obligors, there are not in respect of
the Scheme any claims or actions pending or threatened involving any
Obligor or the trustees of the Scheme (other than routine claims for
benefits).
(f) No Obligor is providing, or, upon the consummation of the Sale and
Purchase Agreement, will be obligated to provide, material ex gratia
pension or other similar payments for any former employee.
(g) No company other than the applicable Obligor participates or has
participated in the Scheme.
12.24 Governmental Regulation
It is not subject to regulation under the Public Utility Holding Company
Act of 1935, the Federal Power Act, the Interstate Commerce Act or the
Investment Company Act of 1940 or under any other federal or state
statute or regulation which may limit its ability to incur Financial
Indebtedness or which may otherwise render all or any portion of the
obligations under the Finance Documents unenforceable.
13 UNDERTAKINGS
13.1 Duration
Each Obligor undertakes to each of the Finance Parties in the terms of
the provisions of Clauses 13.2 to 13.4 (inclusive), and ChiRex Inc.
undertakes to each of the Finance Parties in terms of the provisions of
Clause 13.5, all such undertakings to continue until the
<PAGE>
liabilities and obligations under each of the Finance Documents have been
finally discharged and no Finance Party has any obligation to lend
hereunder, unless in any case the Agent (acting on the instructions of
the Majority Lenders) agrees otherwise. All undertakings set forth in
this Clause 13 are cumulative such that, if more than one set of such
undertakings are given by an Obligor, such Obligor shall be bound by the
aggregate of all restrictions set forth in the undertakings given by it.
13.2 General Undertakings
13.2.1 Use of Proceeds
It will procure that the proceeds of Advances be used only for the
purposes specified in Clause 2.2.
13.2.2 Authorisations and Consents
It will, and will procure that each of its subsidiaries will, obtain and
promptly renew from time to time and maintain in full force and effect
all such authorisations, approvals, consents, licenses and exemptions,
and promptly make and renew from time to time all such filings and
registrations, as may be required under any applicable law or regulation
(i) to enable it to perform its obligations under each of the Finance
Documents and (ii) for the validity and enforceability thereof, subject
to the Reservations.
13.2.3 Change of Business
It will not, and will procure that each of its subsidiaries will not,
engage in any material business other than the Business or any business
reasonably incidental thereto.
13.2.4 Maintenance of Status and Authorisations, Title to Assets
It will, and will procure that each of its subsidiaries will:
(a) do all such things as are necessary to maintain their respective
legal existences, except that any two or more subsidiaries of an
Obligor may consolidate or merge with one another, in each case in
accordance with Clause 13.2.9;
(b) ensure that it and each of them has the right and is duly qualified
to conduct their respective businesses as conducted in all
applicable jurisdictions, and obtain and maintain all licenses,
consents, authorisations, franchises, Intellectual Property and
other rights necessary for the preservation and operation of such
businesses in all material respects, except to the extent that the
absence of any such right or qualification, or the non-existence or
non-maintenance of such licenses, consents, authorisations,
franchises, property or rights would not be reasonably likely to
have a Material Adverse Effect; and
(c) comply in all material respects with all laws, regulations,
judgements, decrees, orders, licenses, permits or consents binding
upon it, except where non-compliance would not be reasonably likely
to have a Material Adverse Effect.
13.2.5 Arm's Length Transactions
<PAGE>
It will not enter into, and will procure that each of its subsidiaries
does not enter into, any arrangement or transaction other than (i) on an
arm's length basis and for at least market value, or (ii) on terms that
in every respect are equal to or more advantageous to such Obligor.
13.2.6 Insurances
It will:
(a) maintain and will procure that each of its subsidiaries maintains
in full force and effect adequate insurance (including, without
limitation, employer's and public liability insurance and business
interruption/loss of profits insurance) in relation to its and
their respective assets and businesses against all such risks as
are normally insured against by other companies (whose practice is
not to self-insure except in connection with reasonable excesses)
owning or possessing similar assets or carrying on similar
businesses in an amount, to the extent reasonably possible, equal
to the full replacement cost of such assets (after allowing for any
decrease in value of such assets as a result of normal wear and
tear in the case of plant and machinery and related assets), in
respect of its or their respective businesses, except where its
failure to do so would not be reasonably likely to have a Material
Adverse Effect;
(b) procure that the interest of the Security Agent is noted on all
policies of such insurance (or at the option of the Security Agent,
acting reasonably, and where the relevant insurer agrees, that such
policies are issued in the joint names of the Security Agent and
the relevant Obligor); and
(c) if so requested by the Agent, supply copies of all such policies,
and receipts for all premiums and other payments necessary for
effecting and keeping such policies. 13.2.7 Taxes
It will pay within any permitted period, and will procure that each
of its subsidiaries pays within any permitted period, all material
Taxes imposed upon it or any of them or any of its or their assets,
income or profits or any transactions undertaken or entered into by
it or any of them (other than such Taxes as are being contested in
good faith by appropriate proceedings, pending determination of
which payment may lawfully be withheld without penalty, in respect
of which Taxes there shall be set aside adequate reserves in
accordance with the applicable Approved Accounting Principles).
13.2.8 Disposals
It will not, and will procure that its subsidiaries will not
(whether by a single transaction or a number of related or
unrelated transactions and whether at the same time or over a
period of time) sell, transfer or otherwise dispose of any of its
assets (including shares of the capital stock of any other person,
or if such person is not an incorporated entity, other ownership
interests therein, and the coverage of this undertaking is to be
deemed to include any transaction the effect of which would be to
reduce the percentage of any class of shares or interests in any
person held directly or indirectly by such Obligor) or all or any
part of its undertakings, assets or revenues or any interest
therein, other than:
<PAGE>
(a) disposals of assets on an arm's length basis in the ordinary course
of trading;
(b) payment of cash in respect of a transaction not otherwise
prohibited by this Agreement, and exchange of cash equivalents for
cash;
(c) the exchange, or replacement within three months, of assets for or
with other assets required for its trading activities of similar or
greater value than the assets disposed of or replaced, on arm's
length commercial terms;
(d) disposals of assets which are no longer required for the purposes
of its business at a price not significantly less than the market
value of those assets less, if the assets would otherwise be
liquidated, the costs of the liquidation; or
(e) disposals, other than disposals of shares or ownership interests in
ChiRex America Inc. or the Borrower or ChiRex Technology Center
Inc.,not falling within any other paragraph of this Clause 13.2.8
whose consideration does not exceed GBP 5,000,000 (or its
equivalent) in any one Accounting Reference Period and GBP
15,000,000 (or its equivalent) when aggregated with all other such
disposals made by the Obligors and each of their respective
subsidiaries following the date of this Agreement.
13.2.9 Merger, Consolidation, Etc.
It will not, and will procure that its subsidiaries do not, merge or
consolidate with any other person (whether by winding-up, dissolution
or other means) except that:
(a) two or more Tier 1 Guarantors may consolidate or merge with one
another or an Obligor which is not a Tier I Guarantor may merge
into an Obligor which is a Tier 1 Obligor, and
(b) any subsidiary of an Obligor may merge into such Obligor,
provided in that the Agent shall have received legal opinions in
respect of the relevant merger or consolidation in form and substance
reasonably satisfactory to the Agent, which legal opinions shall, in
any event, confirm that none of the material rights of any Finance
Party or the material obligations and liabilities to any Finance Party
of any Obligor will, after such merger or consolidation, cease to be in
full force and effect and that the person surviving or resulting from
such merger or consolidation is bound under the Finance Documents after
giving effect to such merger or consolidation to the same extent as the
other person or persons party to such transaction were bound
immediately prior thereto.
13.2.10 Negative Pledge; Absence of Other Negative Pledges
(a) It will not, and will procure that its subsidiaries will not,
create or have outstanding any Security Interest on or over its
respective assets, other than Permitted Security Interests.
(b) It will not, and will procure that none of its subsidiaries will,
covenant for the benefit of any person other than the Lenders
pursuant to the Finance Documents, to refrain from granting for the
purpose of securing Financial Indebtedness, Security Interests on
all or any portion of its or their assets or properties, except (i)
in respect of assets subject to Permitted Security
<PAGE>
Interests in favour solely of the holder of the relevant Security
Interest and (ii) any such covenants in existence on the date
hereof pursuant to any of the Continuing Indebtedness provided that
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the principal amount of such Continuing Indebtedness shall not be
increased after the date hereof.
13.2.11 Indebtedness
It will not, and will procure that its subsidiaries will not, incur or
permit to exist any Financial Indebtedness other than Permitted
Indebtedness.
13.2.12 Loans, Etc.
It will not, and will procure that its subsidiaries will not, make or
permit to be outstanding any loans or grant any credit to any person or
make any other similar arrangement other than:
(i) loans to directors or employees which, together with all such
loans made by the Borrower and its subsidiaries, do not exceed a
maximum aggregate amount of GBP 1,000,000 (or its equivalent)
outstanding at any time;
(ii) trade credit granted in the ordinary course of its trading
business;
(iii) loans to all material terms of which the Agent (acting upon the
instructions of the Majority Lenders) has consented; and
(iv) loans or credits granted by one of the Borrower's subsidiaries to
the Borrower or another of the Borrower's subsidiaries.
13.2.13 Acquisitions of Subsidiaries or Businesses
It will not, and will procure that its subsidiaries will not (i)
acquire any subsidiary which is not its subsidiary as at the date of
this Agreement, (ii) acquire any business, or (iii) enter into any
agreement under which it may be or become bound to acquire any such
subsidiary or business other than:
(a) subsidiaries or businesses acquired exclusively with the proceeds
of one or more sales of equity securities or rights in relation
thereto, where (i) the subsidiary or business to be acquired is
such that it would not result in the untruth or inaccuracy of any
representation or warranty set forth herein, the violation of any
covenant set forth herein, or the occurrence of any Potential Event
of Default or Event of Default, as demonstrated in each case to the
reasonable satisfaction of the Agent, (ii) if on a pro forma basis
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(as demonstrated to the reasonable satisfaction of the Agent), the
proposed acquisition would result in there being a Material
Subsidiary which is not an Obligor, the acquiror shall
simultaneously with the acquisition cause compliance by the
acquired business or acquired subsidiary with Clause 13.2.22, and
(iii) if the business or subsidiary proposed to be acquired has any
interest in real property which may subject such business or
subsidiary or any other member of the ChiRex Group to liability
under any Environmental Law, the acquiror shall provide to the
Agent a report of the type described in Clause 13.2.19(g) in all
respects satisfactory to the Agent no fewer than 20 days prior to
the date of the proposed acquisition; and
<PAGE>
(b) subsidiaries or businesses acquired in whole or in part with the
proceeds of Financial Indebtedness (including any direct or
indirect usage of the Tranche B Facility) up to a value of
US$10,000,000 where (i) the acquisition satisfies the requirements
of the preceding Clause 13.2.13(a) (i), (ii) and (iii) , and (ii)
the Agent has received evidence to its reasonable satisfaction that
the proposed acquisition will not result in the ChiRex Group having
available to it at any time insufficient cash or liquid assets to
enable it to meet all of the payment obligations under this
Agreement as well as all other material liabilities as they are
anticipated to fall due; and (iii) the Agent is satisfied with the
Borrower's detailed Business Plan setting out financial projections
for the target and combined businesses, and the actions to be taken
by the management to integrate the businesses; and (iv) the Agent
is satisfied with the financial and technical due diligence
undertaken by the Borrowers and its advisers; and
(c) subsidiaries or businesses acquired in whole or in part with the
proceeds of Financial Indebtedness (including any direct or
indirect usage of the Tranche B Facility) in excess of a value of
US$10,000,000 where the requirements listed at Clause
13.2.13(b)(i)-(iv) are satisfied, together with (at the discretion
of the Agent), the undertaking of additional and independent
financial and technical due diligence to the satisfaction of the
Agent.
(d) The Agent will confirm compliance with the terms of Clause
13.2.13(a), (b) or (c) within ten Business Days of the Borrower's
notice that all relevant information has been provided to the Agent
or will set forth in writing its reasons for disagreeing with such
compliance within such ten Business Day period.
13.2.14 Restriction on Redemption and Acquisition of Own Shares
It will not, and will procure that none of its subsidiaries will,
directly or indirectly redeem, purchase, retire or otherwise acquire
for consideration any shares, warrants or other equity or equity
related securities issued by it or set apart any sum for any such
purpose or otherwise reduce its capital without the consent of the
Agent (acting on the instructions of the Majority Lenders), except to
the extent that any sums paid or set apart by ChiRex Inc. in respect of
the redemption, purchase, retirement or acquisition of its shares, when
added to any other Restricted Payments, do not exceed in aggregate the
Available Amount.
13.2.15 Blockage of Payments, Etc.
It is not, and will procure that none of its subsidiaries is, a party
to any contractual or similar arrangement pursuant to which any such
subsidiary is prohibited from making any loan, payment of dividends,
distributions of income or other amounts, or transferring any
properties or assets, to it, or any condition or requirement is imposed
on any such payment or transfer except, in the case of prohibitions on
transfers of properties or assets, customary provisions restricting
subletting or assignment of any lease governing a leasehold interest of
it or one of its subsidiaries.
13.2.16 Restriction on Payment of Dividends, Etc.
<PAGE>
It will not declare or pay, directly or indirectly, any dividends or
make any other distribution, or other amounts whether in cash or
otherwise, on any of its ordinary or other shares except to the extent
that dividends paid by ChiRex Inc., when added to any other Restricted
Payments, do not exceed in aggregate the Available Amount.
13.2.17 Material Agreements
The relevant Obligor will at its own cost and expense take all
reasonable steps to preserve and enforce available rights and remedies
in respect of the Material Agreements or any breach thereof, maintain
in full force and effect (subject to rights of termination exercisable
by the other party or parties thereto not arising from the relevant
Obligor's actions or omissions) and during their term comply with the
terms of the Material Agreements in all material respects, and not
agree to any waiver of any material term of or to any material
amendment or variation of the terms of the Material Agreements, except
to the extent that the failure to perform or observe any of the
undertakings set forth in this Clause 13.2.17 is not reasonably likely
to have a Material Adverse Effect.
13.2.18 Key Performance Indicators
The relevant Obligor will provide information and statistics to the
Agent to illustrate that it has carried out the following key
operational performance tests monthly: (and other such tests agreed to
between the Agent and relevant Obligor)
(a) a "Right First Time" test, to be measured on a monthly basis in
respect of the ten highest selling products produced at the Dudley
Facility and all the products produced at the Annan Facility such
testing to be carried out to establish what percentage of such
products is produced by the relevant Obligor to a sufficiently high
standard to be acceptable to the relevant Obligors' customers;
(b) an "On Time Delivery" test, to be measured on a monthly basis for
batches of products leaving for customers of the relevant Obligor
from both the Dudley Facility and the Annan Facility such testing
to be carried out to establish what percentage of products are
delivered to the customers within the time specified in the
relevant purchase order or other contracts providing for delivery
of products with the customers
(c) a "Plant Availability" test to measure on a monthly basis; (i)
hours for which vessels are actually operational at the Dudley
Facility against the hours such vessels are budgeted to be
operational and (ii) the times when engineering actually occurs at
the Annan Facility against when it is scheduled to occur at the
Annan Facility.
(d) an "Accident Frequency" test to measure lost operational,
engineering or production time resulting from accidents in the
Annan and Dudley facilities , such testing to take place for each
period of 100,000 man hours worked;
13.2.19 Environmental Obligations
(a) It will, and will procure that each of its subsidiaries will, (i)
comply with the terms of all Environmental Licenses and
Environmental Laws applicable to it or any of its subsidiaries,
(ii) promptly pay or cause to be paid all costs
<PAGE>
and expenses incurred in such compliance and (iii) keep or cause to
be kept all real property now or hereafter owned or operated by it
or any of its subsidiaries free and clear of any Security Interests
imposed pursuant to such Environmental Laws for such period as such
real property is owned or operated by it or any of its
subsidiaries, except for such non-compliances, failures to pay or
Security Interests which individually or in the aggregate could not
reasonably be expected to have a Material Adverse Effect.
(b) It shall promptly take, and shall cause each of its subsidiaries
promptly to take, any and all investigation, study, sampling,
testing, abatement, clean up, removal, remediation, or other
appropriate response action necessary to remove, remediate, clean
up, or abate any Environmental Contamination that is in violation
of any Environmental Laws or that presents a material risk of
giving rise to an Environmental Claim where the failure to do is
reasonably likely to have a Material Adverse Effect. In the event
it or any of its subsidiaries undertakes any such action with
respect to any Dangerous Substances on, under or about any real
property owned or operated by any of them, it or such subsidiary
shall conduct and complete such action in compliance with all
applicable Environmental Laws, and in accordance with the policies,
orders and directives of all Governmental Authorities except when,
and only to the extent that, its or such subsidiary's liability for
such presence, storage, use, disposal, transportation or discharge
of any Dangerous Substances is being contested in good faith by it
or such subsidiary.
(c) It shall promptly take, and shall cause each of its subsidiaries
promptly to take, any and all action necessary to cure any
violation of applicable Environmental Laws by such Obligor or its
Subsidiaries that could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
(d) It will not, and will procure that each of its subsidiaries will
not, generate, use, treat, store, release or dispose of, or permit
the generation, use, treatment, storage, release or disposal of
Dangerous Substances on any real property now or hereafter owned or
operated by it or any of its subsidiaries, or transport or permit
the transportation of Dangerous Substances to or from any such real
property except for Dangerous Substances used or stored at, or
transported from, any such real properties in compliance with all
applicable Environmental Laws and used in connection with the
operation, use and maintenance of any such real property, except
such non-compliances as could not reasonably be expected to have a
Material Adverse Effect.
(e) If: (i) an Event of Default has occurred and is continuing; (ii)
the Lenders receive notice under Clauses 13.2.19(f) or 13.2.19(g)
for any event for which notice is required to be delivered for any
such real property; or (iii) the Agent or the Majority Lenders
reasonably believe that there was a breach of any representation,
warranty or covenant contained in Clause 12.20, 13.2.19(a) or
13.2.19(d); then, at the written request of the Agent or the
Majority Lenders, which request shall specify in reasonable detail
the basis therefor, at any time and from time to time, it will
provide, at the
<PAGE>
Borrower's sole cost and expense, an environmental site assessment
report and compliance audit concerning any real property in form
and substance satisfactory to the Agent, prepared by an
environmental consulting firm approved by the Agent addressing the
matters in sub-clause (i), (ii) or (iii) above of this Clause
13.2.19(e) which gives rise to such request and estimating the
range of the potential costs of any removal, remedial or other
corrective action in connection with any such matter. If the
Borrower fails to provide the same within 90 days after such
request was made, the Agent may order the same, and the Obligors
shall grant and hereby grant to each of the Agent and the Lenders
and their agents access to such real property and specifically
grant the Agent and the Lenders an irrevocable non-exclusive
license, subject to the rights of tenants, to undertake such an
assessment all at the expense of the Borrower (including, without
limitation, taking samples of soil, groundwater and suspected
asbestos containing materials). Any such investigation of any real
property shall be conducted, unless otherwise agreed to by Borrower
and Agent, during normal business hours and, to the extent
reasonably practicable, shall be conducted so as not to interfere
with the ongoing operations at any such real property or to cause
any damage or loss to any property at such real property. Borrower
and Agent hereby acknowledge and agree that any report of any
investigation conducted at the request of Agent pursuant to this
Clause 13.2.19(e) will be obtained and shall be used by Agent and
Lenders for the purposes of Lenders' internal credit decisions, to
monitor and police the Facilities and to protect Lenders' security
interests, if any, created by the Finance Documents. Agent agrees
to deliver a copy of any such report to Borrower with the
understanding that Borrower acknowledges and agrees that (i) it
will indemnify and hold harmless Agent and each Lender from any
costs, losses or liabilities relating to Borrower's use of or
reliance on such report, (ii) neither Agent nor any Lender makes
any representation or warranty with respect to such report, and
(iii) by delivering such report to Borrower neither Agent nor any
Lender is requiring or recommending the implementation of any
suggestions or recommendations contained in such report.
(f) Promptly upon, and in any event within five Business Days after, an
officer or director of any Obligor obtaining knowledge thereof,
written notice of any of the following matters (including all
reasonably related claims or liabilities) which could reasonably be
expected to result in costs to any Obligor in excess of GBP
2,500,000 shall be delivered to the Lenders:
(i) any pending or threatened Environmental Claim against any
Obligor (including any such claim arising out of the
ownership or operation by an Obligor, or any
predecessor-in-interest thereto, of any real property then no
longer owned by such Obligor) or any real property then owned
or operated by an Obligor and any pending or threatened
suspension, revocation or material modification of any
Environmental License applicable to such Obligor (including
any threatened closure or shutdown of all or any part of a
facility owned or operated by such Obligor);
<PAGE>
(ii) any condition or occurrence on or arising from any real property
owned or operated by any Obligor (or with respect to which any
Obligor has liability) that (x) results in material non-compliance
by an Obligor with any applicable Environmental Law or (y) could
reasonably be expected to form the basis of an Environmental Claim
against an Obligor, or any predecessor-in-interest thereto,
(including any such claim arising out of the ownership or operation
by an Obligor of any real property then no longer owned by such
Obligor) or any real property then owned by an Obligor;
(iii) any condition or occurrence on any real property owned or operated
by any Obligor that could reasonably be expected to cause such real
property to be subject to any restrictions on the ownership,
occupancy, use or transferability by such Obligor of such real
property under any Environmental Law;
(iv) the taking of any removal or remedial action in response to the
actual or alleged presence of any Dangerous Substances on any real
property owned or operated by an Obligor, or any
predecessor-in-interest thereto, as required by any Environmental
Law or any Governmental Authority; and
(v) any change or addition to any applicable Environmental Law the
effect of which change or addition is reasonably likely to have a
Material Adverse Effect.
All such notices shall describe in reasonable detail the nature of
the claim, investigation, condition, occurrence or removal or
remedial action and the relevant Obligor's response thereto. In
addition, the relevant Obligor will provide the Lenders with copies
of such detailed reports of any Environmental Claim as may
reasonably be requested by the Majority Lenders. In addition,
promptly upon receiving written notice of the entry of any real
property (or any property with respect to which it or any of its
subsidiaries has liability or potential liability) on any register
or database maintained by any Governmental Authority or like
authority for those properties deemed contaminated with Dangerous
Substances including, without limitation, a "black spots" list,
inform the Agent of the, entry where the entry has or could
reasonably be expected to have a Material Adverse Effect.
(g) It will, and will procure that each of its subsidiaries will, undertake a
suitable site assessment of the Environmental status of any material real
property (or any material interest therein) or any company in which it
intends or they intend to acquire a majority interest (which assessments
shall include, but not be limited to, a written environmental site
assessment prepared by a reputable environmental consultant for real
property or interests therein acquired or held by any company to be
acquired), provided it is so permitted by the then owner of such real
property, and will notify the Agent of the results of such assessment.
13.2.20 Intellectual Property
<PAGE>
It will:
(a) make such registrations and pay such fees, registration Taxes and
similar amounts as are necessary to keep all Intellectual
Property rights which are material to the business of any member
of the ChiRex Group in force and to record its interest in those
Intellectual Property rights; and
(b) take such steps as are necessary and commercially reasonable
(including, without limitation, the institution of appropriate
legal proceedings) to prevent third parties from infringing those
Intellectual Property rights referred to in paragraph (a) above
and (without prejudice to paragraph (a) above) take such other
steps as are reasonably practicable to maintain and preserve its
interest in those rights.
13.2.21 Investments
It will not, and will procure that its subsidiaries will not, own
any interest in any share, equity related investment or investment
security other than Permitted Investments.
13.2.22 Financial Indebtedness within the ChiRex Group
It will not, and will procure that its subsidiaries will not, permit
any Financial Indebtedness or other obligation owed by it to another
Obligor or to it by another Obligor, to be either (i) contractually
subordinated to any other obligations, or (ii) evidenced by a note
or other similar instrument, unless that note or instrument is
pledged to the Security Agent on behalf of the Lenders in a manner
satisfactory in all respects to the Security Agent.
13.2.23 Additional Guarantors
Each Obligor will procure that each of its subsidiaries which either
after the date of this Agreement becomes a Material Subsidiary (an
"Existing Material Subsidiary") or is a person to be acquired
pursuant to Clause 13.2.13 which would be a Material Subsidiary
after giving effect to such acquisition (an "Acquired Material
Subsidiary") executes and delivers, except to the extent that (i)
such execution and delivery is prohibited by law or (ii) it would,
in the reasonable opinion of the Agent, create an unreasonable risk
of liability for the directors of such Material Subsidiary after
taking into account the costs of the contingent liability to the
Material Subsidiary attributable to the guaranteeing of obligations
under the Finance Documents versus the benefits to be derived
therefrom by such Material Subsidiary, in the case of an Existing
Material Subsidiary, within 90 days of availability to the Borrower
of information demonstrating that such subsidiary has become a
Material Subsidiary and, in the case of an Acquired Material
Subsidiary, substantially contemporaneously with the consummation of
its acquisition (and in any event within 30 days thereafter), to the
Agent a Deed of Accession and the documents described in the
following sub-clauses (i), (ii) and (iii) relevant to it:
(i) a copy, certified as of the date of the Deed of Accession as
true and complete by a duly authorised representative of such
Material Subsidiary of:
(A) the constitutional documents of such Material
Subsidiary, including evidence of due incorporation;
<PAGE>
(B) board (or other appropriate governing body) resolutions
of such Material Subsidiary (A) approving the
transactions and the matters contemplated by each of the
Finance Documents, and (B) authorising a specified
person or persons to (x) execute on its behalf each of
the Finance Documents to which it is a party, and (y)
give all notices, requests, instructions, certificates
and other documents for that Material Subsidiary in
connection with each of the Finance Documents to which
it is a party;
(C) all other corporate, trust or other applicable
authorisations and actions required of it (including
without limitation any resolutions of shareholders or
approvals of beneficiaries) to enable it to enter into,
execute and perform those of the Finance Documents to
which it is, or is to be, a party;
(D) specimen signatures of the signatories authorised by
such Material Subsidiary in the board (or other
appropriate governing body) resolutions described in
Clause 13.2.23(i)(B) to sign Financing Documents to
which it is or is to be a party; and
(E) all other resolutions, powers, declarations, approvals,
consents and licenses (corporate, official or otherwise)
necessary or appropriate for the entry into and
performance by such Material Subsidiary of the Finance
Documents to which it is or is to be a party, and for
the enforceability and validity thereof;
(ii) a legal opinion properly addressed to the Agent and Lenders
from reputable counsel acceptable to the Agent in the
jurisdiction in which such Material Subsidiary is organised or
incorporated, who may be counsel to ChiRex Inc.; and
(iii) such other documents as the Agent may reasonably request.
13.2.24 No Payment of Management Fees
No Obligor will pay to any member of the ChiRex Group which is not
an Obligor management fees, royalty fees or otherwise except in
respect of services actually provided on commercially reasonable
terms.
13.3 Information and Accounting Undertakings
13.3.1 Events of Default
ChiRex Inc. will notify the Agent of the occurrence of any Event of
Default or Potential Event of Default immediately upon becoming
aware of it and will from time to time on request deliver to the
Agent a certificate confirming that no Event of Default or Potential
Event of Default has occurred or setting out details of any Event of
Default or Potential Event of Default and the action taken or
proposed to be taken to remedy it.
13.3.2 Books of Account
Each Obligor will, and will procure that each of its respective
subsidiaries will, keep proper books of account and will prepare
management accounts in the usual form and will permit the Agent or
any authorised representative of the Agent upon
<PAGE>
reasonable notice to visit them and inspect the same at the place
where they are maintained and to interview such officers and
employees of the Borrower as the Agent may reasonably require,
provided that such visits and interviews may not occur more
frequently than once a year unless an Event of Default has occurred.
13.3.3 Appointment of Auditors
No Obligor will at any time appoint or continue to employ any
auditors other than the Auditors or other auditors of international
repute approved by the Agent, provided that nothing in this Clause
--------
13.3.3 shall limit or otherwise affect the appointment of statutory
auditors.
13.3.4 Financial Statements and Operating Budget
The Obligors will deliver, or cause to be delivered, to the Agent in
form and substance acceptable to the Agent for distribution to the
Lenders sufficient copies for each of the Lenders of the following:
(a) as soon as available and in any event within the period
required to be delivered to the SEC, the Form 10-K of ChiRex
Inc. which incorporates the consolidated financial statements
of ChiRex Inc. and its subsidiaries, audited by the Auditors
as at the end of and for that financial year;
(b) as soon as available and in any event within the period
required to be delivered to the SEC, the Form 10-Q of ChiRex
Inc. which incorporates the unaudited consolidated financial
statements of ChiRex Inc. and its subsidiaries and the
relevant consolidating adjustments as at the end of, and for,
the relevant Accounting Quarter;
(c) as soon as available and in any event within 30 days after the
end of each fiscal month for the first eleven months of each
Accounting Reference Period, consolidated monthly management
accounts for each of (i) the ChiRex Group, and (ii) the
Borrower (setting forth separately income and expenses of
ChiRex (Annan) Limited and ChiRex (Dudley) Limited) each as at
the end of such month including, without limitation, a
consolidation adjustment column;
(d) not more than 30 days after the beginning of each successive
Accounting Reference Period, the Operating Budget applicable
to such Accounting Reference Period; and provided that the
Operating Budget for the Accounting Reference period beginning
1 January 1999 shall be delivered to the Agent at least 20
days prior to the beginning of such Accounting Reference
Period;
(e) within 120 days after the end of each Accounting Reference
Period, a report of ChiRex Inc. describing in reasonable
detail each of the respective elements of the unconsolidated
Cashflow of each Obligor demonstrating the calculations made
in order to determine the Cashflow in each such case and, to
the extent practicable, reconciling the figures set forth
therein to the relevant audited figures;
provided, that the financial statements provided pursuant to
--------
Sub-clauses 13.3.4(a), (b) and (c) shall include, without
limitation, in respect of each Accounting Quarter or Accounting
Reference Period, as the case may be, a statement of consolidated
<PAGE>
profit and loss, a consolidated balance sheet, a consolidated cash
flow statement, together with a comparison of all such information
with the information, if any such consolidated information is
available, for the corresponding period in the preceding financial
year (or part thereof following the date hereof), and the financial
statements provided pursuant to Sub-clauses 13.3.4(c) to include a
comparison with the relevant projections, estimates or forecasts in
the relevant Operating Budget.
13.3.5 Financial Covenant and Other Compliance Certificates
Each of the financial statements delivered under Sub-clauses
13.3.4(a), (b) and (c) shall be accompanied by a certificate signed
by the chief financial officer of ChiRex Inc. and (in the case of
financial statements delivered pursuant to Sub-clause 13.3.4(a)
approved by a the Board of Directors of ChiRex Inc., certifying
whether or not the Obligors are in compliance with each of the
covenants contained in Clause 13.4 (such certificate to contain
detailed calculations reasonably acceptable to the Agent
demonstrating such determination), confirming that at the date of
such financial statement, no Event of Default or Potential Event of
Default has occurred, or if one has occurred, a description thereof
and the action taken or proposed to be taken to remedy it and, in
the case of the annual financial statements, (i) listing each
Material Subsidiary as at the date of such annual financial
statements, and (ii) accompanied by a certificate from the Auditors
(in such form and with such content as the Agent may reasonably
require) demonstrating whether or not the Obligors are in compliance
with the covenants contained in Clause 13.4.
13.3.6 Accounting Reference Period/Accounting Quarter
No alteration may be made to its Accounting Reference Period or
Accounting Quarters without the prior written consent of the Agent
(which consent shall not be unreasonably withheld). The Agent may
require such changes in the financial covenants contained in this
Agreement as will fairly reflect any such change.
13.3.7 Auditors' Investigations
[***Clause Reserved ***]
13.3.8 Other Information
Each Obligor (or each US Obligor, as applicable) will promptly
deliver to the Agent for distribution to the Lenders:
(a) details of any litigation, arbitration or administrative
proceedings relating to such Obligor which is reasonably
likely to give rise to a Material Adverse Effect;
(b) at the same time as sent to any of its financial creditors,
any other material document or information sent to such
creditors;
(c) such other information relating to its financial condition or
operations (including sales and details in relation to its
debtors), or those of any other Obligor as the Agent (or any
other Lender through the Agent) may from time to time
reasonably request;
<PAGE>
(d) details of any occurrence or circumstance which will
materially adversely affect the ability of any Obligor to
perform any of its payment obligations under any of the
Finance Documents;
(e) promptly upon becoming aware of any event or circumstance
pertaining to an Employee Benefit Plan which is reasonably
likely to give rise to a Material Adverse Effect, a written
notice specifying the nature thereof, what action the relevant
US Obligor or any of its ERISA Affiliates has taken, is taking
or proposes to take with respect thereto and, when known, any
action taken or threatened by the United States Internal
Revenue Service, the United States Department of Labour or the
PBGC with respect thereto; and
(f) a copy of any notice or other writing received or issued by
any Obligor in connection with the possible termination,
revocation or modification of the terms of any license,
consent or authorisation necessary for the carrying on of the
Business, or the termination, waiver, amendment or variance of
any Material Agreement.
13.3.9 Other Investigations
It will, and will procure that its subsidiaries will, at any
time during the occurrence of a Potential Event of Default or
an Event of Default, permit the Agent and such person or
persons as the Agent shall nominate at all reasonable times
during normal business hours and on not less than 24 hours'
written notice to enter into and upon the principal premises
from which the relevant Obligor's or subsidiary's business is
being conducted to view the state and condition of such
premises.
13.3.10 Approved Accounting Principles
All audited financial statements or accounts of the Obligors
delivered or to be delivered to the Agent under this Agreement
shall be prepared in accordance with the relevant Approved
Accounting Principles. If, (i) as a result of a change in law
or other change in Approved Accounting Principles such
statements or accounts are required to be prepared on a
different basis, or (ii) any change in Approved Accounting
Principles would result in any material change in the manner
in which any item relevant to the covenants in Clause 13.4
(Financial Covenants) is accounted for or reported by any
Obligor, or (iii) any Obligor shall propose to change its
Approved Accounting Principles from those specified in the
definitions herein:
(a) the relevant Obligor shall promptly so advise the Agent,
and shall deliver to the Agent (with sufficient copies
for the Lenders) the Operating Budget for the then
current Accounting Reference Period and the financial
statements required to be delivered under Clauses
13.3.4(a) and (b) during the prior twelve month period,
in each case, giving effect to the relevant changes;
(b) on request of the Agent (which request shall be deemed
made in the case of a proposal to change any of the
Approved Accounting Principles from those specified in
the definitions herein), the Obligors and the Agent (on
behalf of the Lenders) shall negotiate in good faith
with a view to agreeing such amendments to Clauses 13.4
and/or the definitions of any or all of the terms used
therein as are necessary as a result of such change in
law or in
<PAGE>
generally accepted accounting principles (or other
change) to give the Lenders comparable protection to
that contemplated at the date of this Agreement;
(c) if amendments satisfactory to the Lenders are agreed by
the Obligors and the Agent in writing within 30 days of
such notifications to the Agent, those amendments shall
take effect in accordance with the terms of that
agreement; and
(d) if such amendments are not so agreed within 30 days,
within 15 days after the end of that 30 day period, the
relevant Obligor shall either:
(i) deliver to the Agent, in reasonable detail and in
a form satisfactory to the Agent, details of all
such adjustments as need to be made to the
relevant financial statements in order to bring
them into line with Approved Accounting Principles
or, as the case may be, to eliminate the effect of
the relevant change; or
(ii) ensure that the relevant financial statements are
prepared in accordance with the relevant Approved
Accounting Principles subject, as the case may be,
to eliminating the effect of the relevant change.
13.3.11 Annual Meeting with Banks
At the request of the Agent, the Obligors shall within 120
days after the close of each Accounting Reference Period, hold
a meeting at a time and place selected by the Obligors and
reasonably acceptable to the Agent, with all of the Lenders at
which meeting shall be reviewed the financial results of the
previous fiscal year, the financial condition of the Obligors
and the Operating Budget for the then current fiscal year of
the Obligors.
13.4 Financial Covenants
13.4.1
(a) Maximum Total Debt/EBITDA
ChiRex Inc. shall maintain, as of the end of each
Accounting Quarter a Maximum Total Debt/EBITDA Ratio of
2.5:1.
(b) Minimum Interest Coverage Ratio
ChiRex shall maintain, as of the end of each Accounting
Quarter a Minimum Interest Coverage Ratio of not less
than 3.5:1.
(c) Calculation
(i) The covenants contained in Clauses 13.4.1(a) and
13.4.1(b) will be tested on a rolling aggregate
basis for the immediately preceding four quarterly
periods ending on the last day of the relevant
Accounting Quarter (except that Total Debt will be
tested as of the last day of the Accounting
Quarter most recently ended). In each case by
reference to the quarterly management accounts in
respect of the first three Accounting Quarters of
each Accounting Reference Period, delivered to the
Agent pursuant to Clauses 13.3.4(b), for the
<PAGE>
relevant period, and by reference to the audited
accounts required to be delivered to the Agent pursuant
to Clause 13.3.4(a) in respect of the fourth Accounting
Quarter of each Accounting Reference Period provided
that if when the audited accounts become available they
either demonstrate that the figures in any relevant
quarterly management accounts utilised for any such
calculation cannot have been substantially accurate or
indicate a material discrepancy which is prejudicial to
the Finance Parties between the aggregate figures for
the management accounts for the four relevant Accounting
Quarters and the aggregate audited figures, then the
Agent shall require such adjustment to the calculations
made or to be made as it reasonably considers
appropriate to rectify such inaccuracy or discrepancy,
and compliance with the covenants in this Clause 13.4.1
will be determined by reference to such adjusted
figures.
(ii) In the case of any component calculated by reference to
management accounts the relevant Approved Accounting
Principles will be applied within the reasonable
parameters which may be expected of management accounts
not the subject of audit procedures.
(iii) When testing Total Debt for the purposes of testing the
Covenants in Clauses 13.4.1(a) and (b) of this
Agreement, any sum standing to the credit of any account
of any Obligor on any date of determination will be
taken into account to reduce the calculation of
Financial Indebtedness of that Obligor, subject to the
Borrower or the WCP Borrowers (as the case may be)
complying with the provisions of Clause 9.2.
13.4.2 Capital Expenditure
(a) Before the Achievement Date only, ChiRex Inc. shall procure that the
Capital Expenditures (determined in accordance with Approved
Accounting Principles) of the ChiRex Group in each Accounting
Reference Period ending after the date of this Agreement do not
exceed (i) for the Accounting Reference Period ending on 31 December
1998, the sum of USD 33,700,000 plus the amount of capitalised
interest attributable to the members of the ChiRex Group in that
Accounting Reference Period and less the amount (being not less than
USD 5,900,000) received in cash as reimbursement from customers of
the ChiRex Group for certain Capital Expenditures and (ii) for the
Accounting Reference Period ending on 31 December 1999 and each
Accounting Reference Period thereafter, the sum of (x) being the
amount set forth for the relevant Accounting Reference Period in the
Revised Business Plan plus (y) being an amount which, when added to
any other Restricted Payments, does not exceed in aggregate the
Available Amount; provided that for any Accounting Reference Period
of less than twelve months, the permitted amount of Capital
Expenditures shall be pro-rated accordingly.
<PAGE>
13.5 Additional Undertakings of ChiRex Inc.
ChiRex Inc. undertakes that:
(a) Business
It will not engage in any business or activity other than the
ownership of the shares of capital stock of its subsidiaries, and
activities necessarily related thereto.
(b) Ownership
It will at all times own beneficially and of record 100% of the
outstanding shares of capital stock of ChiRex America Inc., the
Borrower, and ChiRex Technology Center Inc .
(c) Financial Indebtedness, Etc.
It will procure that (i) none of ChiRex America Inc., ChiRex (Annan)
Limited, nor the Borrower has any Financial Indebtedness, except (A)
in the case of the Borrower only, its obligations in respect of the
Finance Documents and the Holdings Note, and (B) in the case of
ChiRex (Annan) Limited only, its obligations under the Finance
Documents, the Annan Note and the Multiborrower Revolving Note, (ii)
the Borrower has no material assets, other than the shares of
capital stock of its subsidiaries and such assets as arise in
connection with the use of proceeds of the Advances, and (iii)
ChiRex America Inc. has expenses not exceeding GBP 2,500,000 in any
Accounting Reference Period.
14 EVENTS OF DEFAULT
14.1 List of Events
Each of the events set out in this Clause 14.1 constitutes an Event of
Default whether or not the occurrence of the event concerned is outside
the control of the Obligors or any other person.
14.1.1 Payment Default
Any Obligor fails to pay on the due date any amount payable by it
under any of the Finance Documents at the place at which, and in the
currency in which, it is expressed to be payable but, without
prejudice to Clause 27.1, such non-payment shall not constitute an
Event of Default if (i) it is a non-payment in respect of interest
or fees and the relevant payment is received by the Agent within
three Business Days of the due date for payment thereof, or (ii)
such non-payment is caused by a technical fault in transmission of
funds and such funds are subsequently successfully transmitted
within one Business Day of the due date for payment thereof.
14.1.2 Breach of Other Obligations
(a) a breach of any provision of Clause 13.4 (Financial Covenants)
occurs;
(b) any Obligor fails to comply with any of its obligations in Clause 13
(other than Clause 13.4) and, in any such case, if such failure is,
in the reasonable opinion of the Agent, capable of remedy, it is not
remedied within twenty Business Days after such Obligor becomes
aware of such failure; or
<PAGE>
(c) any Obligor fails to comply with or perform any of its other
material obligations or undertakings under any of the Finance
Documents and, if such failure is, in the reasonable opinion of the
Agent, capable of remedy, it is not remedied within twenty Business
Days after such Obligor becomes aware of such failure.
14.1.3 Misrepresentation
Any representation, warranty or statement which is made by any Obligor
in any of the Finance Documents or is contained in any certificate,
statement or notice provided under or pursuant to any of the Finance
Documents proves to be incorrect in any material respect when made (or
deemed to be repeated) unless the circumstances giving rise to that
default are, in the reasonable opinion of the Agent, remediable, and are
remedied within twenty Business Days after such Obligor becoming aware
of the same.
14.1.4 Invalidity, Unlawfulness, Etc.
(a) Any provision of any Finance Document is, or becomes, materially
invalid or unenforceable for any reason (except by reason of the
unavailability of specific performance or other equitable remedy) or
shall be repudiated or the validity or enforceability of any
provision of any Finance Document shall at any time be contested by
any Obligor party thereto, or any Obligor shall deny the existence
of any liability or obligation on its part thereunder.
(b) At any time it is or becomes unlawful under the laws of any
applicable jurisdiction for any Obligor (other than a Non-Material
Subsidiary) to perform any of its material obligations under any
Finance Document.
(c) At any time any act, condition or thing required to be done,
fulfilled or performed in order (i) to enable any Obligor lawfully
to enter into, exercise its rights under and perform the material
obligations expressed to be assumed by it in any of the Finance
Documents or (ii) to ensure that the material obligations expressed
to be assumed by any Obligor in any Finance Document are legal,
valid and binding, is not done, fulfilled or performed, and if the
relevant matter is, in the reasonable opinion of the Agent, capable
of remedy, it is not remedied within fourteen Business Days after
the first of such Obligor becomes aware of such matter.
14.1.5 Insolvency
Subject to Clause 14.2, any Obligor is declared insolvent or is unable, or
admits in writing its inability, to pay its debts as they fall due or
stops or threatens to stop payment of its debts generally or becomes
insolvent within the terms of any applicable law.
14.1.6 Receivership and Administration
Subject to Clause 14.2,
(a) an application is made for the appointment of an administrator (as
such term is used in the Insolvency Act 1986) or similar official in
relation to any Obligor or a resolution is passed by the directors
or shareholders of ChiRex Inc. or any such Obligor for such an
application to be made;
<PAGE>
(b) a liquidator, trustee, administrative or other receiver, manager
(being a person acting on behalf of all or any creditors), judicial
factor, manager for credits, or similar officer is appointed in
respect of (or takes possession of) any Obligor or in respect of (or
takes possession of) all or any part of its assets; or
(c) any distress, execution, attachment (other than an attachment or
arrest to found jurisdiction) or other process affects any asset of
any Obligor, except where such Obligor is, in good faith, reasonably
contesting such distress, execution, attachment or other process by
proceedings diligently pursued and such distress, execution,
attachment or other process is discharged or stayed within 30 days.
14.1.7 Compositions and Arrangements
Subject to Clause 14.2, a moratorium or suspension of payments in
respect of all or any classes of debts of any Obligor or a composition
or an arrangement with creditors generally of any Obligor or any other
arrangement whereby its affairs are submitted to the control of its
creditors is applied for, ordered or declared.
14.1.8 Winding Up or Similar Event
Subject to Clause 14.2, any order is made or resolution passed or any
legal proceedings are consented to by any Obligor or otherwise commenced
(by way of petition or otherwise) for the suspension of payments
generally or dissolution, termination of existence, liquidation,
winding-up or bankruptcy of any Obligor.
14.1.9 Protection from Creditors
Subject to Clause 14.2, any order is made, decree is passed or
resolution is passed or other action is taken by or with respect to any
obligor for protection from creditors of such Obligor.
14.1.10 Similar Events Elsewhere
Subject to Clause 14.2, there occurs in relation to any Obligor or any
of their respective assets, in any country or territory in which such
Obligor is organised or carries on business or to the jurisdiction of
whose courts it or any of its assets are subject, any event which
corresponds in that country or territory with any of those mentioned in
Clauses 14.1.5 to 14.1.9 (inclusive) (including, without limitation, the
filing of any petition or the commencement of any proceedings under any
US federal or state bankruptcy, insolvency, reorganisation or other
similar law), or any Obligor or its assets otherwise become subject, in
any such country or territory, to any law relating to insolvency,
bankruptcy or liquidation.
14.1.11 Cessation of Business
Subject to Clause 14.2, any Obligor ceases, or threatens to cease, to
carry on all or a substantial part of its business other than in
connection with a transfer by such Obligor of all or substantially all
of its assets in accordance with Clause 13.2.8(e) .
14.1.12 Compulsory Acquisition
All or any part of the property or assets of any Obligor is compulsorily
acquired by, or by the order of, any central or local governmental
authority and such acquisition results in a Material Adverse Effect.
<PAGE>
14.1.13 Security Interests
Any Security Interest securing obligations or liabilities in excess of GBP
2,500,000 (or its equivalent), affecting the business, undertaking or any
of the assets of any Obligor becomes enforceable (other than by the
exercise of a lien arising solely by operation of law in the ordinary
course of trading where the indebtedness in respect of which that lien is
being exercised (i) has been due for less than twenty days or (ii) is
being contested in good faith by appropriate means) whether or not steps
are taken to enforce the same.
14.1.14 Cross Default
(a) Any other Financial Indebtedness in excess of GBP 2,500,000 (or its
equivalent) of any Obligor:
(i) is not paid when due or within any applicable grace period in
any agreement relating to that Financial Indebtedness; or
(ii) becomes due and payable (or presently capable of being
declared due and payable) before its notional maturity or is
placed upon demand before it is due (or any commitment for any
such indebtedness is cancelled or suspended) by reason of a
default or event of default, however described, or by reason
of any other contractual provision requiring prepayment; or
(b) Any amount due under a WCP Facility becomes due and payable (or
presently capable of being declared due and payable) before its
normal maturity or is placed on demand before its time (or any WCP
Commitment for any WCP Facility is cancelled or suspended) by
reason of a default, however described, relating thereto.
14.1.15 Auditors' Qualification
The Auditors qualify their report on the audited consolidated financial
statements of any Obligor in any way whatsoever.
14.1.16 Material Adverse Effect
An event or circumstance occurs or exists which has, or is reasonably
likely to have, a Material Adverse Effect.
14.1.17 Litigation
Any litigation, arbitration or administrative proceedings are current or
pending at the date of this Agreement or are commenced after such date
against any Obligor, which proceedings are reasonably likely to have a
Material Adverse Effect.
14.1.18 Environmental Defaults
(a) any Obligor fails to comply with any Environmental Law or
Environmental License or becomes subject to any liability or
potential liability in respect of Dangerous Substances and that
non-compliance or liability or potential liability could
reasonably be expected to have a Material Adverse Effect;
(b) if any entry on any register maintained by any government or
local authority for those properties deemed contaminated with
Dangerous Substances, including, without limitation, a "black
spots" list, is made in respect of any
<PAGE>
property owned by any Obligor (or with respect to which property any
Obligor has any liability or potential liability) and as a result of
such registration there is a fall in the value of the property in
question which could reasonably be expected to have a Material
Adverse Effect;
(c) any change in applicable Environmental Law results in the imposition
of any liability on any Finance Party in relation to any
Environmental Event which liability is reasonably likely to have a
Material Adverse Effect; or
(d) any change in applicable law causes the rights of any person in
relation to any Environmental Claim against any Obligor to rank
ahead of the rights of any Finance Party against it in a manner
which could reasonably be expected to have a Material Adverse
Effect.
14.1.19 Judgement Default
Any final judgement, decree or order (not covered by insurance) for
the payment of money in excess of GBP 2,500,000 against all such
persons (treating any deductibles, self-insurance or retention as
not so covered) shall be rendered against any Obligor and shall not
be discharged, and there shall be any period of 30 consecutive days
following entry of such final judgement, decree or order during
which a stay of enforcement of such final judgement, decree or
order, by reason of a pending appeal or otherwise, shall not be in
effect.
14.1.20 Employee Benefit Plans
An event or condition occurs or exists with respect to any Employee
Benefit Plan and as a result of such event or condition, together
with all other such events or conditions, a US Obligor or any ERISA
Affiliate thereof has incurred or is reasonably likely to incur a
liability to a Employee Benefit Plan, the PBGC or a trustee
appointed pursuant to Section 4042 of ERISA (or any combination of
the foregoing) which is reasonably likely to have a Material Adverse
Effect.
14.1.21 Licenses, Authorisations, Material Agreements
Any license, consent or authorisation necessary for the carrying on
of the Business shall be terminated or revoked or the terms thereof
shall be modified, or any Material Agreement shall cease to be in
full force and effect, or the party thereto not a member of the
ChiRex Group (or its successor) shall give notice to terminate prior
to its scheduled termination date such Material Agreement in
accordance with its terms, or any term of such Material Agreement
shall be waived, amended or varied, in any case where the relevant
event (taking into account any replacement or other compensating
agreement or order secured by any member of the ChiRex Group) is
reasonably likely to have a Material Adverse Effect.
14.2 Bankruptcy and Insolvency Types of Events of Default
Notwithstanding the terms of Clauses 14.1.5 through 14.1.11 (inclusive),
the occurrence of any event described under such Clauses with respect to
any subsidiary of the Borrower shall not constitute an Event of Default if
the Borrower shall have, not less than twenty days prior to the occurrence
of such event, provided evidence satisfactory to the Agent that, the
occurrence of such event is not reasonably likely either to (i) have a
Material Adverse Effect or (ii) to result in the incurrence by the Lenders
of any material liabilities or claims.
<PAGE>
14.3 Cancellation and Repayment
At any time after the occurrence and during the continuance of an Event of
Default the Agent may and, if so instructed by the Majority Lenders, will
by notice to the Borrower:
(a) cancel any unborrowed amount of the Facilities (whereupon the
commitment of each Lender in respect to each Facility shall be
reduced to zero); and/or
(b) declare all Advances, accrued interest thereon and any other sum
accrued under this Agreement and any of the other Finance Documents
to be immediately due and payable, whereupon they shall become so
due and payable.
15 GUARANTEE
15.1 Guarantee
Subject to any limitations specified for the relevant Guarantor in its
Deed of Accession and subject to Clause 15.2 below, each Guarantor
irrevocably and unconditionally:
(a) as principal obligor, waiving any benefit under applicable law,
guarantees to each Finance Party, prompt performance by each Obligor
(any reference in this Guarantee to one or more Obligors shall not
be construed to include a reference by a Guarantor to itself in its
capacity as a Guarantor), of all its respective obligations under
the Finance Documents (the "Guarantee Obligation");
(b) undertakes with each Finance Party that whenever an Obligor does not
pay any amount when due under or in connection with any Finance
Document, such Guarantor shall forthwith on demand by the Agent pay
that amount (the "Payment Obligation") as if such Guarantor instead
of the relevant Obligor were expressed to be the principal obligor;
and
(e) indemnifies each Finance Party on demand against any loss or
liability suffered by it under the Finance Documents as a
result of any obligation guaranteed by such Guarantor being or
becoming unenforceable, invalid or illegal.
15.2 Limitation on Guarantee Obligations
Anything contained in this Clause 15 to the contrary notwithstanding, if
any Fraudulent Transfer Law (as hereinafter defined) is determined by any
United States court of competent jurisdiction to be applicable to the
obligations of any US Obligor under the Guarantee set forth in this Clause
15, such obligations of such US Obligor hereunder shall be limited to a
maximum aggregate amount equal to the largest amount that would not render
its obligations hereunder subject to avoidance as a fraudulent transfer or
conveyance under Section 548 of Title 11 of the United States Code or any
applicable provisions of comparable state law, to the extent applicable to
any respective guarantee of any US Obligor (collectively, the "Fraudulent
Transfer Laws"), in each case after giving effect to all other liabilities
of such US Obligor, contingent or otherwise, that are relevant under the
Fraudulent Transfer Laws (specifically excluding, however, any liabilities
of such US Obligor in respect of intercompany indebtedness to any other
member of the ChiRex Group to the extent that such indebtedness would be
discharged in an amount equal to the amount paid by such US Obligor
hereunder) and after giving effect as assets to the value (as determined
under the applicable provisions of the Fraudulent Transfer Laws) of any
<PAGE>
rights to subrogation, reimbursement, indemnification or contribution of
such US Obligor pursuant to applicable law or pursuant to the terms of any
agreement.
15.3 Joint and Several Liability
Subject to any limitations specified for the relevant Obligor in its Deed
of Accession, if applicable, each obligation expressed under this
Agreement to be an obligation of the Obligors shall be the joint and
several obligation of each Obligor.
15.4 Continuing Guarantee
This guarantee is a continuing guarantee and will extend to the ultimate
balance of all sums payable by the Obligors under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
15.5 Reinstatement
(a) Where any discharge (whether in respect of the obligations of any
Obligor or any security for those obligations or otherwise) is made
in whole or in part or any arrangement is made on the faith of any
payment, security or other disposition which is avoided or must be
restored on insolvency, liquidation or otherwise without limitation,
the liability of each Guarantor under this Clause 15 shall continue
as if the discharge or arrangement had not occurred.
(b) Each Finance Party may concede or compromise any claim that any
payment, security or other disposition is liable to avoidance or
restoration.
15.6 Waiver of Defences
The obligations of each Guarantor under this Clause 15 will not be
affected by, and each Guarantor waives its rights (to the fullest extent
permitted by law) in connection with, any act, omission, matter or thing
which, but for this provision, would reduce, release or prejudice any of
its obligations under this Clause 15 or prejudice or diminish those
obligations in whole or in part, including (whether or not known to it or
any Finance Party):
(a) any time or waiver granted to, or composition with, any Obligor or
any other person;
(b) the taking, variation, compromise, exchange, renewal or release of,
or refusal or neglect to perfect, take up or enforce, any rights
against, or security over assets (including any balance of any
deposit or account or credit on the books of any Finance Party or
other person in favour of any Obligor or any other person) of, any
Obligor or other person or any non- presentation or non-observance
of any formality or other requirement in respect of any instrument
or any failure to realise the full value of any security;
(c) any incapacity or lack of powers, authority or legal personality of
or dissolution or change in the members or status of any Obligor or
any other person;
(d) any variation (however fundamental) or replacement of a Finance
Document or any other document or security so that references to
that Finance Document in this Clause 15 shall include each variation
or replacement;
(e) any unenforceability, illegality or invalidity of any obligation of
any person under any Finance Document or any other document or
security, to the intent that such
<PAGE>
Guarantor's obligations under this Clause 15 shall remain in full
force and its guarantee be construed accordingly, as if there were
no unenforceability, illegality or invalidity; or
(f) any postponement, discharge, reduction, non-provability or other
similar circumstance affecting any obligation of any Obligor under a
Finance Document resulting from any insolvency, liquidation or
dissolution proceedings or from any law, regulation or order so that
each such obligation shall for the purposes of each Guarantor's
obligations under this Clause 15 be construed as if there were no
such circumstance.
15.7 Immediate recourse
Each Guarantor waives any right it may have of first requiring any Finance
Party (or any trustee or agent on its behalf) to (i) proceed against or
enforce any other rights or security or claim payment from any person, or
(ii) pursue any other remedy in the power of any Finance Party whatsoever,
before enforcing its rights against such Guarantor under this Clause 15.
15.8 Appropriations
Until all amounts which may be or become payable by the Obligors under or
in connection with the Finance Documents have been irrevocably paid in
full, each Finance Party (or any trustee or agent on its behalf) may:
(a) refrain from applying or enforcing any other moneys, security or
rights held or received by that Finance Party (or any trustee or
agent on its behalf) in respect of those amounts, or apply and
enforce the same in such manner and order as it sees fit (whether
against those amounts or otherwise) and no Guarantor shall be
entitled to the benefit of the same; and
(b) hold in a market rate interest-bearing suspense account any moneys
received from each Guarantor or on account of such Guarantor's
liability under this Clause 15, with interest accruing thereon for
the account of such Guarantor at a rate determined by such Finance
Party, acting reasonably, to be appropriate in the circumstances.
15.9 Non-competition
Until all amounts which may be or become payable by the Obligors under or
in connection with the Finance Documents have been irrevocably paid in
full, each Guarantor shall not, after a claim has been made or by virtue
of any payment or performance by it under this Clause 15:
(a) be subrogated to any rights, security or moneys held, received or
receivable by any Finance Party (or any trustee or agent on its
behalf) or be entitled to any right of contribution or indemnity in
respect of any payment made or moneys received on account of such
Guarantor's liability under this Clause 15;
(b) without the consent of the Agent, claim, rank, prove or vote as a
creditor of any Obligor or its estate in competition with any
Finance Party (or any trustee or agent on its behalf); or
(c) receive, claim or have the benefit of any payment, distribution or
security from or on account of any Obligor, or exercise any right of
set-off as against any Obligor.
<PAGE>
Each Guarantor shall hold in trust for and forthwith pay or transfer to
the Agent for the Finance Parties any payment or distribution or benefit
of security received by it contrary to this Clause 15.9.
15.10 Additional Security, Relation to Other Obligations of Guarantors
This guarantee is in addition to and shall not in any way be prejudiced by
any other security now or hereafter held by any Finance Party.
16 THE AGENT AND THE OTHER FINANCE PARTIES
16.1 Appointment and duties of the Agent, Security Agent and Arranger
16.1.1 Each Lender hereby appoints (i) National Westminster Bank plc as
Agent, to act as its agent in connection with the Finance
Documents, (ii) Bankers Trust Company as Security Agent, to act as
security agent for purposes of the Security Documents, and (iii)
National Westminster Bank plc to act as Arranger, under and in
connection with the Finance Documents, and irrevocably authorises
each of the Agent and the Security Agent for and on its behalf to
exercise such rights, powers and discretions as are specifically
delegated to it by the terms of the Finance Documents, together
with all such rights, powers and discretions as are incidental
thereto, and to give a good discharge for any moneys payable under
the Finance Documents. The Lenders empower the Agent or the
Security Agent, as the case may be, on the broadest terms to take
such actions and to exercise any and all rights derived from this
Agreement, including, but not limited to (i) the enforcement of the
Finance Documents, and (ii) the sending or receiving of whatever
notices or communications the Agent may deem necessary or
advisable.
16.1.2 The Agent will act solely as agent for the Lenders in carrying out
its functions as agent under the Finance Documents and will
exercise the same care as it would in dealing with a credit for its
own account.
16.1.3 The relationship between the Lenders and the Agent is that of
principal and agent only. The Agent shall not have, nor be deemed
to have assumed, any obligations to, or trust or fiduciary
relationship with, the other Finance Parties or ChiRex Inc. or any
member of the ChiRex Group other than those for which specific
provision is made by the Finance Documents.
16.1.4 The relationship between the Lenders and the Security Agent is that
of principal and agent only. The Security Agent shall not have, nor
be deemed to have assumed, any obligations to, or trust or
fiduciary relationship with, the other Finance Parties or ChiRex
Inc. or any member of the ChiRex Group other than those for which
specific provision is made by the Finance Documents, and subject to
Clause 16.13 below.
16.2 Agent's and Security Agent's Duties
The Agent and in the case of Clauses 16.2.5 and 16.2.6 the Security Agent
shall:
16.2.1 promptly send to each Lender details of each communication received
by it from ChiRex Inc., the Borrower or the members of the ChiRex
Group under the Finance Documents, except that details of any
communication relating to a particular Lender shall be sent to that
Lender only;
<PAGE>
16.2.2 promptly send to each Lender a copy of any legal opinion delivered
under this Agreement or any of the other Finance Documents and of
any document or information received by it pursuant to Clause 13.3
(Information and Accounting Undertakings) or (if requested) pursuant
to Clause 4.1;
16.2.3 promptly send to the Security Agent such certification as the
Security Agent requires in respect of the identity of the Lenders
and their respective Commitments and amounts outstanding under the
Facilities;
16.2.4 subject to those provisions of this Agreement which require the
consent of all the Lenders, act in accordance with any instructions
from the Majority Lenders or, if so instructed by the Majority
Lenders, refrain from exercising a right, power or discretion vested
in it under this Agreement or any of the Finance Documents;
16.2.5 have only those duties, obligations and responsibilities expressly
specified in the Finance Documents; and
16.2.6 without prejudice to any other clause hereof (including without
limitation Clauses 16.3.5, 16.4(c) and 16.6.3), promptly notify each
Lender of the occurrence of any Event of Default or Potential Event
of Default of which an officer of the Agent responsible for the
administration of this Agreement becomes aware.
16.3 Agent's and Security Agent's Rights
Each of the Agent the Security Agent and the Arranger in the case of
Clauses 16.3.7 to 16.3.10, may:
16.3.1 perform any of its duties, obligations and responsibilities under
the Finance Documents by or through its personnel, delegates or
agents (on the basis that the Agent and/or Security Agent may extend
the benefit of any indemnity received by it hereunder to its
personnel, delegates or agents);
16.3.2 refrain from exercising any right, power or discretion vested in it
under the Finance Documents until it has received instructions from
the Majority Lenders, or where relevant, all the Lenders;
16.3.3 unless it has received notice in writing to the contrary treat (a)
the Lender which makes available any portion of an Advance as the
person entitled to repayment of that portion unless all or part of
it has been transferred in accordance with Clause 25 below, and (b)
the office set under a Lender's name in Schedule 1 (or, in the case
of a Transferee, at the end of the Transfer Certificate to which it
is a party as Transferee) as its Lending Office;
16.3.4 refrain from doing anything which would or might in its opinion be
contrary to any law, regulation, directive, judgement or decree of
any court of any jurisdiction or otherwise render it liable to any
person and may do anything which is in its opinion necessary to
comply with any such law, regulation, judgement, decree or
directive;
16.3.5 assume that no Event of Default or Potential Event of Default has
occurred unless one of its officers while active on the account of
the Borrower acquires actual knowledge to the contrary;
16.3.6 refrain from taking any step (or further step) to protect or
enforce the rights of any Lender under this Agreement or any of the
other Finance Documents until it has been indemnified and/or secured
to its satisfaction against any and all costs,
<PAGE>
losses, expenses or liabilities (including legal fees) which it
would or might sustain or incur as a result;
16.3.7 rely on any communication or document believed by it to be genuine
and correct and to have been communicated or signed by the person to
whom it purports to be communicated and signed;
16.3.8 rely as to any matter of fact which might reasonably be expected to
be within the knowledge of the Borrower on a statement by or on
behalf of the Borrower;
16.3.9 obtain and pay for such legal or other expert advice or services as
may seem necessary to it or desirable and rely on any such advice.
16.3.10 accept without enquiry such title as the Obligors may have to any
asset or assets intended to be the subject of the security created
by the Security Documents; and
16.3.11 hold or deposit any title deeds, the Security Documents or any
other documents in connection with any of the assets charged by the
Security Documents with any banker or banking company or any company
whose business includes undertaking the safe custody of deeds or
documents or with any lawyer or firm of lawyers and it shall not be
responsible for or be required to insure against any loss incurred
in connection with any such holding or deposit and it may pay all
sums required to be paid on account or in respect of any such
deposit.
16.4 Exoneration of Agent, Security Agent and Arranger
Neither the Agent nor the Security Agent nor the Arranger nor any of their
respective personnel or agents:
(a) shall be responsible for the adequacy, accuracy or completeness of
any representation, warranty, statement or information in the
Information Memorandum, any of the Finance Documents or any notice
or other document delivered under the Finance Documents;
(b) shall be responsible for the execution, delivery, validity,
legality, adequacy, enforceability or admissibility in evidence of
any of the Finance Documents;
(c) shall be obliged to enquire as to the occurrence or continuation of
an Event of Default or a Potential Event of Default;
(d) shall be responsible for any failure of any member of the ChiRex
Group or any of the Lenders duly and punctually to observe and
perform their respective obligations under the Finance Documents;
(e) shall be responsible for the consequences of relying on the advice
of any professional advisers selected by any of them in connection
with the Finance Documents;
(f) shall be liable for acting (or refraining from acting) in what it
believes to be in the best interests of the Lenders in circumstances
where it has been unable, or it is not practicable, to obtain the
instructions of the Lenders or the Majority Lenders (as the case may
be); or
(g) shall be liable for anything done or not done by it under or in
connection with the Finance Documents save in the case of its own
negligence or wilful misconduct.
<PAGE>
16.5 The Agent, the Security Agent and the Arranger Individually
16.5.1 If it is a Lender, each of the Agent, the Security Agent and the
Arranger shall have the same rights and powers under the Finance
Documents as any other Lender and may exercise those rights and
powers as if it were not also acting as Agent, Security Agent or
Arranger.
16.5.2 Each of the Agent, the Security Agent and the Arranger may:
(a) retain for its own benefit (and without liability to account)
any fee or other sum receivable by it for its own account; and
(b) accept deposits from, lend money to, provide any advisory,
trust or other services to or engage in any kind of banking or
other business with any party to this Agreement, or any
subsidiary or affiliate of any party (and, in each case, may
do so without liability to account).
16.6 Communications and Information
16.6.1 All Communications to any member of the ChiRex Group are to be made
by or through the Agent. Each Finance Party will notify the Agent
of, and provide the Agent with a copy of, any communication between
such Finance Party and the relevant member of the ChiRex Group or
any other of the Finance Parties on any matter concerning the
Facilities or the Finance Documents.
16.6.2 The Agent will not be obliged to transmit to the other Finance
Parties any information in any way relating to any of the parties to
the Finance Documents which the Agent may have acquired otherwise
than in connection with the Facilities or the Finance Documents.
16.6.3 In acting as Agent for the Lenders, the Agent's banking division
shall be treated as a separate entity from any other of its
divisions (or similar unit of the Agent in any subsequent
re-organisation), subsidiaries or affiliates (the "Other Divisions")
and, in the event that the Agent should act for any member of the
ChiRex Group in a corporate finance or other advisory capacity
("Advisory Capacity"), any information given by any of them to one
of the Other Divisions is to be treated as confidential and will not
be available to the Finance Parties without the consent of the
person for whom the Agent is acting in an Advisory Capacity,
provided that:
(a) the consent of that person shall not be required in relation
to any information which the Agent in its discretion
determines relates to an Event of Default or a Potential Event
of Default or in respect of which the Lenders have given a
confidentiality undertaking in a form satisfactory to the
Agent and the Borrower or that person; and
(b) if representatives or employees of the Agent receive
information in relation to an Event of Default or a Potential
Event of Default while acting in an Advisory Capacity they
will not be obliged to disclose such information to
representatives or employees of the Agent in their capacity as
agent bank, security agent or joint arranger hereunder or to
any of the Lenders if to do so would breach any rule or
regulation or fiduciary duty imposed upon such persons.
<PAGE>
16.7 Non-Reliance on Agent, Security Agent or Arranger
Each Lender confirms in favour of the Agent, Security Agent and Arranger
that it is (and will at all times continue to be) solely responsible for
making its own independent investigation and appraisal of the business,
operations, financial condition, creditworthiness, status and affairs of
the ChiRex Group and has not relied, and will not at any time rely on the
Agent or the Security Agent or the Arranger:
16.7.1 to provide it with any information relating to the business,
operations, financial condition, creditworthiness, status and
affairs of the ChiRex Group, whether coming into its possession
before or after the making of any Advance, except as otherwise
specifically provided herein; or
16.7.2 to check or enquire into the adequacy, accuracy or completeness of
any information provided by the ChiRex Group under or in connection
with this Agreement or any other Finance Document (whether or not
such information has been or is at any time circulated to it by the
Agent), including, without limitation, that contained in the
Information Memorandum; or
16.7.3 to assess or keep under review the business, operations, financial
condition, creditworthiness, status or affairs of the ChiRex Group.
16.8 Indemnity to Agent, Security Agent and Arranger
16.8.1 Each Lender shall on demand fully indemnify the Agent, the Security
Agent and the Arranger and their respective officers, employees and
affiliates (collectively the "Agency Indemnities") in the proportion
which its Relevant Amount bears to the Relevant Amounts of all the
Lenders at the relevant time against any cost, expense or liability
sustained or incurred by any of the Agency Indemnities in their
respective capacities as Agent, Security Agent and Arranger as a
consequence of or in connection with complying with any instructions
from the Lenders or the Majority Lenders (as the case may be) or
otherwise sustained or incurred in their respective capacities as
Agent, Security Agent and Arranger in connection with the Finance
Documents or its respective duties, obligations and responsibilities
under the Finance Documents, except to the extent that they are
sustained or incurred principally as a result of the negligence or
wilful misconduct of such Agency Indemnity as finally determined by
a court having jurisdiction (the determination not being subject to
appeal).
16.8.2 The provisions of Clause 16.8.1 are without prejudice to the
obligations of the Borrower to indemnify the Agency Indemnities
pursuant to Clause 27 and the Borrower will reimburse each Lender on
demand for any payment made by that Lender pursuant to Clause
16.8.1.
16.9 Termination and Resignation of Agency: Appointment of Successor
16.9.1 The Agent may resign its appointment at any time by giving not less
than 30 days' notice to the Lenders and the Borrower.
16.9.2 A successor Agent shall be selected:
(a) by the retiring Agent (following consultation with the
Borrower) nominating one of its subsidiaries or affiliates as
successor Agent in its notice of resignation; or
<PAGE>
(b) if the retiring Agent makes no such nomination, by the
Majority Lenders nominating one of the Lenders as successor
Agent (following consultation with the Borrower); or
(c) if the Majority Lenders have failed to nominate a successor
Agent within 30 days of the date of the retiring Agent's
notice of resignation, by the retiring Agent nominating a
financial institution of good standing to be the successor
Agent.
16.9.3 The resignation of the retiring Agent and the appointment of the
successor Agent will only become effective upon the successor
Agent accepting its appointment as Agent in writing at which time:
(a) the successor Agent will become bound by all the
obligations of the Agent and become entitled to all the
rights, privileges, powers, authorities and discretions of
the Agent hereunder;
(b) the agency of the retiring Agent will terminate but without
prejudice to any liabilities which the retiring Agent may
have incurred or the indemnities to which the retiring
Agent may be entitled prior to the termination of its
agency; and
(c) the retiring Agent will be discharged from any further
liability or obligation under or in connection with the
Finance Documents (save that the outgoing Agent shall pay
to the successor a pro rata proportion of the agency fee
paid under Clause 11.1.1 (c)).
16.9.4 The retiring Agent will co-operate with the successor Agent in
order to ensure that its functions are transferred to the
successor Agent without disruption to the service provided to the
ChiRex Group and the Lenders and will promptly make available to
the successor Agent such documents and records as have been
maintained in connection with this Agreement in order that the
successor Agent is able to discharge its functions.
16.9.5 The provisions of this Agreement will continue in effect for the
benefit of any retiring Agent in respect of any actions taken or
omitted to be taken by it or any event occurring before the
termination of its agency.
16.10 Resignation of Security Agent
The Security Agent may resign its appointment in exactly the same manner
as set out in relation to the Agent in Clause 16.9 above except that the
Security Agent's resignation shall not take effect until all necessary
deeds and documents have been entered into in order to substitute its
successor as holder of the security comprised in the Security Documents.
16.11 Payments to Finance Parties
16.11.1 The Agent will account to the other Finance Parties for their due
proportion of all sums received by the Agent for such Finance
Parties, whether by way of repayment of principal or payment of
interest, commitment commission, fees or otherwise.
16.11.2 Save as otherwise specifically agreed between the Agent and the
other Finance Parties in the case of any arrangement fee, the
Agent may retain for its own use
<PAGE>
and benefit, and shall not be liable to account to the other
Finance Parties for all or any part of, any sums received by it
by way of agency fee or any other fee or by way of reimbursement
of expenses incurred by it.
16.12 Change of Office of Agent, Security Agent or Arranger
The Agent, the Security Agent and the Arranger may at any time and from
time to time in their respective sole discretion by written notice to
the Borrower and each of the other Finance Parties designate a different
office from which their respective duties as Agent, Security Agent or
Arranger will thereafter be performed.
16.13 Security Agency Provisions:
16.13.1 Trust: The Security Agent shall, and each Finance Party agrees
that it shall, hold the Security Property in trust for the
benefit of the Finance Parties on the terms and subject to the
conditions set out in this Clause 16.3, and the other provisions
of the Finance Documents.
16.13.2 Defects in Security: The Security Agent shall not be liable for
the any failure, omission, or defect in perfecting the Security
created by or pursuant to any Security Document, including (a)
failure to obtain any authorisation for the execution, validity,
enforceability or admissibility in evidence of any Security
Document and (b) failure to effect or procure registration of or
otherwise protect or perfect any of the Security created by the
Security Documents under any laws in any territory.
16.13.3 No Enquiry: The Security Agent may accept without enquiry,
requisition, objection or investigation such title as any
Obligor may have to the Charged Assets.
16.13.4 Indemnity out of Trust Property: The Security Agent and every
receiver, delegate, attorney, agent or other similar person
appointed under any Security Document may indemnify itself out
of the Security Property against all liabilities, charges,
claims, costs, expenses or losses incurred or sustained by it in
relation to any Finance Document, or in the exercise of any
right or trust vested in any of them or in respect of any other
matter or thing done or omitted to be done in any way relating
to any Finance Document, except to the extent resulting from its
own wilful default or gross negligence.
16.13.5 Retention of documents: The Security Agent may take any steps it
sees fit as to the holding of any title deeds and other
documents relating to any of the assets subject to the security
conferred by the Security Documents, including allowing any
Obligor to retain them.
16.13.6 Investments: All moneys which under the trusts contained in the
Finance Documents are received or held by the Security Agent
shall be paid to the Agent who will distribute such sums in
accordance with the provisions of the Finance Documents.
16.13.7 Trustee Act: The Security Agent shall have all the rights,
privileges and immunities which gratuitous trustees have or may
have in England, even though it is entitled to remuneration.
16.13.8 Perpetuity Period: The perpetuity period for any trusts created
by the Finance Documents shall be 80 years from the date of this
Agreement.
<PAGE>
17 EVIDENCE OF INDEBTEDNESS
In any proceedings relating to this Agreement, a statement as to any
amount due to any Finance Party under this Agreement which is certified
as being correct by an officer of the Agent and a statement as to any
amount due to a Finance Party under this Agreement which is certified as
being correct by an officer of that Finance Party shall in the absence
of manifest error, unless otherwise provided in this Agreement, be prima
facie evidence of the amount so due and that such amount is in fact due
and payable.
18 APPLICATION OF MONEYS
If any sum paid or recovered in respect of the liabilities of the
Obligors under any of the Finance Documents is less than the amount then
due, the Agent shall apply that sum in the following order:
(a) first to any unpaid fees and reimbursement of unpaid expenses of
the Agent and the Security Agent;
(b) secondly to any unpaid fees and reimbursement of unpaid expenses
of the Lenders;
(c) thirdly to unpaid interest;
(d) fourthly to unpaid principal; and
(e) fifthly to other amounts due under the Finance Documents;
in each case pro rata to the outstanding amounts owing to the Finance
Parties under the Finance Documents taking into account any applications
under this Clause 18.
19 PRO RATA PAYMENTS
19.1 If any amount owing by any Obligor under any Finance Document to a
Lender (the "Recovering Lender") is discharged by payment, set-off, use
of cash collateral or any other manner other than through the Agent in
accordance with Clause 9.1.1 (such amount being referred to in this
Clause 19.1 as the "Recovery'), then:
(a) within two Business Days of receipt of the Recovery, the
Recovering Lender shall pay to the Agent an amount equal (or
equivalent) to such Recovery;
(b) the Agent shall treat such payment as if it were part of the
payment to be made by the Borrower to the Lenders rateably in
accordance with their respective Commitments; and
(c) save for any receipt by the Recovering Lender as a result of the
operation of paragraph (b) above, as between the members of the
ChiRex Group and the Recovering Lender the Recovery shall be
treated and deemed as not having been paid.
19.2 Each Lender shall notify the Agent promptly of any such Recovery by that
Lender other than by payment through the Agent. If any Recovery
subsequently has to be wholly or partly refunded by the Recovering
Lender which paid an amount equal thereto to the Agent under Clause
19.1(a), each Lender to which any part of that amount was distributed
shall, on request from the Recovering Lender, repay to the Recovering
Lender such
<PAGE>
Lender's pro rata share of the amount which has to be refunded by the
Recovering Lender.
19.3 Each Lender shall on request supply to the Agent such information as the
Agent may from time to time request for the purpose of this Clause 19.
Notwithstanding the foregoing provisions of this Clause 19, no
Recovering Lender shall be obliged to share with another person any
Recovery which it receives pursuant to legal proceedings taken by it to
recover any sums owing to it under the Finance Documents where such
other person has a legal right to, but does not, either join in such
proceedings or commence and diligently pursue separate proceedings to
enforce its rights in the same or another court (unless the proceedings
instituted by the Recovering Lender are instituted by it without prior
notice having been given to such other person through the Agent).
19.4 Failure by any Recovering Lender to comply with any of the provisions of
this Clause 19 shall not release any other Recovering Lender from any of
its obligations or liabilities under this Clause 19.
19.5 Each party to this Agreement agrees to take all steps required of it
pursuant to Clause 19.1, and to use its reasonable endeavours to obtain
any consents or authorisations which may at any relevant time be
required, for any payment by it pursuant to this Clause 19.
19.6 The provisions of this Clause 19 shall not, and shall not be construed
so as to, constitute a charge by a Lender over all or any part of a sum
received or recovered by it in the circumstances mentioned in this
Clause 19.
20 SET-OFF
Any Finance Party may without notice to any members of the ChiRex Group,
following the giving of notice by the Agent pursuant to Clause 14.3,
combine, consolidate or merge all or any of the accounts of any member
of the ChiRex Group with, and liabilities to, that Finance Party and may
set off or otherwise retain or transfer any sum standing to the credit
of any such accounts in or towards the satisfaction of any of the
liabilities of such member of the ChiRex Group to that Finance Party
under the Finance Documents (whether or not such liabilities are then
due for payment), and may do so notwithstanding that the balances on
such accounts and the liabilities may not be expressed in the same
currency, and each Finance Party is hereby authorised to effect any
necessary conversions at the Agent's spot rate of exchange then
prevailing.
21 NOTICES
21.1 Save as specifically otherwise provided in this Agreement or agreed with
the Agent any notice, demand or other communication to be served under
this Agreement may be served upon any party hereto only by posting by
first class (or air mail) post or by delivering the same in person or by
courier or sending the same by facsimile transmission to the party to be
served at its address or facsimile number given in the relevant Finance
Document or at such other address or number as it may from time to time
notify in writing to the other parties hereto. As regards the initial
parties to this Agreement, their respective addresses and numbers are
set out under their respective names in Schedule 1 or in the signature
pages of this Agreement.
<PAGE>
21.2 A notice or demand served by first class (or air mail) post shall be
deemed duly served upon receipt, a notice or demand served in person or
by courier shall be deemed duly served when delivered and a notice or
demand sent by facsimile transmission shall be deemed to have been
served at the time of transmission unless served on a non-Business Day
or after 5.00 p.m. at the place in which the recipient is located in
which case it will be deemed served at 9.00 a.m. at the place in which
the recipient is located on the following Business Day.
21.3 In proving service of any notice or demand it will be sufficient to
prove, in the case of a letter, that such letter was properly stamped or
franked first class (or with appropriate air mail postage), addressed
and placed in the post, in the case of a notice or demand served by
courier that it was delivered by the courier company and, in the case of
a facsimile transmission, that such facsimile was duly transmitted to a
current facsimile number of the addressee at the address referred to
above and the transmission report indicates that it was correctly sent
and received.
22 NO IMPLIED WAIVERS
22.1 No failure or delay by the Agent, the Security Agent or the Arranger or
any other Finance Party in exercising any right, power or privilege
under any of the Finance Documents shall operate as a waiver thereof nor
shall any single or partial exercise of any right, power or privilege
preclude any further exercise thereof or the exercise of any other
right, power or privilege.
22.2 The rights and remedies provided in the Finance Documents are cumulative
and not exclusive of any rights and remedies provided by law and all
such rights and remedies howsoever arising will, save where expressly
provided to the contrary therein, be available to the Finance Parties
severally and any Finance Party shall be entitled to commence
proceedings in connection therewith in its own name.
23 INVALIDITY OF ANY PROVISION
If any of the provisions of this Agreement become invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired.
24 CONFIDENTIALITY
24.1 Each of the Finance Parties agrees with the Borrower to hold
confidential all information which they acquire under or in connection
with the Finance Documents save to the extent they are required by law
or regulation, or are requested by any regulator with jurisdiction over,
or over any business of, the relevant Finance Party or any of its
subsidiaries or affiliates, or where necessary in connection with
litigation, to disclose the same or the same comes into the public
domain (otherwise than as a result of a breach of this Clause 24).
24.2 Nothing in Clause 24.1 shall restrict any Finance Party from disclosing
information in accordance with Clause 25.4 (Disclosure of Information).
24.3 Except to the extent required by law, all public announcements in
relation to this Agreement shall be made through the Agent. The Agent
will not make any written public
<PAGE>
announcement in relation to this Agreement without first having the text
of the announcement approved by ChiRex Inc. (such approval not to be
unreasonably withheld or delayed).
25 CHANGES TO PARTIES
25.1 No Assignment by the ChiRex Group
None of the members of the ChiRex Group may assign or transfer all or
part of their rights or obligations under this Agreement or any of the
other Finance Documents.
25.2 Lenders
25.2.1 A Lender (a "Transferor") may at any time, following
consultation with the Borrower, assign or otherwise transfer
(together, "Transfer") all or any part of its rights or
obligations under the Finance Documents to any person which is
then a Qualifying Lender (a "Transferee"), subject to the other
terms of this Clause 25, provided that unless the Borrower and
--------
the Agent otherwise agree, any Transfer by a Transferor (i) in
relation to all Facilities other than a WCP Facility, must, to
the extent it has rights and/or obligations in respect of one or
more Facility, be in relation to all Facilities and any Transfer
shall be for the same proportion of the Transferor's rights and
obligations in each Facility, and (ii) in relation to a WCP
Facility must be in respect of that entire WCP Facility and that
Transferor's entire WCP Commitment thereunder.
25.2.2 A Transfer of obligations of the Lenders shall only be effective
if made in accordance with Clause 25.3 (Substitution Provisions)
or if the Transferee has, prior to the Transfer taking effect,
confirmed in writing to the Agent (acting on behalf of all the
other Lenders) and to the Borrower that it undertakes to be
bound by the terms of each of the Finance Documents binding upon
it as a Lender in form and substance satisfactory to the Agent.
On any such Transfer being made, the Transferor shall be
relieved of its obligations to the extent that they are
transferred to the Transferee.
25.3 Substitution Provisions
25.3.1 A Transferor may transfer, upon notice being given by the Agent
to the other parties hereto as provided below, all or any of its
rights and obligations under the Finance Documents to a
Transferee by means of a novation effected by the Agent
executing a Transfer Certificate which has been duly completed
and signed on behalf of both the Transferee and the Transferor.
For the avoidance of doubt, the Agent shall not be obliged to
execute a Transfer Certificate unless the identity of the
Transferee named therein is satisfactory to the Agent, and
nothing in this Clause 25.3.1 shall be deemed to authorise the
Agent to sign a Transfer Certificate which has not been signed
on behalf of a Transferee and Transferor.
25.3.2 On the later of (i) the date specified in the Transfer
Certificate as being the date on or as from which the
substitution under this Clause 25.3 is to take effect and (ii)
the date on which the Agent executes the Transfer Certificate,
the following shall occur:
(a) to the extent that in the Transfer Certificate the
Transferor seeks to transfer its rights and obligations
under the Finance Documents, the members of
<PAGE>
the ChiRex Group and the Transferor shall each be
released from further obligations to each other under
the Finance Documents (and the appropriate reduction
shall be made to the Commitment of the Transferor) and
their respective rights against each other shall be
cancelled (such rights and obligations beings referred
to in this Clause 25.3.2 as "Discharged Rights and
Obligations");
(b) the members of the ChiRex Group and the Transferee shall
each assume obligations towards each other and acquire
rights against each other which differ from the
Discharged Rights and Obligations only in so far as the
members of the ChiRex Group and such Transferee have
assumed and acquired the same in place of the members of
the ChiRex Group and the Transferor;
(c) the Agent, the Security Agent, the Arranger, the
Transferee and the other Lenders shall acquire the same
rights and assume the same obligations between
themselves as they would have acquired and assumed had
the Transferee been an original party hereto as a Lender
with the rights and obligations acquired or assumed by
it as a result of the novation; and
(d) on the date upon which such transfer takes effect, the
Transferee shall pay to the Agent for its own account a
transfer fee of GBP 500, except that no fee shall be
payable in respect of a transfer which occurs not later
than six months after the Initial Drawdown Date.
25.3.3 Nothing in this Agreement or any other Finance Document shall
oblige a Transferor or cause a Transferor to be liable:
(a) to accept a re-assignment or re-transfer from a
Transferee of any of the rights or obligations assigned,
transferred or novated pursuant to this Clause 25; or
(b) to support any losses incurred by a Transferee by reason
of the non- performance by any member of the ChiRex
Group of their obligations under any of the Finance
Documents.
25.3.4 Each of the parties hereto (other than the Transferor and the
Transferee) authorises the Agent to execute on its behalf any
Transfer Certificate which has been duly completed in accordance
with this Clause 25.3 and executed on behalf of each of the
Transferor and the Transferee.
25.3.5 The Agent shall promptly notify the other parties hereto of the
receipt and execution by it on their behalf of any Transfer
Certificate and shall supply a copy of the Transfer Certificate
to the Borrower.
25.4 Disclosure of Information
Each Lender may disclose to a proposed assignee or transferee or any
sub- participant, risk participant or other participant proposing to
enter or having entered into a contract with such Lender regarding the
Finance Documents any information in the possession of such Lender
relating to the ChiRex Group (and any member of it) as it sees fit
subject to such person agreeing in writing to be bound by the
confidentiality provisions set out in Clause 24.
<PAGE>
25.5 The Agent and the Reference Lenders
25.5.1 Changes to the Agent and the office through which the Agent acts
may be effected pursuant to Clauses 16.9 and 16.12 respectively.
25.5.2 If a Reference Lender ceases to be one of the Lenders or, if a
Reference Lender is not itself a Lender but an affiliate of a
Lender and such Lender ceases to be one of the Lenders, then:
(a) the Lender or, as the case may be, affiliate of the
Lender concerned shall cease to be a Reference Lender;
and
(b) the Agent shall in consultation with the Borrower
appoint another Lender or an affiliate of another Lender
to be a Reference Lender.
26 LENDER DECISIONS
26.1 Subject to Clauses 26.2 and 26.3, any provision of this Agreement or any
of the other Finance Documents may be amended, waived, varied or
modified with the agreement of the Majority Lenders.
26.2 The following matters shall require the unanimous agreement of all of
the Lenders:
26.2.1 any increase in any Commitment of any Lender;
26.2.2 any extension of any scheduled date for payment of any sum due,
owing or payable to any Lender;
26.2.3 any reduction in the amount, or change in currency, of any
payment of principal, interest, fees or commissions or other
amounts payable hereunder by any party;
26.2.4 any amendment, variation or modification of this Clause 26,
Clause 19 (Pro Rata Payments), Clause 20 (Set-off), Clause 25.1
(Assignment by the Borrower, Etc.) or to the definition of
Majority Lenders;
26.2.5 any matter which, by the terms of this Agreement as at the date
hereof, is stated to be subject to the consent of all Lenders;
26.3 Any amendment, waiver, variation or modification of Clause 16 (The Agent
and the other Finance Parties) may not be effected without the agreement
of the Agent (giving effect to Clause 16.1.4).
26.4 Subject to any provision of the Finance Documents entitling or obliging
the Agent or the Security Agent to grant releases or permit any disposal
to take place, any question which relates to the release or material
variation of any security held by the Security Agent shall require the
agreement of the Majority Lenders, failing which no such release or
variation may be effected.
27 INDEMNITIES
27.1 General Indemnity and Breakage Costs
The Borrower will fully indemnify each of the Finance Parties, and their
respective officers, employees, subsidiaries and affiliates
(collectively the "Finance Indemnities") from and against any expense,
loss, damage or liability (including without limitation any arising from
any actual or alleged breach of any Environmental Laws) which any of the
Finance
<PAGE>
Indemnities may incur as a consequence of or in connection with (i) the
provision and/or Syndication of the Facilities or the use of proceeds
thereof (including the distribution of the Information Memorandum), or
(ii) the execution, delivery or performance of any of the Finance
Documents, other than, in the case of a Finance Indemnity, any such
expense, loss, damage or liability which is finally determined by a
court having jurisdiction (the determination not being subject to
appeal) to have resulted principally from the negligence or wilful
misconduct of such Finance Indemnity or which is otherwise reimbursed by
a member of the ChiRex Group under the Finance Documents. The Borrower
will further fully indemnify each of the Finance Parties from and
against any expense, loss, damage or liability which they may incur as a
consequence of any failure to pay any sum due pursuant to the Finance
Documents when due, or any failure to borrow when obliged to do so in
accordance with this Agreement (including without limitation failure to
satisfy any conditions precedent to such borrowing) or repaying an
Advance otherwise than on the last day of an Interest Period or
otherwise in connection with a breach by ChiRex Inc. or any member of
the ChiRex Group of this Agreement or of any Finance Document, except
where it is otherwise reimbursed by a member of the ChiRex Group under
the Finance Documents. Without prejudice to its generality, the
indemnity in the preceding sentence extends to any interest, fees or
other sums whatsoever paid or payable on account of any funds borrowed
in order to carry any amount which a member of the ChiRex Group fails to
pay in breach of this Agreement and to any loss (including loss of
profit), premium, penalty or expenses which may be incurred in
liquidating or employing deposits from third parties acquired to make,
maintain or fund outstanding Advances or any other amount due or to
become due under this Agreement.
27.2 Currency Indemnity
Without prejudice to Clause 27.1, if:
27.2.1 any amount payable by any Obligor under or in connection with
any Finance Document is received by any Finance Party in a
currency (the "Payment Currency") other than that agreed in the
relevant Finance Document (the "Agreed Currency"), whether as a
result of any judgement, decree or order or the enforcement
thereof, the liquidation of that member or otherwise; and
27.2.2 the amount produced by converting the Payment Currency so
received into the Agreed Currency is less than the relevant
amount of the Agreed Currency;
then the relevant Obligor shall, as an independent obligation,
indemnify the relevant Finance Party for the deficiency and any
loss sustained as a result. Such conversion shall be made at
such prevailing rate of exchange, on such date and in such
market as is determined by the relevant Finance Party as being
most appropriate for the conversion. The relevant Obligor shall
in addition pay the costs of the conversion as an independent
and joint and several obligation.
27.3 Waiver
Each Obligor waives any right it may have in any jurisdiction to pay any
amount under any Finance Document in a currency other than that in which
it is expressed to be payable in the relevant Finance Document.
<PAGE>
28 CERTIFICATES CONCLUSIVE
A certificate, determination, notification or opinion of a Finance
Party, the Majority Lenders or any Lender provided for in any Finance
Document shall be conclusive save in the case of manifest error.
29 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of England.
30 JURISDICTION
30.1 Submission
For the benefit of each Finance Party, each Obligor agrees that the
courts of England shall have jurisdiction to settle any disputes in
connection with any Finance Documents and accordingly submits to the
jurisdiction of the English courts.
30.2 Service of Process
Without prejudice to any other mode of service, each Obligor:
(a) irrevocably appoints the Borrower as its agent for service of
process relating to any proceedings before the English courts in
connection with any Finance Document;
(b) agrees that failure by a process agent to notify it of the
process will not invalidate the proceedings concerned; and
(c) (without prejudice to other forms of service permitted by law)
consents to the service of process relating to any such
proceedings by prepaid posting of a copy of the process to its
address for notices to it from time to time under Clause 21
(Notices).
(d) The Borrower irrevocably accepts its appointment as agent for
service of process under the Finance Documents as set forth in
sub-clause (a).
30.3 Forum Convenience and Enforcement Abroad
Each Obligor:
(a) waives objection to the English courts on grounds of
inconvenient forum or otherwise as regards proceedings in
connection with a Finance Document; and
(b) agrees that a judgement, decree or order of an English court or
other court in connection with a Finance Document is (subject to
rights of appeal before the English courts or such other courts)
conclusive and binding on it and may be enforced against it in
the courts of any other jurisdiction.
30.4 Non-Exclusivity
Nothing in this Clause 30 limits the right of a Finance Party to bring
proceedings against any Obligor in connection with any Finance Document:
(a) in any other court of competent jurisdiction; or
(b) concurrently in more than one jurisdiction.
<PAGE>
31 COUNTERPARTS
This Agreement may be executed in any number of counterparts and all of
such counterparts taken together shall be deemed to constitute one and
the same instrument.
<PAGE>
CHIREX (HOLDINGS) LIMITED, in its capacity as the Borrower
By:
Print Name.
Title:
CHIREX INC., in its capacity as a Guarantor
By:
Print Name:
Title:
CHIREX TECHNOLOGY CENTER INC., in its capacity as a Guarantor
By:
Print Name:
Title:
CHIREX AMERICA INC., in its capacity as a Guarantor
By:
Print Name:
Title:
CHIREX (DUDLEY) LIMITED, in its capacity as a WCP Borrower and a Guarantor
By:
Print Name:
Title:
CHIREX (ANNAN) LIMITED, in its capacity as a WCP Borrower and a Guarantor
By:
Print Name:
Title:
<PAGE>
NATIONAL WESTMINSTER BANK PLC, in its capacity as Arranger
By:
Print Name:
Title:
NATIONAL WESTMINSTER BANK PLC, in its capacity as Agent
By:
Print Name:
Title:
BANKERS TRUST COMPANY, in its capacity as Security Agent
By:
Print Name:
Title:
DEUTSCHE BANK A.G., in its capacity as a Lender
By:
Print Name:
Title
NATIONAL WESTMINSTER BANK PLC, in its capacity as a Lender
By:
Print Name:
Title
<PAGE>
HSBC BANK PLC, in its capacity as a Lender
By:
Print Name:
Title
BANQUE ET CAISSE D'EPARGNE DE L'ETAT, in its capacity as a Lender
By:
Print Name:
Title
<PAGE>
Schedule 1
Commitments and Lending Offices
(1) Tranche A Term Commitments
<TABLE>
<CAPTION>
Names and Addresses of Lenders Commitment
GBP
<S> <C>
DEUTSCHE BANK A.G. 5,073,000
Winchester House
1 Great Winchester Street
London
EC2N 2BD
Attn: Barry Jefferies
Tel: 44 171 933 2073
HSBC BANK PLC 9,981,000
27 Poultry
London
EC2P 2BX
Attn: Derek Saunders
Tel: 44 171 260 6520
NATIONAL WESTMINSTER BANK PLC 12,765,000
North East Corporate Business Centre
PO Box 1AP
First Floor
93a Grey Street
Newcastle Upon Tyne
NE99 1AP
Attn: Roger Wrigley
Tel: 44 191 211 2002
BANQUE ET CAISSE D'EPARGNE DE L'ETAT 2,181,000
1 Place de Metz,
L-2954
Luxembourg
Attn: Alain Schadeck
Tel: 352 4015 4338
Total 30,000,000
</TABLE>
<PAGE>
(2) Tranche B Multicurrency Revolving Commitments
<TABLE>
<CAPTION>
Names and Addresses of Lenders Commitment
GBP
<S> <C>
DEUTSCHE BANK A.G. 4,227,500
Winchester House
1 Great Winchester Street
London
EC2N 2BD
Attn: Barry Jefferies
Tel: 44 171 933 2073
HSBC BANK PLC 8,317,500
27 Poultry
London
EC2P 2BX
Attn: Derek Saunders
Tel: 44 171 260 6520
NATIONAL WESTMINSTER BANK PLC 10,637,500
North East Corporate Business Centre
PO Box 1AP
First Floor
93a Grey Street
Newcastle Upon Tyne
NE99 1AP
Attn: Roger Wrigley
Tel: 44 191 211 2002
BANQUE ET CAISSE D'EPARGNE DE L'ETAT 1,817,500
1 Place de Metz,
L-2954
Luxembourg
Attn: Alain Schadeck
Tel: 352 4015 4338
Total 25,000,000
</TABLE>
<PAGE>
Schedule 2
Repayment Schedule
--------------------------------------------------------------
Repayment Date Amount
--------------------------------------------------------------
31 March 2000 1,500,000
--------------------------------------------------------------
30 June 2000 1,500,000
--------------------------------------------------------------
30 September 2000 1,500,000
--------------------------------------------------------------
31 December 2000 1,500,000
--------------------------------------------------------------
31 March 2001 1,500,000
--------------------------------------------------------------
30 June 2001 1,500,000
--------------------------------------------------------------
30 September 2001 1,500,000
--------------------------------------------------------------
31 December 2001 1,500,000
--------------------------------------------------------------
31 March 2002 1,500,000
--------------------------------------------------------------
30 June 2002 1,500,000
--------------------------------------------------------------
30 September 2002 1,500,000
--------------------------------------------------------------
31 December 2002 1,500,000
--------------------------------------------------------------
31 March 2003 1,500,000
--------------------------------------------------------------
30 June 2003 1,500,000
--------------------------------------------------------------
30 September 2003 1,500,000
--------------------------------------------------------------
31 December 2003 1,500,000
--------------------------------------------------------------
31 March 2004 1,500,000
--------------------------------------------------------------
30 June 2004 1,500,000
--------------------------------------------------------------
30 September 2004 1,500,000
--------------------------------------------------------------
31 December 2004 1,500,000
--------------------------------------------------------------
(Pounds)30,000,000
--------------------------------------------------------------
<PAGE>
Schedule 3
Form of Drawdown Request
To: [Insert details of Agent's administrations department]
Attn: [ ]
GBP 55,000,000 facilities agreement dated 30 October 1997
- ----------------------------------------------------------
We refer to the above agreement between, inter alia, ourselves, the Arrangers,
the Lenders described therein and yourselves as Agent (as heretofore amended,
the "Facilities Agreement", which expression includes any amendments or
supplements thereto or restatements thereof). Terms defined in the Facilities
Agreement have the same meaning in this notice.
Pursuant to Clause 5.1 of the Facilities Agreement, we hereby give you notice of
the following proposed drawing of an Advance under the [Tranche A Term Facility]
[Tranche B Multicurrency Revolving Facility]:
(a) Proposed Drawdown Date (a Business Day):
(b) Currency [GBP only if Tranche A Facility; euro, USD, DEM, FF LIT, CHF, Yen
and GBP if Tranche B Facility]:
(c) Amount:
(d) Duration of first Interest Period:
(e) Payment instructions:
(f) Purpose:
We confirm that no Event of Default or Potential Event of Default has occurred
and is continuing unremedied or unwaived or will occur as a result of making
this Advance and that each of the representations and warranties required to be
made in accordance with Clause 12 of the Facilities Agreement is true and
accurate on the date hereof.
Dated: _____________________________
[BORROWER]
By: ________________________________
Its: _______________________________
<PAGE>
Notes
- ------
(1) No more than fifteen separate Tranche B Revolving Advances may be
outstanding at any one time.
(2) Currencies other than euro,USD, DEM, FF, LIT, CHF, Yen and GBP may not be
requested unless the Agent has confirmed in writing to the Borrower that
such other currency is freely available to all the Lenders and is one in
which dealings regularly occur in the London interbank market.
(3) These notes are included for convenience only and are to be ignored in
construing the Facilities Agreement.
<PAGE>
Schedule 4
Structure of ChiRex Group
ChiRex Inc.
(U.S.)
|
100% | 100%
|
--------------------|-------------------------------------------
| | |
ChiRex America ChiRex (Holdings) ChiRex Technology
Inc. Limited Center Inc
(U.S.) (England) (U.S.)
|
100% | 100%
|
---------------------------------------
| |
ChiRex (Annan) ChiRex (Dudley)
Limited Limited
(England) (England)
<PAGE>
Schedule 5
Calculation of the Mandatory Costs
(1) The Mandatory Cost is an addition to the interest rate to compensate
Lenders for the cost of compliance with (a) the requirements of the Bank of
England and/or the Financial Services Authority (or, in either case, any
other authority which replaces all or any of its functions) or (b) the
requirements of the European Central Bank.
(2) On the first day of each Interest Period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, a rate (the
"Additional Cost Rate") for each Lender, in accordance with the paragraphs
set out below. The Mandatory Cost will be calculated by the Agent as a
weighted average of the Lenders' Additional Cost Rates (weighted in
proportion to the percentage participation of each Lender in the relevant
Loan) and will be expressed as a percentage rate per annum.
(3) The Additional Cost Rate for any Lender lending from a Facility Office in a
Participating Member State will be the percentage notified by that Lender
to the Agent as the cost of complying with the minimum reserve requirements
of the European Central Bank.
(4) The Additional Cost Rate for any Lender lending from a Facility Office in
the United Kingdom will be calculated by the Agent as follows:
(a) in relation to a sterling Loan:
AB + C(B - D) + E * 0.01
------------------------ per cent. per annum
100 - (A + C)
(b) in relation to a Loan in any currency other than sterling:
E * 0.01
-------- per cent. per annum.
300
Where:
<TABLE>
<S> <C>
A is the percentage of Eligible Liabilities (assuming these to be in excess
of any stated minimum) which that Lender is from time to time required to
maintain as an interest free cash ratio deposit with the Bank of England
to comply with cash ratio requirements
B is the percentage rate of interest (excluding the Margin and the
Mandatory Cost) payable for the relevant Interest Period on the Loan.
C is the percentage (if any) of Eligible Liabilities which that Lender is
required from time to time to maintain as interest bearing Special
Deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of England to the
Agent on interest bearing Special Deposits.
E is the rate of charge payable by that Lender to the Financial Services
Authority
</TABLE>
<PAGE>
pursuant to the Fees Regulations (but, for this purpose,
ignoring any minimum fee required pursuant to the Fees
Regulations) and expressed in pounds per (Pounds)1,000,000 of
the Fee Base of that Lender.
(5) For the purposes of this Schedule:
(a) "Eligible Liabilities" and "Special Deposits" have the meanings given
to them from time to time under or pursuant to the Bank of England Act
1998 or (as may be appropriate) by the Bank of England;
(b) "Fees Regulations" means the Banking Supervision (Fees) Regulations
1999 or such other law or regulation as may be in force from time to
time in respect of the payment of fees for banking supervision; and
(c) "Fee Base" has the meaning given to it in, and will be calculated in
accordance with, the Fees Regulations.
(6) In application of the above formulae, A, B, C and D will be included in the
formulae as percentages (i.e. 5 per cent. will be included in the formula
as 5 and not as 0.05). A negative result obtained by subtracting D from B
shall be taken as zero. The resulting figures shall be rounded to four
decimal places.
(7) Each Lender shall supply any information required by the Agent for the
purpose of calculating its Additional Cost Rate. In particular, but
without limitation, each Lender shall supply the following information in
writing on or prior to the date on which it becomes a Lender:
(a) its jurisdiction of incorporation and the jurisdiction of its Facility
Office; and
(b) any other information that the Agent may reasonably require for such
purpose.
Each Lender shall promptly notify the Agent in writing of any change to the
information provided by it pursuant to this paragraph.
(8) The percentages or rates of charge of each Lender for the purpose of A, C
and E above shall be determined by the Agent based upon the information
supplied to it pursuant to paragraph 7 above and on the assumption that,
unless a Lender notifies the Agent to the contrary, each Lender's
obligations in relation to cash ratio deposits, Special Deposits and the
Fees Regulations are the same as those of a typical bank from its
jurisdiction of incorporation with a Facility Office in the same
jurisdiction as its Facility Office.
(9) The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Lender and shall be entitled to assume that the information provided by any
Lender pursuant to paragraphs 3 and 7 above is true and correct in all
respects.
(10) The Agent shall distribute the additional amounts received as a result of
the Mandatory Cost to the Lenders on the basis of the Additional Cost Rate
for each Lender based on the information provided by each Lender pursuant
to paragraphs 3 and 7 above.
(11) Any determination by the Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable
to a Lender shall, in the absence of manifest error, be conclusive and
binding on all Parties.
<PAGE>
(12) The Agent may from time to time, after consultation with the Company and
the Lenders, determine and notify to all Parties any amendments which are
required to be made to this Schedule in order to comply with any change in
law, regulation or any requirements from time to time imposed by the Bank
of England, the Financial Services Authority or the European Central Bank
(or, in any case, any other authority which replaces all or any of its
functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all Parties.
<PAGE>
Schedule 6
Form of Deed of Accession
This Deed is made this [ ] day of [ ], by [ ], as Guarantor, IN FAVOUR
OF:
(1) CHIREX (HOLDINGS) LIMITED (the "Borrower")
(2) NATIONAL WESTMINSTER BANK PLC as Arranger (the "Arranger");
(3) NATIONAL WESTMINSTER BANK PLC, as Agent (the "Agent");
(4) BANKERS TRUST COMPANY, as Security Agent;
(5) THE LENDERS PARTY TO THE FACILITIES AGREEMENT DESCRIBED BELOW; and
(6) THE OBLIGORS PARTY TO THE FACILITIES AGREEMENT DESCRIBED BELOW.
Whereas:
(A) This Deed is supplemental to a facilities agreement (the "Facilities
Agreement", which expression includes any amendments or supplements thereto
or restatements thereof) dated 30 October 1997 made among the parties
referred to in paragraphs (1) to (6) above.
(B) [insert name of party] wishes to accede to the Facilities Agreement as a
Guarantor.
Now this Deed witnesseth AS FOLLOWS:
(1) Words and expressions defined in the Facilities Agreement shall have the
same meanings when used herein.
(2) [insert name of Guarantor] hereby:
(a) agrees to be bound by all the terms and conditions of the Facilities
Agreement insofar as they relate to a Guarantor (including without
limitation Clause 15 (Guarantee) and Clause 30 (Jurisdiction) of the
Facilities Agreement) as if it were a party to the Facilities
Agreement in such capacity; and
(b) represents and warrants to the Agent and the other Finance Parties in
the terms of the Facilities Agreement
(3) The undersigned Guarantor agrees to be bound by all the terms and
conditions of the Facilities Agreement insofar as they relate to an Obligor
as if it were a party to the Facilities Agreement in such capacity.
(4) [The foregoing notwithstanding, the obligations of the undersigned
Guarantors under the foregoing shall be limited as follows:
[limitations to guarantees, if not already in Facilities Agreement, to the
extent required by applicable law]
(5) The undersigned Guarantor confirms that its address for the purposes of
Clause 21 (Notices) of the Facilities Agreement is set out under its name
as follows:
[Name]
[Address]
<PAGE>
Attention: [ ]
Facsimile: [ ]
(6) Each of the undersigned hereby agrees that [insert name of Guarantor]
shall, from the date of the later of (i) the execution by Agent of this
Deed and (ii) the execution by Borrower of this Deed, accede to the
Facilities Agreement as if it were a Guarantor and an Obligor named therein
and a party thereto.
(7) This Deed may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument.
(8) This Deed shall be governed by and construed in accordance with the laws of
England.
In witness whereof the undersigned have caused this Deed to be duly executed and
delivered the day and year first above written.
EXECUTED and DELIVERED as a deed for ]
and on behalf of ]
[ ] ]
by ]
in the presence of:
EXECUTED and DELIVERED as a deed for ]
and on behalf of ]
[ ] ]
as Borrower ]
by [ ]
in the presence of:
SIGNED by
for and on behalf of
NATIONAL WESTMINSTER BANK PLC,
as Agent
.............................
Date:
<PAGE>
Schedule 7
Form of Transfer Certificate
[Note: the Transferor and Transferee should ensure that all regulatory
requirements (in particular compliance with the Financial Services Act of 1986
and any regulations made thereunder) are satisfied in connection with their
entry into of their Transfer Certificate.]
TRANSFER CERTIFICATE
To: [name of Agent] for and on behalf of the Borrower, the other Obligors,
the Lenders and the other Finance Parties (each as defined in the
Facility Agreement referred to below).
From: [insert name of Transferor (the "Transferor")
[insert name of Transferee] (the "Transferee")
This transfer certificate (this "Certificate") relates to a Facilities Agreement
dated [ ], and made among Bankers Trust Company, as Agent and the Lenders and
Arranger, described therein (the "Facilities Agreement", which expression
includes any amendments or supplements thereto or restatements thereof). Terms
defined in the Facilities Agreement shall, unless otherwise defined in this
Certificate, have the same meanings when used in this Certificate.
(1) The Transferor by its execution of this Certificate:
(a) confirms that the details which appear in column II of the First
Schedule of this Certificate accurately state, respectively, the
amount of the Transferor's Commitment and the Transferor's
participation in Advances as at the date of this Certificate;
(b) requests the Transferee to accept and procure, in accordance with
Clause [24.3] of the Facilities Agreement, transfer to the Transferee
of the portion of the Transferor's participation in the Facility
specified in column Ill of the First Schedule of this Certificate by
counter signing this Certificate and delivering it to the Agent at its
address for the giving of notices under the Facility Agreement so as
to take effect on the date specified in the Second Schedule of this
Certificate (the "Transfer Date").
(2) The Transferee by its execution of this Certificate requests the Obligors,
the Lenders, the Agent and the other Finance Parties to accept this
Certificate as being delivered under and for the purposes of Clause [25.3]
of the Facilities Agreement so as to take effect in accordance with the
terms of that Clause on the Transfer Date.
(3) The Transferee undertakes to pay to the Agent for the Agent's own account a
transfer fee of [USD] as provided in Clause [25.3.2(d)] of the Facility
Agreement.
(4) The Transferee hereby:
(a) confirms that it has received from the Transferor a copy of the
Facilities Agreement together with such other documents and
information as it has requested in connection with this transaction;
(b) confirms that it has not relied, and will not hereafter rely, on the
Transferor or any other Finance Party to the Facilities Agreement or
any of the other Finance Documents to check or enquire on its behalf
into the legality, validity, effectiveness, adequacy, accuracy or
completeness of any such documents or information;
<PAGE>
(c) agrees that it has not relied, and will not hereafter rely, on the
Transferor or any other Finance Party to the Facilities Agreement or
any of the other Finance Documents to assess or keep under review on
its behalf the financial condition, creditworthiness, condition,
affairs, status or nature of the Borrower, the other Obligors or any
other party to the Facilities Agreement or the other Finance
Documents; and
(d) represents and warrants to the Transferor and all other parties to the
Facilities Agreement that it (i) has power to become a party to the
Facilities Agreement as a "Lender" on the terms herein and therein set
out, and (ii) has taken all necessary steps to authorise execution and
delivery of this Certificate.
(5) Neither the Transferor nor any other Finance Party to the Facilities
Agreement makes any representation or warranty nor assumes any
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Finance Documents and assumes no
responsibility for the financial condition of the Borrower, the other
Obligors or any other party to the Finance Documents or for the performance
and observance by the Borrower or any other Obligor of any of its
obligations under the Finance Documents and any and all such
representations and warranties and responsibility, whether express or
implied by law or otherwise, are hereby excluded.
(6) On execution of this Certificate by the Agent for itself and on behalf of
the Obligors, the Lenders (other than the Transferor) and the other Finance
Parties, each of them accepts the Transferee on and with effect from the
Transfer Date as a party in substitution for the Transferor with respect to
all those rights and obligations which by the terms of the Facilities
Agreement, the other Finance Documents and this Certificate are assumed by
the Transferor.
(7) By its execution hereof, the Transferee confirms the appointment of [insert
name of Agent] to act as its agent under and in connection with the Finance
Documents and irrevocably authorises the Agent and for and on its behalf to
exercise such rights, powers and discretions as are delegated to it by the
terms of the Finance Documents, together with all such rights, powers and
discretions as are incidental thereto, and to give a good discharge for any
moneys payable under the Finance Documents.
(8) This Certificate and the rights and obligations of the parties hereto shall
be governed by and construed in accordance with English law.
As witness the hands of authorised signatories for and on behalf of the
Transferor, the Transferee and the Agent on the respective dates appearing
below.
<PAGE>
First Schedule to the Transfer Certificate
I II III
- -- ---
Facility Details Transferor Position Position to be
---------------- ------------------- --------------
to Transferee Prior to Transfer Transferred
------------- ----------------- -----------
[ ] [ ] [ ]
---- ---- ----
[ ] [ ] [ ]
---- ---- ----
[ ] [ ] [ ]
---- ---- ----
[ ] [ ] [ ]
---- ---- ----
<PAGE>
Second Schedule to the Transfer Certificate
Particulars relating to the Transferee
- --------------------------------------
Transfer Date :
Lending Office :
Contact Name :
Account for Payments :
Telephone :
Facsimile :
[Transferor] [Transferee]
By: .................... By: ..................
Date: [ ] Date: [ ]
[Agent]
By: ....................
<PAGE>
Schedule 8
Continuing Indebtedness
None
<PAGE>
TABLE OF CONTENTS
Contents Page
1 INTERPRETATION................................... 1
2 THE FACILITIES................................... 24
3 PARTICIPATION OF LENDERS......................... 25
4 CONDITIONS PRECEDENT............................. 29
5 DRAWDOWN PROCEDURES AND LENDERS' PARTICIPATIONS.. 31
6 REPAYMENT OF ADVANCES............................ 33
7 PREPAYMENT AND CANCELLATION...................... 35
8 INTEREST......................................... 37
9 PAYMENTS......................................... 40
10 CHANGE IN CIRCUMSTANCES.......................... 43
11 FEES, EXPENSES AND STAMP DUTIES.................. 46
12 REPRESENTATIONS AND WARRANTIES................... 47
13 UNDERTAKINGS..................................... 54
14 EVENTS OF DEFAULT................................ 71
15 GUARANTEE........................................ 76
16 THE AGENT AND THE OTHER FINANCE PARTIES.......... 79
17 EVIDENCE OF INDEBTEDNESS......................... 86
18 APPLICATION OF MONEYS............................ 86
19 PRO RATA PAYMENTS................................ 86
20 SET-OFF.......................................... 87
21 NOTICES.......................................... 87
22 NO IMPLIED WAIVERS............................... 88
23 INVALIDITY OF ANY PROVISION...................... 88
<PAGE>
24 CONFIDENTIALITY.................................. 88
25 CHANGES TO PARTIES............................... 89
26 LENDER DECISIONS................................. 91
27 INDEMNITIES...................................... 91
28 CERTIFICATES CONCLUSIVE.......................... 93
29 GOVERNING LAW.................................... 93
30 JURISDICTION..................................... 93
31 COUNTERPARTS..................................... 94
Schedule 1 Commitments and Lending Offices.............. 98
Schedule 2 Repayment Schedule........................... 100
Schedule 3 Form of Drawdown Request..................... 101
Schedule 4 Structure of ChiRex Group.................... 103
Schedule 5 Calculation of the Mandatory Costs............ 104
Schedule 6 Form of Deed of Accession..................... 107
Schedule 7 Form of Transfer Certificate.................. 109
First Schedule to the Transfer Certificate............... 111
Second Schedule to the Transfer Certificate.............. 112
<PAGE>
Exhibit 10.9
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of February 1,
1999, between CHIREX INC., a Delaware corporation (the "Company"), and STUART E.
-------
NEEDLEMAN ("Executive").
---------
RECITALS
--------
The Company wishes to hire Executive as its Vice President, Business
Development. The parties hereto desire to set forth in writing the terms of the
Executive's employment relationship with the Company.
In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Employment.
----------
(a) The Company hereby agrees to hire Executive to render full time
and exclusive services to the Company as its Vice President, Business
Development, and to perform such other duties commensurate with such office as
Executive shall reasonably be directed by the senior management and/or Board of
Directors of the Company, for the period specified in Section 2.
(b) Executive hereby accepts such employment and agrees to render the
services described above to the best of Executive's abilities in a diligent,
trustworthy, businesslike and efficient manner. Executive further agrees to
accept election and to serve during all or any part of the term of this
Agreement as an officer or director of the Company and of any subsidiary or
affiliate of the Company, without any compensation therefor, other than that
specified in this Agreement or as otherwise determined by the Board of Directors
of the Company or of any subsidiary or affiliate, as the case may be.
2. Term of Employment.
------------------
The Employment Period of Executive by the Company shall commence on
the date hereof and end on December 31, 2000 (the "Initial Term") unless further
extended or sooner terminated as hereinafter provided. Executive may terminate
his employment during the Initial Term with six months written notice to the
Company. Commencing on January 1, 2001, and each January 1 thereafter, the term
of Executive's employment shall automatically be extended
1
<PAGE>
for one additional year to, respectively, January 1, 2001 and each January 1
thereafter, unless, not later than six months prior to the end of any renewal
term, either party hereunder shall have given notice to the other party that it
does not wish to extend this Agreement. If the Company gives Executive notice
that it does not wish to extend this Agreement during the Initial Term or any
renewal term, Executive shall be entitled to the severance payments provided in
Section 4(d) hereof. As used herein, the term "Employment Period" shall refer to
the Initial Term and any renewal term of Executive's employment with the
Company.
3. Base Salary and Benefits.
------------------------
(a) During the Employment Period, Executive's base salary shall be
$155,000 per annum or such higher rate as the Company may designate from time to
time (the "Base Salary"), which salary shall be payable in regular installments
-----------
in accordance with the Company's general payroll practices and shall be subject
to customary withholding. In addition, during the Employment Period, Executive
shall be entitled to participate in all of the Company's employee benefit
programs for which senior executive employees of the Company and its
subsidiaries are generally eligible.
(b) The Company shall reimburse Executive for all reasonable expenses
incurred by Executive in the course of performing Executive's duties under this
Agreement which are consistent with the Company's policies in effect from time
to time with respect to travel, entertainment and other business expenses,
subject to the Company's requirements with respect to reporting and
documentation of such expenses.
(c) In addition to the Base Salary, Executive shall be eligible to
participate in the Company's bonus program, as such program may be established
and/or amended from time to time by the Board of Directors of the Company.
(d) Executive may be awarded, from time to time, additional
compensation (such as stock options, stock appreciation rights, performance
shares, restricted stock or unrestricted stock) pursuant to the Company's 1997
Stock Incentive Plan or any additional or replacement incentive compensation
program established for the key employees of the Company. Any awards under such
programs shall be at such levels or in such amounts as the Board of Directors
deems, in its sole discretion, appropriate for the position occupied by
Executive and his performance therein. Subject to Section 4 herein, the terms,
conditions and rights with respect to any such grants will be subject to the
actual provisions and conditions applicable to such plans.
4. Termination and Change of Control
---------------------------------
(a) If the Executive shall die during the Employment Period, this
Agreement shall terminate, except that (i) Executive's surviving spouse or, if
none, his estate, shall be entitled to receive Executive's compensation
(including bonus) to the last day of the third
2
<PAGE>
calendar month following the date of his death; and (ii) such termination shall
not affect any rights which Executive may have at the time of his death pursuant
to any insurance or other death benefit, retirement, stock option or other plans
or arrangements of the Company or of any subsidiary or affiliate of the Company,
which rights shall continue to be governed by the provisions of such plans and
arrangements.
(b) At the sole discretion of the Board of Directors, Executive may be
terminated if the Executive is disabled (as defined below) and shall have been
absent from his duties with the Company on a full time basis for one hundred and
eighty (180) consecutive days, and, within thirty (30) days after written notice
by the Company to do so, the Executive shall not have returned to the
performance of his duties hereunder on a full time basis. In the event of such
termination, the Company shall make to Executive the payments specified in
Section 4(d). As used herein, the term "disabled" shall (i) mean that Executive
--------
is unable, as a result of a medically determinable physical or mental
impairment, to perform the duties and services of his position, or (ii) have the
meaning specified in any disability insurance policy maintained by the Company,
whichever is more favorable to the Executive.
(c) The Company may, by notice to Executive, terminate Executive's
employment hereunder for cause. As used herein, "cause" shall mean (i) the
-----
conviction of Executive of a felony or conviction of a misdemeanor if such
misdemeanor involves moral turpitude; or (ii) Executive's voluntary engagement
in conduct constituting larceny, embezzlement, conversion or any other act
involving the misappropriation of Company funds in the course of his employment;
or (iii) the willful refusal to carry out specific directions of the Board of
Directors, which directions shall be consistent with the provisions hereof; or
(iv) Executive's committing any act of gross negligence or intentional
misconduct in the performance or non-performance of his duties as an employee of
the Company; or (v) any material breach by the Executive of any material
provision of this Agreement (other than for reasons related only to the business
performance of the Company or business results achieved by Executive). For
purposes of this Section 4(c), no act or failure to act on Executive's part
shall be considered to be reason for termination for cause if done, or omitted
to be done, by Executive in good faith and with the reasonable belief that the
action or omission was in the best interests of the Company.
(d) Executive's employment may be terminated at any time by the
Company without cause; provided, however, that in such event Executive shall be
entitled to receive (so long as Executive executes and delivers the Company's
standard form of release) 100% of Executive's then effective annual Base Salary
for the remaining term of the then current Employment Period. The foregoing
amounts shall be payable in one lump sum payment within five (5) days after
Executive's last day of active employment. In addition, Executive shall be
entitled to continue participation in the Company's health and other welfare
benefit plans for a period of up to one year or until Executive is covered by a
successor employer's benefit plans, whichever is sooner.
3
<PAGE>
(e) If (i) Executive's employment is terminated pursuant to subsections
(a), (b), (d), (e) or (g) of this Section 4, or (ii) a "Change in Control" of
the Company (as defined in Section 4(f) below) occurs; in either case, all stock
options, restricted stock, deferred compensation and similar benefits which have
not yet become vested on the date of termination or the date of a Change in
Control, as the case shall be, will become vested upon such event, and Executive
shall be permitted to exercise all such rights in accordance with the
administrative provisions of those plans, and in the case of a Change of
Control, whether or not Executive remains employed with the Company or
terminates his employment in accordance with this subsection (e). If a Change in
Control event involves a tender offer for all or part of the Company's shares,
the vesting date for stock options and restricted stock pursuant to this
subsection (e) shall be a date which permits Executive to participate in such
tender offer with such stock options or restricted shares. In addition, if a
Change in Control occurs, Executive may, after such Change in Control, terminate
his employment with the Company for any reason after the expiry of ninety (90)
days immediately following the effective date of such Change in Control, in
which event Executive shall be entitled to the payments specified in Section
4(d) above and to the other rights described elsewhere in this Agreement.
(f) For purposes of this Agreement, a "Change in Control" of the Company
-----------------
shall be deemed to have occurred if: (i) any person (as such term is used in
Sections 13(d) and 14(d)(2) of the Securities and Exchange Act of 1934) becomes
the beneficial owner, directly or indirectly, of Company securities representing
30% or more of the capital stock of the Company; or (ii) individuals who
constitute the Company's Board of Directors as of the date of this Agreement
(the "Incumbent Board") cease for any reason to constitute at least a majority
thereof, provided, however, that any person becoming a director subsequent to
the date of this Agreement whose election, or nomination for election by the
Company's stockholders, was approved by a vote of at least 51% of the directors
comprising the Incumbent Board (either by a specific vote or by approval of the
--------- -----
proxy statement of the Company in which such person is named as a nominee for
director, without objection to such nomination) shall be, for the purpose of
this clause (ii), considered as though such person were a member of the
Incumbent Board; or (iii) the Company's shareholders approve a merger or
consolidation (where in either case the Company is not the survivor thereof) in
which shareholders of the Company cease to own at least 80% of the surviving
entity's voting power, or a sale or disposition of all or substantially all of
the Company's assets or a plan of partial or complete liquidation of the
Company.
(g) Executive's employment may be terminated by the Executive for Good
Reason. For purposes of this Agreement, "Good Reason" shall mean: (i) the
assignment to Executive of any duties inconsistent in any respect with
Executive's position (including status, offices, titles, and reporting
requirements), authority, duties or responsibilities as contemplated by Section
1(a) hereof, or any other action by the Company which results in a diminution in
such position, authority, duties or responsibilities, excluding for this purpose
an isolated, insubstantial and inadvertent action not taken in bad faith and
which is remedied by the Company promptly after receipt of notice thereof given
by Executive; (ii) any failure by the Company to comply
4
<PAGE>
with any of the provisions of Section 3 hereof, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by
Executive; (iii) the Company's requiring Executive to be based at any office or
location other than in Connecticut; (iv) any purported termination by the
Company of Executive's employment otherwise than as expressly permitted by this
Agreement; or (v) any failure by the Company to obtain an express assumption of
this Agreement by a successor as required pursuant to Section 14 hereof. For
purposes of this Section 4(g), any good faith determination of "Good Reason"
made by Executive shall be conclusive. Upon any termination pursuant to this
subsection (g), Executive shall be entitled to the payment specified in Section
4(d) hereof and to the other rights described therein (subject to his compliance
therewith).
(h) Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined that any payment or distribution by the Company to
or for the benefit of Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this
subsection (h) (a "Payment") would be subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or
any interest or penalties are incurred by Executive with respect to such excise
tax (such excise tax, together with any such interest and penalties are
hereinafter collectively referred to as the "Excise Tax"), the Company shall pay
to Executive at the time specified in subparagraph (k) below an additional
amount (a "Gross-Up Payment") such that the net amount retained by Executive,
after deduction of any Excise Tax on a Payment and any federal (and state and
local) income tax (and any interest and penalties imposed with respect thereto),
employment tax and Excise Tax on a Payment, shall be equal to the amount of all
the Payments.
(i) For purposes of the foregoing subparagraph (h), the proper amounts, if
any, of the Excise Tax and the Gross-Up Payment shall be determined in the first
instance by the Company. Such determination by the Company shall be communicated
in writing by the Company to Executive at least fourteen (14) days prior to the
occurrence of a Change of Control. Within ten (10) days of being provided with
written notice of any such determination, Executive may provide written notice
to the Chairperson of the Compensation Committee of the Board of Directors of
the Company of any disagreement, in which event the amounts, if any, of the
Excise Tax and the Gross-Up Payment shall be determined by tax counsel mutually
selected by the Company and Executive. The determination of the Company (or in
the event of disagreement, the tax counsel selected) shall be final and
nonreviewable.
(j) For purposes of determining whether any of the Payments will be subject
to the Excise Tax and the amount of such Excise Tax under subparagraph (h), the
following principles will be applicable:
(A) Any payments or benefits received or to be received by Executive in
connection with a termination of employment shall be treated as
"parachute
5
<PAGE>
payments" within the meaning of Section 280G(b)(2) of the Code, and
all "excess parachute payments" within the meaning of Section
280G(b)(1) of the Code shall be treated as subject to the Excise Tax
unless in the opinion of tax counsel mutually selected by the parties
pursuant to subsection (i) above, such other payments or benefits (in
whole or in part) do not constitute parachute payments, or such excess
parachute payments (in whole or in part) represents reasonable
compensation for services actually rendered within the meaning of
Section 280G(b)(4) of the Code in excess of the base amount within the
meaning of Section 280G(b)(3) of the Code, or are otherwise subject to
the Excise Tax; and
(B) The value of any non-cash benefits or any deferred payment or benefit
shall be determined in accordance with Section 280G(d)(3) and (4) of
the Code. For purposes of determining the amount of the Gross-Up
Payment, Executive shall be deemed to pay federal income taxes at the
highest marginal rate of tax in the calendar year in which the
Gross-Up Payment is to be made and state and local income taxes at the
highest marginal rate of tax in the state and locality of Executive's
residence on the date of termination, net of the maximum reduction in
federal income taxes which could be obtained from deduction of such
state and local taxes.
(k) The Payments provided for in subparagraph (h) shall be made in a cash,
lump-sum payment, net of any required tax withholdings, upon the later of (i)
the fifth business day following the effective date of termination, or (ii) the
calculation of the amount of the Gross-Up Payment under subparagraph (i). Any
Payment required hereunder that is not made in a timely manner shall bear
interest at a rate equal to one-hundred twenty percent (120%) of the monthly
compounded applicable federal rate, as in effect under Section 1274(d) of the
Code for the month in which Payment is otherwise required to be made.
5. Confidential Information.
------------------------
(a) Executive acknowledges and agrees that the information, observations
and data obtained by him while employed by the Company and its subsidiaries
concerning the business or affairs of the Company or any other subsidiary
("Confidential Information") are the property of the Company or such subsidiary.
Therefore, Executive agrees to keep secret and retain in the strictest
confidence all Confidential Information, including without limitation, trade
"know-how" secrets, customer lists, pricing policies, operational methods,
technical processes, formulae, inventions and research projects and other
business affairs of the Company, learned by Executive prior to or after the date
of this Agreement, and not to disclose them to anyone outside the Company,
either during or after Executive's employment with the Company, except (i) in
the course of performing Executive's duties hereunder; (ii) with the Company's
express written consent; (iii) to the extent that the Confidential Information
becomes generally known to and available for use by the public other than as a
result of Executive's acts or omissions; or (iv)
6
<PAGE>
where required to be disclosed by court order, subpoena or other government
process. If Executive shall be required to make disclosure pursuant to the
provisions of clause (iv) of the preceding sentence, Executive promptly, but in
no event more than 48 hours after learning of such subpoena, court order or
other governmental process, shall notify the Company, by personal delivery or
fax (pursuant to Section 9 hereof), and, at the Company's expense, shall take
all reasonably necessary steps requested by the Company to defend against the
enforcement of such subpoena, court order or other governmental process and
permit the Company to intervene and participate with counsel of its own choice
in any related proceeding.
(b) Executive shall deliver to the Company at the termination of
Executive's employment, or at any other time the Company may request, all
memoranda, notes, plans, records, reports, computer tapes, printouts and
software and other documents and data (and copies thereof) relating to the
Confidential Information, Work Product (as defined below) or the business of the
Company or any subsidiary which Executive may then possess or have under his
control.
6. Inventions and Patents. Executive acknowledges that all
----------------------
inventions, innovations, improvements, developments, methods, designs, analyses,
drawings, reports and all similar or related information (whether or not
patentable) which relate to the Company's or any of its subsidiaries' actual or
anticipated business, research and development or existing or future products or
services and which are conceived, developed or made by Executive while employed
by the Company or its predecessor and its subsidiaries ("Work Product") belong
------------
to the Company or such subsidiary. Executive shall promptly disclose such Work
Product to the Board and perform all actions reasonably requested by the Board
(whether during or after his employment) to establish and confirm such ownership
(including, without limitation, assignments, consents, powers of attorney and
other instruments).
7. Indemnification. The Company will indemnify Executive and
---------------
Executive's legal representatives, to the fullest extent permitted by the laws
of the State of Delaware and the existing by-laws of the Company or any other
applicable laws or the provisions of any other corporate document of the
Company, and Executive shall be entitled to the protection of any insurance
policies the Company may elect to obtain generally for the benefit of its
directors and officers, against all costs, charges and expenses whatsoever
incurred or sustained by him or his legal representatives in connection with any
action, suit or proceeding to which Executive or Executive's legal
representatives may be made a party by reason of Executive being or having been
a director or officer of the Company or of any of its subsidiaries or affiliates
or actions taken purportedly on behalf of the Company or of any of its
subsidiaries or affiliates.
8. Executive's Representations. Executive hereby represents and
---------------------------
warrants to the Company that (i) the execution, delivery and performance of this
Agreement by Executive do not and shall not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which he is
7
<PAGE>
bound, and (ii) upon the execution and delivery of this Agreement by the
Company, this Agreement shall be the valid and binding obligation of Executive,
enforceable in accordance with its terms. Executive hereby acknowledges and
represents that he has consulted with independent legal counsel regarding his
rights and obligations under this Agreement and that he fully understands the
terms and conditions contained herein.
9. Non-Compete, Non-Solicitation.
-----------------------------
(a) In further consideration of the compensation to be paid to
Executive hereunder, Executive acknowledges that during his employment with the
Company he will become familiar with the Company's trade secrets and with other
Confidential Information concerning the Company and its affiliates and that his
services shall be of special, unique and extraordinary value to the Company.
Therefore, Executive agrees that, during the Noncompete Period (as defined in
Section 9(e)), he shall not, directly or indirectly, own any interest in,
manage, control, participate in, consult with, render services for, or in any
manner engage in any business competing with the businesses of the Company or
its subsidiaries or affiliates, as such businesses exist or are in process on
the date of the termination of Executive's employment. Nothing herein shall
prohibit Executive from being a passive owner of not more than 2% of the
outstanding stock of any class of a corporation which is publicly traded, so
long as Executive has no active participation in the business of such
corporation.
(b) During the Noncompete Period, Executive shall not, directly or
indirectly, through another entity (i) induce or attempt to induce any employee
of the Company or any subsidiary or affiliate to leave the employ of the Company
or such subsidiary or affiliate, or in any way interfere with the relationship
between the Company or any subsidiary or affiliate and any employee thereof,
(ii) induce or attempt to induce any customer, supplier, licensee, licensor,
franchisee or other business relation of the Company or any subsidiary or
affiliate to cease doing business with the Company or such subsidiary or
affiliate, or in any way interfere with the relationship between any such
customer, supplier, licensee or business relation and the Company or any
subsidiary or affiliate (including, without limitation, making any negative
statements or communications about the Company or its subsidiaries or
affiliates).
(c) If, at the time of enforcement of this Section, a court shall hold
that the duration, scope or area restrictions stated herein are unreasonable
under circumstances then existing, the parties agree that the maximum duration,
scope or area reasonable under such circumstances shall be substituted for
8
<PAGE>
the stated duration, scope or area and that the court shall be allowed to revise
the restrictions contained herein to cover the maximum period, scope and area
permitted by law. Executive agrees that the restrictions contained in this
Section are reasonable.
(d) In the event of the breach or a threatened breach by Executive of
any of the provisions of this Section, the Company, in addition and
supplementary to other rights and remedies existing in its favor, may apply to
any court of law or equity of competent jurisdiction for specific performance
and/or injunctive or other relief in order to enforce or prevent any violations
of the provisions hereof (without posting a bond or other security). In
addition, in the event of an alleged breach or violation by Executive of this
Section, the Noncompete Period shall be extended until such breach or violation
has been duly cured.
(e) As used herein, the term "Noncompete Period" means from the date
hereof until Executive's employment hereunder is terminated, plus twelve months
from such date of termination. Notwithstanding the foregoing, in the case of
terminations pursuant to Sections 4(b), (d), (e) or (g), the Noncompete Period
will terminate following the end of then current Employment Period unless from
and after the end of such Employment Period the Company continues to pay
Executive his last effective Base Salary.
10. Notices. Any notice provided for in this Agreement shall be in
-------
writing and shall be deemed to have been duly given if delivered personally with
receipt acknowledged or sent by registered or certified mail or equivalent, if
available, postage prepaid, or by fax (which shall be confirmed by a writing
sent by registered or certified mail or equivalent on the same day that such fax
was sent), addressed to the parties at the following addresses or to such other
address as such party shall hereafter specify by notice to the other:
Notices to Executive: Mr. Stuart Needleman
-------------------- 1821 Huntington Turnpike
Trumbull, CT 06611
(Phone) (203)-380-0649
Notices to the Company: ChiRex Inc.
---------------------- 300 Atlantic Street
Suite 402
Stamford, Connecticut 06901
(Phone) (203) 351-2300
(Fax) (203) 425-9996
Attention: Vice President, General Counsel and
Secretary
11. Severability. Whenever possible, each provision of this
------------
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
9
<PAGE>
12. Complete Agreement. This Agreement constitutes the complete
------------------
agreement and understanding among the parties and supersedes and preempts any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
13. No Strict Construction. The language used in this Agreement
----------------------
shall be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
14. Counterparts. This Agreement may be executed in separate
------------
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
15. Successors and Assigns. This Agreement is intended to bind and
----------------------
inure to the benefit of and be enforceable by Executive, the Company and their
respective heirs, successors and assigns, except that Executive may not assign
his rights or delegate his obligations hereunder without the prior written
consent of the Company. The Company will require any successor to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place.
16. Choice of Law. All issues and questions concerning the
-------------
construction, validity, enforcement and interpretation of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of New York, without giving effect to any choice of
law or conflict of law rules or provisions that would cause the application of
the laws of any jurisdiction other than the State of New York.
17. Amendment and Waiver. The provisions of this Agreement may be
--------------------
amended or waived only with the prior written consent of the Company and
Executive, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement.
18. Arbitration. Any controversy or claim arising out of or relating
-----------
to this Agreement, the making, interpretation or the breach thereof, other than
(a) a claim solely for injunctive relief for any alleged breach of the
provisions of Section 5 as to which the parties shall have the right to apply
for specific performance to any court having equity jurisdiction; and (b) the
determination of Excise Tax and Gross-Up Payment pursuant to Section 4 herein;
shall be settled by arbitration in New York City by one arbitrator in accordance
with the Commercial Arbitration Rules of the American Arbitration Association
and judgement upon the award rendered by the arbitrator may be entered in any
court having jurisdiction thereof and any party to the arbitration may, if he
elects, institute proceedings in any court having jurisdiction for the
10
<PAGE>
specific performance of any such award. The powers of the arbitrator shall
include, but not be limited to, the awarding of injunctive relief.
19. Legal Fees and Expenses. The Company shall reimburse Executive
-----------------------
for all reasonable legal fees and expenses incurred by Executive in connection
with (a) review and/or any claims made regarding the Company's determination of
Excise Tax and Gross-Up Amount pursuant to Section 4 herein, or (b) any
arbitration proceeding brought under this Agreement pursuant to Section 18,
where the arbitration is concluded in Executive's favor.
20. No Mitigation or Set-Off. The provisions of this Agreement are
------------------------
not intended to, nor shall they be construed to require that Executive mitigate
the amount of any payment provided for in this Agreement by seeking or accepting
other employment, nor shall the amount of any payment provided for in this
Agreement be reduced by any compensation earned by Executive as a result of his
employment by another employer or otherwise. The Company's obligations to make
the payments to Executive required under this Agreement, and otherwise to
perform its obligations hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action that the
Company may have against Executive.
* * * * * * * * * * * * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
CHIREX INC.
____________________________
By: Michael A. Griffith
Chairman and Chief Executive Officer
_____________________________
EXECUTIVE
11
<PAGE>
Exhibit 10.10
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of February
26, 1999, between CHIREX INC., a Delaware corporation (the "Company"), and
-------
Thomas Dubin ("Executive").
---------
RECITALS
--------
The Company wishes to hire Executive as its General Counsel, Vice
President and Secretary. The parties hereto desire to set forth in writing the
terms of the Executive's employment relationship with the Company.
In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Employment.
----------
(a) The Company hereby agrees to hire Executive as General Counsel,
Vice President and Secretary to render exclusive and full time legal and
corporate secretarial services to the Company and to perform such other duties
commensurate with such office as Executive shall reasonably be directed by the
senior management and/or Board of Directors of the Company, for the period
specified in Section 2.
(b) Executive hereby accepts such employment and agrees to render the
services described above to the best of Executive's abilities in a diligent,
trustworthy, businesslike and efficient manner. Executive further agrees to
accept election and to serve during all or any part of the term of this
Agreement as an officer or director of the Company and of any subsidiary or
affiliate of the Company, without any compensation therefor, other than that
specified in this Agreement or as otherwise determined by the Board of Directors
of the Company or of any subsidiary or affiliate, as the case may be.
(c) The duties to be performed by Executive hereunder shall be
performed primarily at the principal office of the Company in Connecticut,
subject to reasonable travel requirements on behalf of the Company.
2. Term of Employment.
------------------
The Employment Period of Executive by the Company shall commence on or
before March 22, 1999 and end on December 31, 2001 (the "Initial Term") unless
further extended or
1
<PAGE>
sooner terminated as hereinafter provided. Executive may terminate his
employment during the Initial Term with six months written notice to the
Company. Commencing on December 31, 2001, and each December 31 thereafter, the
term of Executive's employment shall automatically be extended for one
additional year to, respectively, December 31, 2002 and each December 31
thereafter, unless, not later than six months prior to the end of any renewal
term, either party hereunder shall have given notice to the other party that it
does not wish to extend this Agreement. If the Company gives Executive notice
that it does not wish to extend this Agreement during the Initial Term or any
renewal term, Executive shall be entitled to the severance payments provided in
Section 4(d) hereof.
3. Base Salary and Benefits.
------------------------
(a) During the Employment Period, Executive's base salary shall be
$175,000 per annum or such higher rate as the Company may designate from time to
time (the "Base Salary"), which salary shall be payable in regular installments
-----------
in accordance with the Company's general payroll practices and shall be subject
to customary withholding. During the Employment Period, Executive shall be
entitled to participate in all of the Company's employee benefit programs for
which senior executive employees of the Company and its subsidiaries are
generally eligible. In addition, Executive shall be paid a one-time signing
bonus of $25,000 on the first payroll period following his first day of
employment in 1999.
(b) The Company shall reimburse Executive for all reasonable expenses
incurred by his in the course of performing his duties under this Agreement
which are consistent with the Company's policies in effect from time to time
with respect to travel, entertainment and other business expenses, subject to
the Company's requirements with respect to reporting and documentation of such
expenses.
(c) In addition to the Base Salary, Executive shall be eligible to
participate in the Company's bonus program, as such program may be established
and/or amended from time to time by the Board of Directors of the Company.
(d) Executive may be awarded, from time to time, additional
compensation (such as stock options, stock appreciation rights, performance
shares, restricted stock or unrestricted stock) pursuant to the Company's 1997
Stock Incentive Plan or any additional or replacement incentive compensation
program established for the key employees of the Company. Any awards under such
programs shall be at such levels or in such amounts as the Board of Directors
deems, in its sole discretion, appropriate for the position occupied by
Executive and his performance therein. Subject to Section 4 herein, the terms,
conditions and rights with respect to any such grants will be subject to the
actual provisions and conditions applicable to such plans.
(e) The Company will relocate Executive from New Jersey to the
Connecticut area in accordance with the ChiRex Relocation policy.
2
<PAGE>
(f) Executive will be entitled to four weeks paid vacation per year.
In addition, Executive shall also be entitled to paid holidays when the
corporate office is officially closed.
4. Termination and Change of Control
---------------------------------
(a) If the Executive shall die during the Employment Period, this
Agreement shall terminate, except that (i) Executive's surviving spouse or, if
none, his estate, shall be entitled to receive Executive's compensation
(including bonus) to the last day of the third calendar month following the date
of his death; and (ii) such termination shall not affect any rights which
Executive may have at the time of his death pursuant to any insurance or other
death benefit, retirement, stock option or other plans or arrangements of the
Company or of any subsidiary or affiliate of the Company, which rights shall
continue to be governed by the provisions of such plans and arrangements.
(b) At the sole discretion of the Board of Directors, Executive may be
terminated if the Executive is disabled (as defined below) and shall have been
absent from his duties with the Company on a full time basis for one hundred and
eighty (180) consecutive days, and, within thirty (30) days after written notice
by the Company to do so, the Executive shall not have returned to the
performance of his duties hereunder on a full time basis. In the event of such
termination, the Company shall make to Executive the payments specified in
Section 4(d). As used herein, the term "disabled" shall (i) mean that Executive
--------
is unable, as a result of a medically determinable physical or mental
impairment, to perform the duties and services of his position, or (ii) have the
meaning specified in any disability insurance policy maintained by the Company,
whichever is more favorable to the Executive.
(c) The Company may, by notice to Executive, terminate Executive's
employment hereunder for cause. As used herein, "cause" shall mean (i) the
-----
conviction of Executive of a felony or conviction of a misdemeanor if such
misdemeanor involves moral turpitude; or (ii) Executive's voluntary engagement
in conduct constituting larceny, embezzlement, conversion or any other act
involving the misappropriation of Company funds in the course of his employment;
or (iii) the willful refusal to carry out specific directions of the Board of
Directors, which directions shall be consistent with the provisions hereof; or
(iv) Executive's committing any act of gross negligence or intentional
misconduct in the performance or non-performance of his duties as an employee of
the Company; or (v) any material breach by the Executive of any material
provision of this Agreement (other than for reasons related only to the business
performance of the Company or business results achieved by Executive). For
purposes of this Section 4(c), no act or failure to act on Executive's part
shall be considered to be reason for termination for cause if done, or omitted
to be done, by Executive in good faith and with the reasonable belief that the
action or omission was in the best interests of the Company.
3
<PAGE>
(d) Executive's employment may be terminated at any time by the
Company without cause; provided, however, that in such event Executive shall be
entitled to receive (so long as Executive executes and delivers the Company's
standard form of release) 100% of Executive's then effective annual Base Salary
for the remaining term of the then current Employment Period. The foregoing
amounts shall be payable in one lump sum payment within five (5) days after
Executive's last day of active employment. In addition, Executive shall be
entitled to continue participation in the Company's health and other welfare
benefit plans for a period of up to one year or until Executive is covered by a
successor employer's benefit plans, whichever is sooner.
(e) If (i) Executive's employment is terminated pursuant to
subsections (a), (b), (d), (e) or (g) of this Section 4, or (ii) a "Change in
Control" of the Company (as defined in Section 4(f) below) occurs; in either
case, all stock options, restricted stock, deferred compensation and similar
benefits which have not yet become vested on the date of termination or the date
of a Change in Control, as the case shall be, will become vested upon such
event, and Executive shall be permitted to exercise all such rights in
accordance with the administrative provisions of those plans, and in the case of
a Change of Control, whether or not Executive remains employed with the Company
or terminates his employment in accordance with this subsection (e). If a Change
in Control event involves a tender offer for all or part of the Company's
shares, the vesting date for stock options and restricted stock pursuant to this
subsection (e) shall be a date which permits Executive to participate in such
tender offer with such stock options or restricted shares. In addition, if a
Change in Control occurs, Executive may, after such Change in Control, terminate
his employment with the Company for any reason after the expiry of ninety (90)
days immediately following the effective date of such Change in Control, in
which event Executive shall be entitled to the payments specified in Section
4(d) above and to the other rights described elsewhere in this Agreement.
(f) For purposes of this Agreement, a "Change in Control" of the
-----------------
Company shall be deemed to have occurred if: (i) any person (as such term is
used in Sections 13(d) and 14(d)(2) of the Securities and Exchange Act of 1934)
becomes the beneficial owner, directly or indirectly, of Company securities
representing 30% or more of the capital stock of the Company; or (ii)
individuals who constitute the Company's Board of Directors as of the date of
this Agreement (the "Incumbent Board") cease for any reason to constitute at
--------- -----
least a majority thereof, provided, however, that any person becoming a director
subsequent to the date of this Agreement whose election, or nomination for
election by the Company's stockholders, was approved by a vote of at least 51%
of the directors comprising the Incumbent Board (either by a specific vote or by
approval of the proxy statement of the Company in which such person is named as
a nominee for director, without objection to such nomination) shall be, for the
purpose of this clause (ii), considered as though such person were a member of
the Incumbent Board; or (iii) the Company's shareholders approve a merger or
consolidation (where in either case the Company is not the survivor thereof) in
which shareholders of the Company cease to own at least 80% of the surviving
entity's voting power, or a sale or disposition of all or substantially all of
the Company's assets or a plan of partial or complete liquidation of the
Company.
4
<PAGE>
(g) Executive's employment may be terminated by the Executive for
Good Reason. For purposes of this Agreement, "Good Reason" shall mean: (i) the
assignment to Executive of any duties inconsistent in any respect with
Executive's position (including status, offices, titles, and reporting
requirements), authority, duties or responsibilities as contemplated by Section
1(a) hereof, or any other action by the Company which results in a diminution in
such position, authority, duties or responsibilities, excluding for this purpose
an isolated, insubstantial and inadvertent action not taken in bad faith and
which is remedied by the Company promptly after receipt of notice thereof given
by Executive; (ii) any failure by the Company to comply with any of the
provisions of Section 3 hereof, other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by Executive; (iii) the
Company's requiring Executive to be based at any office or location other than
as provided in Section 1(c) hereof; (iv) any purported termination by the
Company of Executive's employment otherwise than as expressly permitted by this
Agreement; or (v) any failure by the Company to obtain an express assumption of
this Agreement by a successor as required pursuant to Section 14 hereof. For
purposes of this Section 4(g), any good faith determination of "Good Reason"
made by Executive shall be conclusive. Upon any termination pursuant to this
subsection (g), Executive shall be entitled to the payment specified in Section
4(d) hereof and to the other rights described therein (subject to his compliance
therewith).
(h) Anything in this Agreement to the contrary notwithstanding, in
the event it shall be determined that any payment or distribution by the Company
to or for the benefit of Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this
subsection (h) (a "Payment") would be subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or
any interest or penalties are incurred by Executive with respect to such excise
tax (such excise tax, together with any such interest and penalties are
hereinafter collectively referred to as the "Excise Tax"), the Company shall pay
to Executive at the time specified in subparagraph (k) below an additional
amount (a "Gross-Up Payment") such that the net amount retained by Executive,
after deduction of any Excise Tax on a Payment and any federal (and state and
local) income tax (and any interest and penalties imposed with respect thereto),
employment tax and Excise Tax on a Payment, shall be equal to the amount of all
the Payments.
(i) For purposes of the foregoing subparagraph (h), the proper
amounts, if any, of the Excise Tax and the Gross-Up Payment shall be determined
in the first instance by the Company. Such determination by the Company shall be
communicated in writing by the Company to Executive at least fourteen (14) days
prior to the occurrence of a Change of Control. Within ten (10) days of being
provided with written notice of any such determination, Executive may provide
written notice to the Chairperson of the Compensation Committee of the Board of
Directors of the Company of any disagreement, in which event the amounts, if
any, of the Excise Tax and the Gross-Up Payment shall be determined by tax
counsel mutually selected by the Company and Executive.
5
<PAGE>
The determination of the Company (or in the event of disagreement, the tax
counsel selected) shall be final and nonreviewable.
(j) For purposes of determining whether any of the Payments will be
subject to the Excise Tax and the amount of such Excise Tax under subparagraph
(h), the following principles will be applicable:
(A) Any payments or benefits received or to be received by
Executive in connection with a termination of employment
shall be treated as "parachute payments" within the
meaning of Section 280G(b)(2) of the Code, and all "excess
parachute payments" within the meaning of Section
280G(b)(1) of the Code shall be treated as subject to the
Excise Tax unless in the opinion of tax counsel mutually
selected by the parties pursuant to subsection (i) above,
such other payments or benefits (in whole or in part) do
not constitute parachute payments, or such excess
parachute payments (in whole or in part) represents
reasonable compensation for services actually rendered
within the meaning of Section 280G(b)(4) of the Code in
excess of the base amount within the meaning of Section
280G(b)(3) of the Code, or are otherwise subject to the
Excise Tax; and
(B) The value of any non-cash benefits or any deferred payment
or benefit shall be determined in accordance with Section
280G(d)(3) and (4) of the Code. For purposes of
determining the amount of the Gross-Up Payment, Executive
shall be deemed to pay federal income taxes at the highest
marginal rate of tax in the calendar year in which the
Gross-Up Payment is to be made and state and local income
taxes at the highest marginal rate of tax in the state and
locality of Executive's residence on the date of
termination, net of the maximum reduction in federal
income taxes which could be obtained from deduction of
such state and local taxes.
(k) The Payments provided for in subparagraph (h) shall be made in a
cash, lump-sum payment, net of any required tax withholdings, upon the later of
(i) the fifth business day following the effective date of termination, or (ii)
the calculation of the amount of the Gross-Up Payment under subparagraph (i).
Any Payment required hereunder that is not made in a timely manner shall bear
interest at a rate equal to one-hundred twenty percent (120%) of the monthly
compounded applicable federal rate, as in effect under Section 1274(d) of the
Code for the month in which Payment is otherwise required to be made.
5. Confidential Information.
------------------------
(a) Executive acknowledges and agrees that the information,
observations and data obtained by him while employed by the Company and its
subsidiaries concerning the business or affairs of the Company or any other
subsidiary ("Confidential Information") are the property of the Company or such
subsidiary. Therefore, Executive agrees to keep secret and retain in the
6
<PAGE>
strictest confidence all Confidential Information, including without limitation,
trade "know-how" secrets, customer lists, pricing policies, operational methods,
technical processes, formulae, inventions and research projects and other
business affairs of the Company, learned by his prior to or after the date of
this Agreement, and not to disclose them to anyone outside the Company, either
during or after his employment with the Company, except (i) in the course of
performing his duties hereunder; (ii) with the Company's express written
consent; (iii) to the extent that the Confidential Information becomes generally
known to and available for use by the public other than as a result of
Executive's acts or omissions; or (iv) where required to be disclosed by court
order, subpoena or other government process. If Executive shall be required to
make disclosure pursuant to the provisions of clause (iv) of the preceding
sentence, Executive promptly, but in no event more than 48 hours after learning
of such subpoena, court order or other governmental process, shall notify the
Company, by personal delivery or fax (pursuant to Section 9 hereof), and, at the
Company's expense, shall take all reasonably necessary steps requested by the
Company to defend against the enforcement of such subpoena, court order or other
governmental process and permit the Company to intervene and participate with
counsel of its own choice in any related proceeding.
(b) Executive shall deliver to the Company at the termination of his
employment, or at any other time the Company may request, all memoranda, notes,
plans, records, reports, computer tapes, printouts and software and other
documents and data (and copies thereof) relating to the Confidential
Information, Work Product (as defined below) or the business of the Company or
any subsidiary which Executive may then possess or have under his control.
6. Inventions and Patents. Executive acknowledges that all
----------------------
inventions, innovations, improvements, developments, methods, designs, analyses,
drawings, reports and all similar or related information (whether or not
patentable) which relate to the Company's or any of its subsidiaries' actual or
anticipated business, research and development or existing or future products or
services and which are conceived, developed or made by Executive while employed
by the Company or its predecessor and its subsidiaries ("Work Product") belong
------------
to the Company or such subsidiary. Executive shall promptly disclose such Work
Product to the Board and perform all actions reasonably requested by the Board
(whether during or after his employment) to establish and confirm such ownership
(including, without limitation, assignments, consents, powers of attorney and
other instruments).
7. Indemnification. The Company will indemnify Executive and
---------------
his legal representatives, to the fullest extent permitted by the laws of the
State of Delaware and the existing by-laws of the Company or any other
applicable laws or the provisions of any other corporate document of the
Company, and Executive shall be entitled to the protection of any insurance
policies the Company may elect to obtain generally for the benefit of its
directors and officers, against all costs, charges and expenses whatsoever
incurred or sustained by him or his legal representatives in connection with any
action, suit or proceeding to which he or his legal representatives may be made
a party by reason of his being or having been a director or officer of the
Company or of any of its
7
<PAGE>
subsidiaries or affiliates or actions taken purportedly on behalf of the Company
or of any of its subsidiaries or affiliates.
8. Executive's Representations. Executive hereby represents and
---------------------------
warrants to the Company that (i) the execution, delivery and performance of this
Agreement by Executive do not and shall not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which he is bound, and (ii) upon the
execution and delivery of this Agreement by the Company, this Agreement shall be
the valid and binding obligation of Executive, enforceable in accordance with
its terms. Executive hereby acknowledges and represents that he has consulted
with independent legal counsel regarding his rights and obligations under this
Agreement and that he fully understands the terms and conditions contained
herein.
9. Notices. Any notice provided for in this Agreement shall be in
-------
writing and shall be deemed to have been duly given if delivered personally with
receipt acknowledged or sent by registered or certified mail or equivalent, if
available, postage prepaid, or by fax (which shall be confirmed by a writing
sent by registered or certified mail or equivalent on the same day that such fax
was sent), addressed to the parties at the following addresses or to such other
address as such party shall hereafter specify by notice to the other:
Notices to Executive: Thomas I.H. Dubin
-------------------- 10 Aberdeen Road
Chatham Township, NJ 07928
(973) 301-2109 (phone)
Notices to the Company: ChiRex Inc.
---------------------- 300 Atlantic Street
Suite 402
Stamford, Connecticut 06901
(Phone) (203) 351-2300
(Fax) (203) 425-9996
Attention: Chief Executive Officer
10. Severability. Whenever possible, each provision of this
------------
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced
8
<PAGE>
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
11. Complete Agreement. This Agreement constitutes the complete
------------------
agreement and understanding among the parties and supersedes and preempts any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
12. No Strict Construction. The language used in this Agreement
----------------------
shall be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
13. Counterparts. This Agreement may be executed in separate
------------
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
14. Successors and Assigns. This Agreement is intended to bind and
----------------------
inure to the benefit of and be enforceable by Executive, the Company and their
respective heirs, successors and assigns, except that Executive may not assign
his rights or delegate his obligations hereunder without the prior written
consent of the Company. The Company will require any successor to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place.
15. Choice of Law. All issues and questions concerning the
-------------
construction, validity, enforcement and interpretation of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of New York, without giving effect to any choice of
law or conflict of law rules or provisions that would cause the application of
the laws of any jurisdiction other than the State of New York.
16. Amendment and Waiver. The provisions of this Agreement may be
--------------------
amended or waived only with the prior written consent of the Company and
Executive, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement.
17. Arbitration. Any controversy or claim arising out of or relating
-----------
to this Agreement, the making, interpretation or the breach thereof, other than
(a) a claim solely for injunctive relief for any alleged breach of the
provisions of Section 5 as to which the parties shall have the right to apply
for specific performance to any court having equity jurisdiction; and (b) the
determination of Excise Tax and Gross-Up Payment pursuant to Section 4 herein;
shall be settled by arbitration in New York City by one arbitrator in accordance
with the Commercial Arbitration Rules of the American Arbitration Association
and judgement upon the award rendered by the
9
<PAGE>
arbitrator may be entered in any court having jurisdiction thereof and any party
to the arbitration may, if he elects, institute proceedings in any court having
jurisdiction for the specific performance of any such award. The powers of the
arbitrator shall include, but not be limited to, the awarding of injunctive
relief.
18. Legal Fees and Expenses. The Company shall reimburse Executive
-----------------------
for all reasonable legal fees and expenses incurred by Executive in connection
with (a) review and/or any claims made regarding the Company's determination of
Excise Tax and Gross-Up Amount pursuant to Section 4 herein, or (b) any
arbitration proceeding brought under this Agreement pursuant to Section 17,
where the arbitration is concluded in Executive's favor.
19. No Mitigation or Set-Off. The provisions of this Agreement are
------------------------
not intended to, nor shall they be construed to require that Executive mitigate
the amount of any payment provided for in this Agreement by seeking or accepting
other employment, nor shall the amount of any payment provided for in this
Agreement be reduced by any compensation earned by Executive as a result of his
employment by another employer or otherwise. The Company's obligations to make
the payments to Executive required under this Agreement, and otherwise to
perform its obligations hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action that the
Company may have against Executive.
* * * * * * * * * * * * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
CHIREX INC.
____________________________
By: Michael A. Griffith
Chairman and Chief Executive Officer
_____________________________
Thomas I.H. Dubin
10
<PAGE>
Exhibit 10.11
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of July 5,
1999, between CHIREX INC., a Delaware corporation (the "Company"), and BRUCE P.
-------
SHUTTS ("Executive").
---------
RECITALS
--------
The Company wishes to hire Executive as its Vice President,
Development Operations. The parties hereto desire to set forth in writing the
terms of the Executive's employment relationship with the Company.
In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Employment.
----------
(a) The Company hereby agrees to hire Executive to render full time
and exclusive services to the Company as its Vice President, Development
Operations, and to perform such other duties commensurate with such office as
Executive shall reasonably be directed by the senior management and/or Board of
Directors of the Company, for the period specified in Section 2.
(b) Executive hereby accepts such employment and agrees to render the
services described above to the best of Executive's abilities in a diligent,
trustworthy, businesslike and efficient manner. Executive further agrees to
accept election and to serve during all or any part of the term of this
Agreement as an officer or director of the Company and of any subsidiary or
affiliate of the Company, without any compensation therefor, other than that
specified in this Agreement or as otherwise determined by the Board of Directors
of the Company or of any subsidiary or affiliate, as the case may be.
(c) The duties to be performed by Executive hereunder shall be
performed primarily at the Company's offices in Boston, Massachusetts, subject
to reasonable travel requirements on behalf of the Company.
2. Term of Employment.
------------------
The Employment Period of Executive by the Company shall commence on
the date hereof and end on July 4, 2001 (the "Initial Term") unless further
extended or sooner
1
<PAGE>
terminated as hereinafter provided. Executive may terminate his employment
during the Initial Term with six months written notice to the Company.
Commencing on July 5, 2001, and each July 5 thereafter, the term of Executive's
employment shall automatically be extended for one additional year to,
respectively, July 5, 2002, and each July 5 thereafter, unless, not later than
six months prior to the end of any renewal term, either party hereunder shall
have given notice to the other party that it does not wish to extend this
Agreement. If the Company gives Executive notice that it does not wish to extend
this Agreement during the Initial Term or any renewal term, Executive shall be
entitled to the severance payments provided in Section 4(d) hereof. As used
herein, the term "Employment Period" shall refer to the Initial Term and any
renewal term of Executive's employment with the Company.
3. Base Salary and Benefits.
------------------------
(a) During the Employment Period, Executive's base salary shall be
$200,000 per annum or such higher rate as the Company may designate from time to
time (the "Base Salary"), which salary shall be payable in regular installments
-----------
in accordance with the Company's general payroll practices and shall be subject
to customary withholding. In addition, during the Employment Period, Executive
shall be entitled to participate in all of the Company's employee benefit
programs for which senior executive employees of the Company and its
subsidiaries are generally eligible.
(b) The Company shall reimburse Executive for all reasonable expenses
incurred by Executive in the course of performing Executive's duties under this
Agreement which are consistent with the Company's policies in effect from time
to time with respect to travel, entertainment and other business expenses,
subject to the Company's requirements with respect to reporting and
documentation of such expenses.
(c) In addition to the Base Salary, Executive shall be eligible to
participate in the Company's bonus program, as such program may be established
and/or amended from time to time by the Board of Directors of the Company.
(d) Executive may be awarded, from time to time, additional
compensation (such as stock options, stock appreciation rights, performance
shares, restricted stock or unrestricted stock) pursuant to the Company's 1997
Stock Incentive Plan or any additional or replacement incentive compensation
program established for the key employees of the Company. Any awards under such
programs shall be at such levels or in such amounts as the Board of Directors
deems, in its sole discretion, appropriate for the position occupied by
Executive and his performance therein. Subject to Section 4 herein, the terms,
conditions and rights with respect to any such grants will be subject to the
actual provisions and conditions applicable to such plans.
4. Termination and Change of Control
---------------------------------
2
<PAGE>
(a) If the Executive shall die during the Employment Period, this
Agreement shall terminate, except that (i) Executive's surviving spouse or, if
none, his estate, shall be entitled to receive Executive's compensation
(including bonus) to the last day of the third calendar month following the date
of his death; and (ii) such termination shall not affect any rights which
Executive may have at the time of his death pursuant to any insurance or other
death benefit, retirement, stock option or other plans or arrangements of the
Company or of any subsidiary or affiliate of the Company, which rights shall
continue to be governed by the provisions of such plans and arrangements.
(b) At the sole discretion of the Board of Directors, Executive may be
terminated if the Executive is disabled (as defined below) and shall have been
absent from his duties with the Company on a full time basis for one hundred and
eighty (180) consecutive days, and, within thirty (30) days after written notice
by the Company to do so, the Executive shall not have returned to the
performance of his duties hereunder on a full time basis. In the event of such
termination, the Company shall make to Executive the payments specified in
Section 4(d). As used herein, the term "disabled" shall (i) mean that Executive
--------
is unable, as a result of a medically determinable physical or mental
impairment, to perform the duties and services of his position, or (ii) have the
meaning specified in any disability insurance policy maintained by the Company,
whichever is more favorable to the Executive.
(c) The Company may, by notice to Executive, terminate Executive's
employment hereunder for cause. As used herein, "cause" shall mean (i) the
-----
conviction of Executive of a felony or conviction of a misdemeanor if such
misdemeanor involves moral turpitude; or (ii) Executive's voluntary engagement
in conduct constituting larceny, embezzlement, conversion or any other act
involving the misappropriation of Company funds in the course of his employment;
or (iii) the willful refusal to carry out specific directions of the Board of
Directors, which directions shall be consistent with the provisions hereof; or
(iv) Executive's committing any act of gross negligence or intentional
misconduct in the performance or non-performance of his duties as an employee of
the Company; or (v) any material breach by the Executive of any material
provision of this Agreement (other than for reasons related only to the business
performance of the Company or business results achieved by Executive). For
purposes of this Section 4(c), no act or failure to act on Executive's part
shall be considered to be reason for termination for cause if done, or omitted
to be done, by Executive in good faith and with the reasonable belief that the
action or omission was in the best interests of the Company.
(d) Executive's employment may be terminated at any time by the
Company without cause; provided, however, that in such event Executive shall be
entitled to receive (so long as Executive executes and delivers the Company's
standard form of release) 100%of Executive's then effective annual Base Salary
for the remaining term of the then current Employment Period, plus one year.
The foregoing amounts shall be payable in one lump sum payment within five (5)
days after Executive's last day of active employment. In addition, Executive
shall be entitled to continue participation in the Company's health and other
welfare
3
<PAGE>
benefit plans for a period of up to one year or until Executive is covered by a
successor employer's benefit plans, whichever is sooner.
(e) If (i) Executive's employment is terminated pursuant to
subsections (a), (b), (d), (e) or (g) of this Section 4, or (ii) a "Change in
Control" of the Company (as defined in Section 4(f) below) occurs; in either
case, all stock options, restricted stock, deferred compensation and similar
benefits which have not yet become vested on the date of termination or the date
of a Change in Control, as the case shall be, will become vested upon such
event, and Executive shall be permitted to exercise all such rights in
accordance with the administrative provisions of those plans, and in the case of
a Change of Control, whether or not Executive remains employed with the Company
or terminates his employment in accordance with this subsection (e). If a Change
in Control event involves a tender offer for all or part of the Company's
shares, the vesting date for stock options and restricted stock pursuant to this
subsection (e) shall be a date which permits Executive to participate in such
tender offer with such stock options or restricted shares. In addition, if a
Change in Control occurs, Executive may, after such Change in Control, terminate
his employment with the Company for any reason after the expiry of ninety (90)
days immediately following the effective date of such Change in Control, in
which event Executive shall be entitled to the payments specified in Section
4(d) above and to the other rights described elsewhere in this Agreement.
(f) For purposes of this Agreement, a "Change in Control" of the
-----------------
Company shall be deemed to have occurred if: (i) any person (as such term is
used in Sections 13(d) and 14(d)(2) of the Securities and Exchange Act of 1934)
becomes the beneficial owner, directly or indirectly, of Company securities
representing 30% or more of the capital stock of the Company; or (ii)
individuals who constitute the Company's Board of Directors as of the date of
this Agreement (the "Incumbent Board") cease for any reason to
--------- -----
constitute at least a majority thereof, provided, however, that any person
becoming a director subsequent to the date of this Agreement whose election, or
nomination for election by the Company's stockholders, was approved by a vote of
at least 51% of the directors comprising the Incumbent Board (either by a
specific vote or by approval of the proxy statement of the Company in which such
person is named as a nominee for director, without objection to such nomination)
shall be, for the purpose of this clause (ii), considered as though such person
were a member of the Incumbent Board; or (iii) the Company's shareholders
approve a merger or consolidation (where in either case the Company is not the
survivor thereof) in which shareholders of the Company cease to own at least 80%
of the surviving entity's voting power, or a sale or disposition of all or
substantially all of the Company's assets or a plan of partial or complete
liquidation of the Company.
(g) Executive's employment may be terminated by the Executive for Good
Reason. For purposes of this Agreement, "Good Reason" shall mean: (i) the
assignment to Executive of any duties inconsistent in any respect with
Executive's position (including status, offices, titles, and reporting
requirements), authority, duties or responsibilities as contemplated by Section
1(a) hereof, or any other action by the Company which results in a diminution in
such
4
<PAGE>
position, authority, duties or responsibilities, excluding for this purpose an
isolated, insubstantial and inadvertent action not taken in bad faith and which
is remedied by the Company promptly after receipt of notice thereof given by
Executive; (ii) any failure by the Company to comply with any of the provisions
of Section 3 hereof, other than an isolated, insubstantial and inadvertent
failure not occurring in bad faith and which is remedied by the Company promptly
after receipt of notice thereof given by Executive; (iii) the Company's
requiring Executive to be based at any office or location other than as provided
in Section 1(c) hereof; (iv) any purported termination by the Company of
Executive's employment otherwise than as expressly permitted by this Agreement;
or (v) any failure by the Company to obtain an express assumption of this
Agreement by a successor as required pursuant to Section 14 hereof. For purposes
of this Section 4(g), any good faith determination of "Good Reason" made by
Executive shall be conclusive. Upon any termination pursuant to this subsection
(g), Executive shall be entitled to the payment specified in Section 4(d) hereof
and to the other rights described therein (subject to his compliance therewith).
(h) Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined that any payment or distribution by the Company to
or for the benefit of Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this
subsection (h) (a "Payment") would be subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or
any interest or penalties are incurred by Executive with respect to such excise
tax (such excise tax, together with any such interest and penalties are
hereinafter collectively referred to as the "Excise Tax"), the Company shall pay
to Executive at the time specified in subparagraph (k) below an additional
amount (a "Gross-Up Payment") such that the net amount retained by Executive,
after deduction of any Excise Tax on a Payment and any federal (and state and
local) income tax (and any interest and penalties imposed with respect thereto),
employment tax and Excise Tax on a Payment, shall be equal to the amount of all
the Payments.
(i) For purposes of the foregoing subparagraph (h), the proper
amounts, if any, of the Excise Tax and the Gross-Up Payment shall be determined
in the first instance by the Company. Such determination by the Company shall be
communicated in writing by the Company to Executive at least fourteen (14) days
prior to the occurrence of a Change of Control. Within ten (10) days of being
provided with written notice of any such determination, Executive may provide
written notice to the Chairperson of the Compensation Committee of the Board of
Directors of the Company of any disagreement, in which event the amounts, if
any, of the Excise Tax and the Gross-Up Payment shall be determined by tax
counsel mutually selected by the Company and Executive. The determination of the
Company (or in the event of disagreement, the tax counsel selected) shall be
final and nonreviewable.
(j) For purposes of determining whether any of the Payments will be
subject to the Excise Tax and the amount of such Excise Tax under subparagraph
(h), the following principles will be applicable:
5
<PAGE>
(A) Any payments or benefits received or to be received by
Executive in connection with a termination of employment
shall be treated as "parachute payments" within the meaning
of Section 280G(b)(2) of the Code, and all "excess parachute
payments" within the meaning of Section 280G(b)(1) of the
Code shall be treated as subject to the Excise Tax unless in
the opinion of tax counsel mutually selected by the parties
pursuant to subsection (i) above, such other payments or
benefits (in whole or in part) do not constitute parachute
payments, or such excess parachute payments (in whole or in
part) represents reasonable compensation for services
actually rendered within the meaning of Section 280G(b)(4)
of the Code in excess of the base amount within the meaning
of Section 280G(b)(3) of the Code, or are otherwise subject
to the Excise Tax; and
(B) The value of any non-cash benefits or any deferred payment
or benefit shall be determined in accordance with Section
280G(d)(3) and (4) of the Code. For purposes of determining
the amount of the Gross-Up Payment, Executive shall be
deemed to pay federal income taxes at the highest marginal
rate of tax in the calendar year in which the Gross-Up
Payment is to be made and state and local income taxes at
the highest marginal rate of tax in the state and locality
of Executive's residence on the date of termination, net of
the maximum reduction in federal income taxes which could be
obtained from deduction of such state and local taxes.
(k) The Payments provided for in subparagraph (h) shall be made in a
cash, lump-sum payment, net of any required tax withholdings, upon the later of
(i) the fifth business day following the effective date of termination, or (ii)
the calculation of the amount of the Gross-Up Payment under subparagraph (i).
Any Payment required hereunder that is not made in a timely manner shall bear
interest at a rate equal to one-hundred twenty percent (120%) of the monthly
compounded applicable federal rate, as in effect under Section 1274(d) of the
Code for the month in which Payment is otherwise required to be made.
5. Confidential Information.
------------------------
(a) Executive acknowledges and agrees that the information,
observations and data obtained by him while employed by the Company and its
subsidiaries concerning the business or affairs of the Company or any other
subsidiary ("Confidential Information") are the property of the Company or such
------------------------
subsidiary. Therefore, Executive agrees to keep secret and retain in the
strictest confidence all Confidential Information, including without limitation,
trade "know-how" secrets, customer lists, pricing policies, operational methods,
technical processes, formulae, inventions and research projects and other
business affairs of the Company, learned by Executive prior to or after the date
of this Agreement, and not to disclose them to anyone outside the Company,
either during or after Executive's employment with the Company, except (i) in
the course of performing Executive's duties hereunder; (ii) with the Company's
express written
6
<PAGE>
consent; (iii) to the extent that the Confidential Information becomes generally
known to and available for use by the public other than as a result of
Executive's acts or omissions; or (iv) where required to be disclosed by court
order, subpoena or other government process. If Executive shall be required to
make disclosure pursuant to the provisions of clause (iv) of the preceding
sentence, Executive promptly, but in no event more than 48 hours after learning
of such subpoena, court order or other governmental process, shall notify the
Company, by personal delivery or fax (pursuant to Section 9 hereof), and, at the
Company's expense, shall take all reasonably necessary steps requested by the
Company to defend against the enforcement of such subpoena, court order or other
governmental process and permit the Company to intervene and participate with
counsel of its own choice in any related proceeding.
(b) Executive shall deliver to the Company at the termination of
Executive's employment, or at any other time the Company may request, all
memoranda, notes, plans, records, reports, computer tapes, printouts and
software and other documents and data (and copies thereof) relating to the
Confidential Information, Work Product (as defined below) or the business of the
Company or any subsidiary which Executive may then possess or have under his
control.
6. Inventions and Patents. Executive acknowledges that all
----------------------
inventions, innovations, improvements, developments, methods, designs, analyses,
drawings, reports and all similar or related information (whether or not
patentable) which relate to the Company's or any of its subsidiaries' actual or
anticipated business, research and development or existing or future products or
services and which are conceived, developed or made by Executive while employed
by the Company or its predecessor and its subsidiaries ("Work Product") belong
------------
to the Company or such subsidiary. Executive shall promptly disclose such Work
Product to the Board and perform all actions reasonably requested by the Board
(whether during or after his employment) to establish and confirm such ownership
(including, without limitation, assignments, consents, powers of attorney and
other instruments).
7. Indemnification. The Company will indemnify Executive and
---------------
Executive's legal representatives, to the fullest extent permitted by the laws
of the State of Delaware and the existing by-laws of the Company or any other
applicable laws or the provisions of any other corporate document of the
Company, and Executive shall be entitled to the protection of any insurance
policies the Company may elect to obtain generally for the benefit of its
directors and officers, against all costs, charges and expenses whatsoever
incurred or sustained by him or his legal representatives in connection with any
action, suit or proceeding to which Executive or Executive's legal
representatives may be made a party by reason of Executive being or having been
a director or officer of the Company or of any of its subsidiaries or affiliates
or actions taken purportedly on behalf of the Company or of any of its
subsidiaries or affiliates.
8. Executive's Representations. Executive hereby represents and
---------------------------
warrants to the Company that (i) the execution, delivery and performance of this
Agreement by Executive
7
<PAGE>
do not and shall not conflict with, breach, violate or cause a default under any
contract, agreement, instrument, order, judgment or decree to which Executive is
a party or by which he is bound, and (ii) upon the execution and delivery of
this Agreement by the Company, this Agreement shall be the valid and binding
obligation of Executive, enforceable in accordance with its terms. Executive
hereby acknowledges and represents that he has consulted with independent legal
counsel regarding his rights and obligations under this Agreement and that he
fully understands the terms and conditions contained herein.
9. Non-Compete, Non-Solicitation.
-----------------------------
(a) In further consideration of the compensation to be paid to
Executive hereunder, Executive acknowledges that during his employment with the
Company he will become familiar with the Company's trade secrets and with other
Confidential Information concerning the Company and its affiliates and that his
services shall be of special, unique and extraordinary value to the Company.
Therefore, Executive agrees that, during the Employment Period and for six
months thereafter (the "Noncompete Period"), he shall not, directly or
-----------------
indirectly, own any interest in, manage, control, participate in, consult with,
render services for, or in any manner engage in any business competing with the
businesses of the Company or its subsidiaries or affiliates, as such businesses
exist or are in process on the date of the termination of Executive's
employment. Nothing herein shall prohibit Executive from being a passive owner
of not more than 2% of the outstanding stock of any class of a corporation which
is publicly traded, so long as Executive has no active participation in the
business of such corporation.
(b) During the Noncompete Period, Executive shall not, directly or
indirectly, through another entity (i) induce or attempt to induce any employee
of the Company or any subsidiary or affiliate to leave the employ of the Company
or such subsidiary or affiliate, or in any way interfere with the relationship
between the Company or any subsidiary or affiliate and any employee thereof,
(ii) induce or attempt to induce any customer, supplier, licensee, licensor,
franchisee or other business relation of the Company or any subsidiary or
affiliate to cease doing business with the Company or such subsidiary or
affiliate, or in any way interfere with the relationship between any such
customer, supplier, licensee or business relation and the Company or any
subsidiary or affiliate (including, without limitation, making any negative
statements or communications about the Company or its subsidiaries or
affiliates).
(c) If, at the time of enforcement of this Section, a court shall hold
that the duration, scope or area restrictions stated herein are unreasonable
under circumstances then existing, the parties agree that the maximum duration,
scope or area reasonable under such circumstances shall be substituted for the
stated duration, scope or area and that the court shall be allowed to revise the
restrictions contained herein to cover the maximum period, scope and area
permitted by law. Executive agrees that the restrictions contained in this
Section are reasonable.
8
<PAGE>
(d) In the event of the breach or a threatened breach by Executive of
any of the provisions of this Section, the Company, in addition and
supplementary to other rights and remedies existing in its favor, may apply to
any court of law or equity of competent jurisdiction for specific performance
and/or injunctive or other relief in order to enforce or prevent any violations
of the provisions hereof (without posting a bond or other security). In
addition, in the event of an alleged breach or violation by Executive of this
Section, the Noncompete Period shall be extended until such breach or violation
has been duly cured.
10. Notices. Any notice provided for in this Agreement
-------
shall be in writing and shall be deemed to have been duly given if delivered
personally with receipt acknowledged or sent by registered or certified mail or
equivalent, if available, postage prepaid, or by fax (which shall be confirmed
by a writing sent by registered or certified mail or equivalent on the same day
that such fax was sent), addressed to the parties at the following addresses or
to such other address as such party shall hereafter specify by notice to the
other:
Notices to Executive: Mr. Bruce Shutts
-------------------- 814 Cedar Terrace
Westfield, NJ 07090
(908) 654-8028 (Phone)
Notices to the Company: ChiRex Inc.
---------------------- 300 Atlantic Street
Suite 402
Stamford, Connecticut 06901
(203) 351-2300 (Phone)
(203) 425-9996 (Fax)
Attention: Vice President, General Counsel and
Secretary
11. Severability. Whenever possible, each provision of this
------------
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
12. Complete Agreement. This Agreement constitutes the complete
------------------
agreement and understanding among the parties and supersedes and preempts any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
9
<PAGE>
13. No Strict Construction. The language used in this Agreement
----------------------
shall be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
14. Counterparts. This Agreement may be executed in separate
------------
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
15. Successors and Assigns. This Agreement is intended to bind and
----------------------
inure to the benefit of and be enforceable by Executive, the Company and their
respective heirs, successors and assigns, except that Executive may not assign
his rights or delegate his obligations hereunder without the prior written
consent of the Company. The Company will require any successor to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place.
16. Choice of Law. All issues and questions concerning the
-------------
construction, validity, enforcement and interpretation of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of New York, without giving effect to any choice of
law or conflict of law rules or provisions that would cause the application of
the laws of any jurisdiction other than the State of New York.
17. Amendment and Waiver. The provisions of this Agreement may be
--------------------
amended or waived only with the prior written consent of the Company and
Executive, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement.
18. Arbitration. Any controversy or claim arising out of or relating
-----------
to this Agreement, the making, interpretation or the breach thereof, other than
(a) a claim solely for injunctive relief for any alleged breach of the
provisions of Section 5 as to which the parties shall have the right to apply
for specific performance to any court having equity jurisdiction; and (b) the
determination of Excise Tax and Gross-Up Payment pursuant to Section 4 herein;
shall be settled by arbitration in New York City by one arbitrator in accordance
with the Commercial Arbitration Rules of the American Arbitration Association
and judgement upon the award rendered by the arbitrator may be entered in any
court having jurisdiction thereof and any party to the arbitration may, if he
elects, institute proceedings in any court having jurisdiction for the specific
performance of any such award. The powers of the arbitrator shall include, but
not be limited to, the awarding of injunctive relief.
19. Legal Fees and Expenses. The Company shall reimburse Executive
-----------------------
for all reasonable legal fees and expenses incurred by Executive in connection
with (a) review and/or
10
<PAGE>
any claims made regarding the Company's determination of Excise Tax and Gross-Up
Amount pursuant to Section 4 herein, or (b) any arbitration proceeding brought
under this Agreement pursuant to Section 18, where the arbitration is concluded
in Executive's favor.
20. No Mitigation or Set-Off. The provisions of this Agreement are
------------------------
not intended to, nor shall they be construed to require that Executive mitigate
the amount of any payment provided for in this Agreement by seeking or accepting
other employment, nor shall the amount of any payment provided for in this
Agreement be reduced by any compensation earned by Executive as a result of his
employment by another employer or otherwise. The Company's obligations to make
the payments to Executive required under this Agreement, and otherwise to
perform its obligations hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action that the
Company may have against Executive.
* * * * * * * * * * * * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
CHIREX INC.
____________________________
By: Michael A. Griffith
Chairman and Chief Executive Officer
_____________________________
EXECUTIVE
11
<PAGE>
EXHIBIT 13
FRONT COVER
ChiRex Inc.
The Drug Substance Company
Continuing to Deliver
Technology Development Manufacturing
INSIDE FRONT COVER
(financial performance)
ChiRex is a leading company in the field of pharmaceutical active ingredient
(drug substance) outsourcing. ChiRex offers a combination of proprietary chiral
and non-chiral process chemistry technologies, contract process research and
development services (contract chemistry) and commercial-scale contract
manufacturing. ChiRex uses its integrated in-house, validated technology
transfer system to provide customers with faster, less-risky advancement along
the drug development continuum. Such capabilities give ChiRex a distinct
competitive advantage over both our contract chemistry competitors and our
contract manufacturing competitors. ChiRex is creating value for shareholders
by capturing the rapidly growing demand for clinical and launch drug substance
outsourcing services from pharmaceutical and biotechnology customers.
1
<PAGE>
CHAIRMAN'S LETTER
TO OUR SHAREHOLDERS
During 1999, ChiRex achieved all of the financial, operational, organizational
and technology goals we set for ourselves. In fact, we have already
accomplished our major 2000 goal: to become the number one contract process
research and development organization in the world, measured by revenues.
Financial Performance
1999 has been a year of significant accomplishment. ChiRex achieved record gross
revenues of $147.0 million, a 23% increase from $119.7 million in 1998. Gross
profit reached $53.2 million (36.2% of revenues) versus $31.8 million (27% of
revenues) in 1998. Net income (before non-recurring expenses) rose to $16.2
million, or $1.08 per share, a 177% increase compared with earnings of $4.8
million, or $0.39 per share a year earlier.
A highlight of this year's financial performance was the establishment of
consistent and growing profitability in every quarter.
ChiRex established a substantial drug substance development presence in the
United States to complement our well-established capability in Europe. We
opened a development facility in Boston in April and acquired Cauldron Process
Chemistry of Malvern, Pennsylvania, in May. The Boston facility is 18,000
square feet of analytical and development laboratories, and a kilo laboratory.
Located adjacent to Harvard University and MIT, the facility serves the large
and increasingly important drug discovery and development community in Boston
and enables the hands-on involvement of Scientific Advisory Board members Drs.
Jacobsen (Harvard), Buchwald (MIT) and Myers (Harvard). The location also
facilitates recruitment of talented chemists from the region's rich academic and
scientific communities. The Malvern facility is 23,000 square feet of
analytical and development laboratories, and a versatile cGMP pilot plant.
Located northwest of Philadelphia, the Malvern facility serves the development
and clinical trial needs of customers in the New Jersey to Delaware corridor.
ChiRex operates in two divisions: the development division and the manufacturing
division. Technology activities, including in-house and customer-sponsored
research and development, are managed within the development division, but
impact production in the manufacturing division. This divisional structure
recognizes the very different characteristics of each business
In development, organic chemistry is the core competency; in manufacturing,
engineering and regulatory compliance. In development, the typical transaction
is measured in hundreds of thousands of dollars; in manufacturing, millions and
tens of millions. In development, the customer purchase decision can take less
than three weeks and the project duration is typically less than three months.
In manufacturing, the purchase decision can take anywhere from six to 18 months
and involve as many as 60 people -- the production assignment can last years.
In the development arena, work is performed according to FDA standards, but not
routinely FDA-inspected. In manufacturing, plants must be FDA inspected and
qualified. The facilities themselves differ vastly. Development laboratories
may cost a few million to ten million dollars -- a manufacturing facility runs
to the hundreds of millions.
Development
ChiRex sales in the rapidly growing contract chemistry market grew 77%, from
$13.4 million in 1998 to $23.7 million in 1999. In addition, the development
division has facilitated a rapid acceleration of commercial opportunities for
our proprietary process chemistry technologies.
The number of billable chemists-on-the-bench in the development division rose
from 30 in 1998 to 65 in 1999. We expect to surpass 100 chemists in 2000, and
to add a West Coast development facility to serve a key biotechnology corridor
in the United States. In Malvern, ChiRex intends to invest up to $6 million to
double the revenue generating capacity of the facility in 2000, expanding the
pilot plant and adding labs to support a total of 30 chemists. In Boston, we
will spend approximately $3 million to open Phase 2 of our
2
<PAGE>
facility with expansion to 32 chemists in the first quarter and will begin Phase
3 expansion immediately, thereafter, to equip the site for up to 54 chemists by
2001.
Strengthening our development operations allows ChiRex to establish
relationships with more customers at an earlier stage of the product development
cycle. Such relationships have the potential to increase the flow of
opportunities for our manufacturing division, where fully three-quarters of
revenues in 1999 emanated from ChiRex development activities.
Manufacturing
The manufacturing division achieved significant improvements in operating
efficiency during 1999 through the application of our product management
philosophy, the right-sizing of costs and better plant configuration, loading
and scale. Significantly, manpower reductions at the Dudley and Annan
facilities lowered headcount by 23%, while overall productivity rose 50%.
During the year, ChiRex introduced seven new products from six customers to our
full-scale production facilities, and in 2000 we expect to add twelve more new
products from eight customers.
Also during 1999, we signed agreements with Sepracor Inc. -- and commenced
technology transfer and scale-up -- to produce active ingredients for three
substantial new products in the previously unutilized Annan 3 production
building. In 2000, we expect to produce up to eight products for four customers
from our Annan site.
Related to our work with Sepracor, and drawing upon our experience with new
product launches over the prior 18 months, the manufacturing division developed
and implemented the New Product Introduction (NPI) process. The NPI process
creates a framework for pharmaceutical and biotechnology companies to avail
themselves of a lean manufacturing environment by eliminating layers of
organizational infrastructure associated with product launch, including the
careful coordination of required resources such as manufacturing, labor, FDA
regulatory support and documentation, engineering, quality and safety. The NPI
process should hold considerable appeal to a growing number of pharmaceutical
companies that will come to rely on contract manufacturers to guide outsourced
products successfully through the complex and critical pharmaceutical product
launch activities.
Underscoring the valuable link between development and manufacturing activities
at ChiRex, the acquisition of the Cauldron facility in Malvern has already
generated more than $5 million of customer orders for the manufacturing
division, the majority through graduation of pilot-scale activity at Malvern to
commercial-scale at our Dudley, England, and Annan, Scotland, manufacturing
facilities.
The NPI process and the plant facilities give ChiRex an advantage in the supply
of API's by providing seamless internal technology transfer from our development
division to our manufacturing division.
Technology
The development division's process technology activities generate three revenue
streams: contract process research and development, sales of chiral building
blocks manufactured using our proprietary process chemistry technology, and
royalties for use of patents. Furthermore, our technologies allow us to stay on
the leading edge of chemistry, bring innovative chemistry solutions to our
customers and foster a culture of chemistry excellence.
During 1999, ChiRex received an exclusive license from Harvard University for
Professor Eric Jacobsen's Asymmetric Amino Acid technology. The technology
enables the manufacture of natural and unnatural amino acids and derivatives.
These products allow ChiRex to participate in the area of biomimetic
intermediates -- a category particularly important to genomics-based product
development.
ChiRex scaled-up our proprietary Hydrolytic Kinetic Resolution process
technology (Jacobsen) and produced key chiral building blocks in hundreds-of-
kilogram quantities. ChiRex holds these building blocks in stock for rapid
response to customer needs.
3
<PAGE>
This past year, there were clear indications that our substantial investment in
proprietary technology is beginning to pay returns. Customers -- sometimes
unsolicited -- specifically requested the application of our proprietary
technology to their development challenges. And an increasing proportion of our
scale-up work on these technologies is now done in concert with a customer
application. Today, 30% of our development division activities involve the use
of our proprietary technologies.
Management
Formation of the two operating divisions was a primary driver for changes in
management at ChiRex this past year. Bruce P. Shutts joined ChiRex in July as
Vice President, Development, and was appointed President, Development Division,
in October. Bruce brings more than 25 years experience managing pharmaceutical
process research, development and manufacturing. Prior to joining ChiRex, Bruce
served as Vice President of Chemical Development at Schering-Plough Corporation,
where he directed the discovery, development and implementation of processes for
the manufacture of all new chemical candidates. He also supervised manufacture
of drug compounds for all preclinical and clinical programs, as well as managing
Schering-Plough's laboratory and pilot plant operations.
Also in October, Ian D. Shott, who joined ChiRex in 1998 as Chief Operating
Officer, was appointed President, Manufacturing Division. Ian has more than 20
years experience in the fine chemical industry, with an outstanding track record
in directing global multi-site manufacturing operations and guiding them to meet
growing market needs. Prior to joining ChiRex, Ian served as General Manager of
Exclusive Fine Chemicals and Head of International Supply Chain Management at
Lonza Fine Chemicals, one of the world's largest pharmaceutical contract
manufacturing firms.
Dr. Roger Pettman was promoted to Vice President, Technology, with worldwide
responsibility for ChiRex proprietary research programs. Roger's responsibility
extends to both in-house and customer projects.
Professor Andrew G. Myers of Harvard University was appointed to the ChiRex
Scientific Advisory Board in September 1999. He is a recognized leader in the
synthesis of complex molecules. Andy's creativity and knowledge of organic
chemistry have had an immediate impact, enabling ChiRex to identify new routes
toward the development of key opportunities for two of our customers.
Thomas I.H. Dubin joined ChiRex as Vice President, Secretary and General
Counsel. Tom previously served as Assistant General Counsel, Corporate Affairs,
for Warner-Lambert Company and had formerly been with Cravath, Swaine & Moore.
Tom brings a blend of pharmaceutical industry and corporate law experience,
crucial to structuring R&D and commercial collaboration agreements, strategic
partnerships, and establishing and maintaining our intellectual property
portfolio.
ChiRex expanded its business development staff from two professionals to six to
support growth and business diversification objectives for the coming year. In
2000, ChiRex will add a West Coast business development presence and formalize a
business development relationship in Asia.
GlaxoWellcome
In the fourth quarter of 1999, ChiRex and GlaxoWellcome announced a downward
revision of demand for two intermediates manufactured for GlaxoWellcome under a
five-year supply agreement signed in 1997. The reduction will have an adverse
impact on 2000 revenues and earnings. Under the terms of the 1997 supply
agreement, GlaxoWellcome is seeking to replace the lost value of these two
intermediates. To date, GlaxoWellcome has identified several products which it
will re-allocate to ChiRex in an effort to make up for the shortfall. Lead
times required for re-allocation, however, will extend beyond 2000. Today,
ChiRex manufactures 10 products for this active and valued customer.
Sincerely,
Michael A. Griffith
February 23, 2000
4
<PAGE>
Goals 2000
Corporate
. Double commercial proposal rate from 100 to 200
. Substantially diversify product and customer mix
. Resolve GlaxoWellcome contract gap
Development Division
. Double the capacity of the Boston and Malvern facilities
. Expand to more than 100 chemists-on-the-bench
. Open a pilot plant at Annan
. Establish a west coast U.S. development facility
. Identify a development facility opportunity in continental Europe
. Enter into collaborations to accelerate commercial development of
technologies
. Selectively extend drug substance capabilities and add drug product
capabilities
Manufacturing Division
. Introduce 12 new products to manufacturing facilities
. Continue investment in lean manufacturing.
. Achieve 50% utilization of manufacturing assets.
Goals Met 1999
. Deliver consistent profitability every quarter
-- Recorded above-expectation profits in every quarter.
. Establish a U.S. development facility in Boston
-- ChiRex opened a Boston facility on April 1, 1999, and generated $1.2
million in revenues during 1999.
. Expand the number of chemists on-the-bench
-- ChiRex had 64 chemists on-the-bench at year end 1999.
. Acquire a U.S. development business
-- ChiRex acquired Cauldron Process Chemistry in Malvern, Pennsylvania,
on May 17, 1999.
. Identify and contract a large product at Annan 3
-- ChiRex agreed to produce three active ingredients for Sepracor Inc.
. Acquire and develop new technologies
-- ChiRex acquired the Jacobsen Asymmetric Amino Acid technology.
5
<PAGE>
Development
The new technologies of pharmaceutical discovery -- genomics, proteomics,
combinatorial chemistry, high-throughput screening -- are creating unprecedented
numbers of potential drug candidates for pharmaceutical and biotechnology
companies. So many, in fact, they threaten to overwhelm the development
capacity of the companies behind the discoveries.
ChiRex has invested aggressively to expand its development capabilities in North
America and Europe. ChiRex now has the critical mass of talented chemists and
full complement of world class facilities to help meet the rapidly growing
demand for additional pharmaceutical development capacity. Creation of the
development division this year has provided the management focus and customer
support infrastructure to market and deliver the full range of ChiRex
development services.
The cGMP development capabilities in Boston, Malvern and Dudley strongly
complement ChiRex proprietary process technology and contract manufacturing
services. Chemists working in every chemistry competency offer customers the
complete range of development capabilities and services: new product
development using novel technology; contract process research and development
including synthesis design, route development and optimization; analytical
development and validation; rapid response to preclinical and clinical trial
supply needs; regulatory compliance and support; scale-up of drug substance; and
technology transfer to manufacturing. The development division is also charged
with scaling-up ChiRex proprietary process chemistry technologies and
establishing them in commercial use.
The ChiRex development division has significant advantages over present and
potential competitors. In addition to working with traditional chemistries,
ChiRex can build upon its proprietary technology platforms with their advantages
of lower cost starting materials, higher yields and faster routes to final
compounds. The development division links a culture of innovation with the
industrial ruggedness of our manufacturing division. Each project in
development is assigned a Product Manager. It is this manager's job to act as a
communications conduit between ChiRex development, manufacturing, and the
customer. It is this uninterrupted passage of information among all concerned
that insures the projects' seamless transfer from the bench to manufacturing and
eventual delivery to customers anywhere in the world.
6
<PAGE>
ChiRex Development Division Facilities
<TABLE>
<CAPTION>
1999 2000
Site Resources Date Chemists-on-the-bench
<S> <C> <C> <C> <C>
Dudley, England Research Laboratories June 1996 32 40
Kilo Laboratory
Pilot Plant
Boston, Massachusetts Research Laboratories April 1999 19 32*
Kilo Laboratory
Malvern, Pennsylvania Research Laboratories May 1999 13 30
Kilo Laboratory
Pilot Plant
Annan, Scotland Research Laboratories 2Q 2000 1 6
Pilot Plant
65 108
</TABLE>
* We plan to complete physical expansion to house a total of 54 chemists by year
end to be added during 2001
7
<PAGE>
Manufacturing
Some believe pharmaceutical manufacturing is a dauntingly complex process which
- -- with difficult chemistry and regulatory involvement -- does not lend itself
to the speed and efficiency found in the manufacturing processes of other
industries.
In the ChiRex manufacturing division, we are confident that we can move faster
and more productively than our competitors. ChiRex accepts the challenge of
chemical complexity and takes an intelligent, proactive approach to compliance.
ChiRex is discovering ways to introduce speed and increase productivity in the
pharmaceutical manufacturing process -- to the benefit of both ChiRex and our
customers.
The rate of right-first-time production in the manufacturing division is
demonstrated at 97%. The scrap rate is less than 1%.
Production uptime or equipment availability, is demonstrated at 98%.
ChiRex has cut the turnaround time on manufacturing proposals to customers to
two weeks, compared with an industry norm extending to months.
The manufacturing division has developed the site master plans and identified
methods that would double to triple the output of our existing facilities--
efficiently making more capacity available to our customers, and more value
available to our shareholders.
ChiRex counts 30 of the 40 largest pharmaceutical companies and more than 25
small pharmaceutical companies among its development and manufacturing
customers. The company today manufactures 22 active pharmaceutical ingredients
and 23 advanced intermediates in our Annan, Scotland, and Dudley, England,
facilities, and completes over 10 contract chemistry projects per month.
Since 1995, ChiRex has invested more than $275 million to acquire, renovate and
upgrade the flexibility of both Annan and Dudley. Purchased from GlaxoWellcome
in 1997, Annan is one of the best-equipped cGMP manufacturing facilities in the
world with 150 cubic meters of capacity in three production buildings occupying
27 acres of a 154 acre site. Dudley, a former Sterling Drug facility, has 650
cubic meters of capacity in two main production buildings on a 45 acre site.
These two state-of-the-art pharmaceutical manufacturing facilities provide
ChiRex with excellent capacity and room for growth.
8
<PAGE>
New Product Introduction Process
ChiRex has created the New Product Introduction (NPI) process to apply the
efficiencies inherent in outsourcing across more aspects of the new product
launch process -- everything from engineering, training and information systems
to regulatory documentation.
In the NPI process, an NPI manager acts as the customer's advocate inside ChiRex
and ChiRex acts as the new product launch arm for its customer.
The NPI and Product Management process relies on expert-to-expert communication
to provide accurate information for decision support. ChiRex experts in
quality, chemistry, safety, manufacturing and engineering communicate directly
with experts at the customer organization. Together they identify program
issues and proceed to quick resolution. Rapid and clear communication is
essential to the success of the NPI process and we make such communication an
integral part of the process.
ChiRex appoints a Product Manager to oversee the entire product launch and to
oversee the ultimate routine production post-launch. The Product Manager
maintains daily communication with the customer. A weekly briefing tracks
progress milestones and identifies forward-looking issues. A monthly document
to customer management addresses strategic issues, changes of scope and new
opportunities for improvement. This process of frequent and clear communication
accelerates decision making and eliminates dead time, which in turn compresses
time throughout the product launch program.
9
<PAGE>
Technology
Technology needs an advocate -- someone willing to invest to transform
scientific discoveries into functioning industrial tools. ChiRex is a strong
advocate for the improvement of contract process research and development and
contract manufacturing, through the use of novel process technology.
ChiRex has identified several key process chemistry technologies that can
significantly improve the way our customers develop and manufacture
pharmaceuticals. Technologies capable of saving time and money, and producing
more effective drugs with fewer side effects. Technologies that, in concert
with our full range of development and manufacturing capabilities, clearly
differentiate ChiRex from its competitors.
ChiRex has assembled eight bundles of proprietary process chemistry technology
based on selective catalytic reactions, which, coupled with our expertise in
organic synthesis, enable us to quickly create a diverse array of pharmaceutical
intermediates and active pharmaceutical ingredients.
We have invested substantially in the exclusive licensing, development and
scale-up of these technologies. To date, we have scaled-up five of the eight
with the goal of providing building blocks off-the-shelf for rapid response to
customer preclinical and clinical trial needs. The technologies will also
enable ChiRex to provide the route our customers needs.
ChiRex also values the minds behind these technologies. ChiRex has recruited
two of the inventors -- Professors Eric Jacobsen and Stephen Buchwald -- onto
our Scientific Advisory Board. We have made facilities available to them to
assist in their guidance of the future development and application of their
technologies.
These scientists and the talented chemists they direct add value to our
intellectual property -- and to that of our customers -- beyond the merits of
our technology alone. The value of ChiRex is not just its proprietary
technology and its hands, it is how we think and what we contribute to the
solution of our customer challenges. As we apply our technologies, we are
developing creative new routes for customers to make their compounds. We are
enabling blind-prospect customers to make products they have been unable to make
on their own. We are providing our chiral building blocks and catalysts earlier
in the customer research and development process, generating greater benefits to
our customers and to ChiRex.
10
<PAGE>
CHIREX INC.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Management's Discussion and Analysis of Results of Operations
and Financial Condition 2
Report of Independent Public Accountants 8
Consolidated Balance Sheets as of December 31, 1998 and 1999 9
Consolidated Statements of Operations and Comprehensive Operations for the years ended
December 31, 1997, 1998 10
and 1999
Consolidated Statements of Cash Flows for the years ended December 31, 1997, 1998
and 1999 11
Consolidated Statements of Stockholders' Equity for the years ended December 31, 1997, 1998
and 1999 12
Notes to Consolidated Financial Statements 13
</TABLE>
11
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
The following discussion and analysis should be read in conjunction with the
consolidated financial statements and the notes thereto included herein.
Introduction
ChiRex Inc., The Drug Substance Company, is an integrated pharmaceutical
outsourcing company that provides contract process research and development
(contract chemistry) and contract manufacturing of active pharmaceutical
ingredients. The Company owns a widely-applicable portfolio of proprietary
process chemistry patents. The Company operates through two operating
divisions, the development division and the manufacturing division. The
Company's development division is engaged in every aspect of drug substance
development from discovery support before submission of IND (Investigational New
Drug) and process research and development and manufacture of active ingredients
for clinical trials. The Company's manufacturing division produces bulk active
pharmaceutical ingredients. Together, the two divisions span all of the steps
needed to prepare the Drug Substance subsection of a FDA New Drug Application.
The range of services provided by the company include:
o proprietary process research to create and produce previously unaffordable
chiral materials using the Company's patented process chemistry technologies,
and production of unique proprietary building blocks that aid in drug discovery;
o customer-sponsored innovative process research to solve process chemistry
challenges using either traditional chemistry techniques or proprietary
techniques;
o process research and development including discovery support, route design,
route development and synthesis of pre-clinical and clinical molecules;
o scale-up of clinical trial quantities of active pharmaceutical ingredients
including laboratory synthesis, validated process demonstration, analytical
methods development, hazard evaluation, and pilot plant production; and
o production of commercial-scale active ingredients for launch and later for
sale in all markets globally.
ChiRex conducts its operations in four FDA cGMP facilities in Boston,
Massachusetts; Malvern, Pennsylvania; Dudley, England; and Annan, Scotland.
On May 17, 1999, the Company purchased the Cauldron Process Chemistry business
in Malvern, Pennsylvania ("Cauldron" or "Malvern") a leader in the provision of
rapid-response process research and development for the pharmaceutical industry.
The Cauldron business significantly expands the Company's process research and
development capabilities in the United States, adds to its customer base and
provides a critically important customer service. The Company paid
approximately $6.9 million in cash including transaction costs. The asset
purchase agreement calls for an additional payment in February 2000 based on
Cauldron achieving certain 1999 business results. Following the purchase,
Cauldron's largest customer ceased doing business with Cauldron and quality and
related issues were encountered by two significant customers. The targeted
results were not achieved and consequently the Company has determined no
additional payment is due. The acquisition has been accounted for as a purchase,
and accordingly the operating results of Cauldron have been included in the
Company's consolidated financial statements from the date of acquisition. The
Company recorded goodwill of approximately $5.3 million associated with the
acquisition which is being amortized on a straight-line basis over 15 years.
On October 31, 1997, the Company completed the purchase of a GlaxoWellcome
("Glaxo") FDA cGMP pharmaceutical production facility located in Annan,
Scotland. The Company paid approximately $66.8 million (40.0 million) for the
facility plus an additional payment for certain working capital of approximately
$1.7 million ((Pounds)1.0 million). As part of the transaction, Glaxo awarded
the Company a five-year contract to supply certain pharmaceutical intermediates
and active ingredients. ChiRex purchased all of the buildings, land and
equipment at the 154-acre Annan, Scotland property, encompassing three main
production facilities plus certain working capital. The Company has invested
approximately $24 million and $10 million in 1998 and 1999, and plans to invest
an additional $15 million in 2000 to accommodate newly contracted products and
to continue the modification of the facility for multi-product pharmaceutical
fine chemical manufacturing. Under the supply agreement, ChiRex has
manufactured seven products at Annan
12
<PAGE>
and Dudley. The acquisition has been accounted for as a purchase and,
accordingly, the operating results of the Annan facility have been included in
the Company's consolidated financial statements from the date of acquisition.
In April 1997, the Company disposed of its acetaminophen (paracetamol)
business and in September 1997, the Company ceased production of acetaminophen.
At the time of the disposition, acetaminophen was the largest volume product
manufactured by the Company, representing approximately 31% of the Company's
1996 pro-forma revenues, but was not highly profitable at the gross margin
level. In connection with the disposition of the business, the Company recorded
an $8.1 million pre-tax restructuring charge net of proceeds on disposition in
the second quarter of 1997. The Company's decision to dispose of its
acetaminophen business was based on a number of factors, including the
continued domination of the acetaminophen business by high volume, low cost
manufacturers and the expectation that the market price of acetaminophen would
continue to erode.
A significant portion of the Company's revenues and expenses are denominated
in Great Britain pounds sterling, and to prepare the Company's financial
statements such amounts are translated into US Dollars at average exchange rates
in accordance with generally accepted accounting principles. The average
exchange rate used to make this translation in 1997, 1998 and 1999 was $1.65,
$1.66 and $1.62, respectively, per (Pounds)1.00. Period-to-period changes in
exchange rates can affect the comparability of the Company's financial
statements.
Results of Operations
The following discussion contains forward-looking statements which involve
risks and uncertainties. The Company's actual results may differ significantly
from the results discussed in the forward-looking statements.
The table below sets forth the revenues by segment for the Company for the
years ended December 31, 1997, 1998 and 1999 (in thousands):
<TABLE>
<CAPTION>
Revenue by Segment 1997% 1998% 1999%
-------------- -------------- -------------
<S> <C> <C> <C> <C> <C> <C>
Manufacturing division $82,796 88.0% $106,263 88.8% $123,316 83.9%
Development division 11,304 12.0% 13,400 11.2% 23,673 16.1%
------- -------- --------
Total $94,100 $119,663 $146,989
======= ======== ========
</TABLE>
The table below sets forth revenues for all other products and acetaminophen for
the years ended December 31, 1997, 1998 and 1999 (in thousands):
<TABLE>
<CAPTION>
Revenues 1997% 1998% 1999%
-------------- -------------- -------------
<S> <C> <C> <C> <C> <C> <C>
All other products $74,897 79.6% $118,881 99.3% $146,989 100.0%
Acetaminophen 19,203 20.4% 782 0.7% - -
------- -------- --------
Total $94,100 $119,663 $146,989
======= ======== ========
</TABLE>
Years ended December 31, 1999 and 1998
Total revenues increased $27.3 million or 22.8%, to $147.0 million in 1999,
from $119.7 million in 1998. Manufacturing division revenues increased $17.1
million or 16.0% to $123.3 million from $106.3 million in 1998 as new products
were introduced and shipments under the Glaxo supply agreement increased, partly
offset by the decline in exchange rates from last year which reduced revenues by
$3.0 million as compared to 1998. During 1999, the manufacturing division
worked on several new products with the three most significant new products
contributing $15.2 million of revenues in 1999. Substantially all of the
manufacturing division's revenues in 1999 were generated from the manufacture
and sale of products. The Company expects manufacturing revenues to decline in
2000 due to lower shipments under the Glaxo supply agreement partly offset by
new-product introductions. Development division revenues increased by $10.3
million or 76.7% to $23.7 million from $13.4 million in 1998. This increase is
due to increased validation of new products during the year and, to a lesser
extent, the expansion of the division through formation of a development
operation in Boston, Massachusetts which opened in April 1999, and the
acquisition of the Cauldron Process Chemistry business in Malvern, Pennsylvania
in May 1999. The development division's
13
<PAGE>
revenues in 1999 were generated from the manufacture and sale of products,
provision of services and receipt of license fee and royalty income. The Company
expects development revenues to increase in 2000 due to the expansion of the
Boston and Malvern facilities and further increase in validation services
associated with new product introduction.
Cost of goods sold increased $5.9 million, or 6.7%, to $93.8 million in 1999
from $87.9 million in 1998. This increase is due to the higher volume of
manufacturing sales and the expansion of the development division. Gross margin
percentage increased to 36.2% in 1999 from 26.6% in 1998 due to higher margin
new product sales, cost reductions resulting from the restructuring during the
second half of 1998, manpower reductions in 1999, improvement in operating
performance in the manufacturing division and increasing revenue contribution
from the development division.
Research and development expenses increased $2.6 million, or 58.5%, to $7.0
million in 1999 from $4.4 million in 1998. This increase was due primarily to
the cost of additional research chemists and pilot plant costs to support the
new product pipeline and the formation of the Boston development operation,
which devoted chemist time to commercializing the Company's proprietary
technologies. The Company expects research and development expenses to decline
in 2000 as research chemists and pilot plant time are devoted to customer
projects, some of which should incorporate the Company's proprietary
technologies. The Company is committed to improving and expanding its research
and development activities.
Selling, general and administrative expenses increased $2.3 million, or 18.1%,
to $14.9 million in 1999 from $12.6 million in 1998. The increase is
attributable to additional costs associated with the formation of the Boston
development facility which opened in April 1999 and the acquisition of the
Cauldron business in May 1999. Excluding the impact of Boston and Malvern,
selling, general, and administrative expenses declined $0.3 million or 2.1%
reflecting the restructuring during the second half of 1998 and manpower
reductions in 1999. The Company expects selling, general and administrative
expenses to increase in 2000 due to expenses associated with its new management
information software system and the substantial expansion of its business
development effort.
Amortization of goodwill increased $0.2 million to $1.4 million in 1999 from
$1.2 million in 1998. The increase is due to amortization of the $5.3 million
of goodwill recognized from the acquisition of Cauldron in May 1999. The
Company expects amortization of goodwill to increase in 2000 due to the full-
year recognition of amortization of goodwill resulting from the acquisition of
the Cauldron business.
In 1999, the Company recorded a pre-tax charge as part of manpower reductions
and outsourcing initiatives at its Dudley, England and Annan, Scotland
facilities. As a result, a total of 104 positions were eliminated by year-end
1999. The Company recorded a pre-tax charge for severance and pension benefits
of $7.4 million included in restructuring and other expenses.
Interest expense was $5.9 million in 1999 compared to $5.8 million in 1998.
The increase is due to higher non-cash amortization of deferred financing costs
and greater capitalization of interest in 1998 partly offset by lower average
borrowing levels in 1999 resulting from the proceeds from the stock issuance in
March 1999. The Company expects interest expense to be lower in 2000 because
of lower borrowing levels and reduced amortization of deferred financing costs.
Provision for income taxes was $5.8 million in 1999, an effective tax rate of
35.2% compared to $2.4 million in 1998, an effective tax rate of 52.3%. The
effective tax rate is lower due to higher income in the UK which is taxed at a
lower incremental tax rate and because the effective rate in 1998 reflected
incremental non-deductible charges.
In 1999, the Company modified and refinanced its 1997 Facilities Agreement
with its lenders. As a result the Company recorded a pre-tax charge of $2.1
million to write off certain deferred financing costs associated with the 1997
Facilities Agreement (see note 7) which is classified as an extraordinary loss
on the statement of operations net of $0.6 million in benefit for income taxes,
or $(0.10) per basic and diluted share.
As a result of the factors described above, net income was $9.3 million in
1999, compared to net income of $2.2 million in 1998, an increase of 329.1%.
14
<PAGE>
Years ended December 31, 1998 and 1997
Total revenues increased $25.6 million or 27.2%, to $119.7 million in 1998,
from $94.1 million in 1997. Manufacturing division revenues increased $23.5
million or 28.3% to $106.3 million from $82.8 million in 1997 as new products
were introduced and shipments under the Glaxo supply agreement increased, partly
offset by the unfavorable effect on revenues from the sale of the acetaminophen
business which contributed $19.2 million in 1997 or 20.4% of total revenues.
Revenues from existing products increased $36.6 million and seven new products
contributed $5.3 million of revenues in 1998. Substantially all of the
manufacturing division's revenues in 1998 were generated from the manufacture
and sale of products. Development division revenues increased by $2.1 million
or 18.5% to $13.4 million in 1998 from $11.3 million in 1997. This increase is
due to validation activity associated with new product introduction. The
development division's revenues in 1998 were generated from the manufacture and
sale of products, provision of services and receipt of license fee and royalty
income.
Cost of goods sold increased $16.4 million, or 23.0%, to $87.9 million in 1998
from $71.4 million in 1997. This increase is due to the higher volume of new
products and expenses associated with new product introductions, partly offset
by lower acetaminophen product sales. Gross margin percentage increased to
26.6% in 1998 from 24.1% in 1997 due to higher margin new product sales and
because 1997 cost of goods sold included $1.2 million in reserves recorded for
certain inventory, partly offset by the under-utilization of the Annan facility
in 1998 acquired in the fourth quarter of 1997.
Research and development expenses increased $0.5 million, or 11.5%, to $4.4
million in 1998 from $3.9 million in 1997. This increase was due primarily to
the cost of additional research chemists and pilot plant costs to support the
new product pipeline partly offset by lower technology support expenses.
Selling, general and administrative expenses increased $3.2 million, or 34.0%,
to $12.6 million in 1998. The increase is attributable to additional costs
associated with the Annan facility acquired in the fourth quarter of 1997,
senior management recruitment expenses and costs associated with the formation
of the Boston development facility.
The Company announced in July 1998, a restructuring including management
changes and the transition to a product management structure. As a result, the
Company recorded a pre-tax restructuring charge of $2.9 million for severance
costs related to management changes and $0.3 million of other costs.
Interest expense was $5.8 million in 1998 compared to $1.1 million in 1997.
This is a result of higher borrowing levels resulting from the acquisition of
the Annan facility in the fourth quarter of 1997.
Provision for income taxes was $2.4 million in 1998, an effective tax rate of
52.2% compared to a benefit for income taxes of $0.3 million in 1997, an
effective tax rate of 34.0%. The effective tax rate in 1998 is greater then
1997 primarily due to incremental non-deductible charges incurred during 1998.
As a result of the factors described above, net income was $2.2 million in
1998, comparable to a net loss of $0.7 million in 1997.
Liquidity and Capital Resources
Cash provided from operations was $20.0 million in 1999. The Company
generated $23.4 million in cash from operations before $3.4 million of cash
restructuring charges paid in 1999. Operating working capital increased $18.7
million in 1999 primarily due to an increase in accounts receivable due to
payments subsequently collected in January 2000, and a decrease in accounts
payable and accrued expenses reflecting payments in 1999 of December 1998
capital expenditure and deferred financing balances. This was partly offset by
a $4.0 million reduction in inventories. Earnings before interest, taxes,
depreciation and amortization were $46.5 million in 1999, an increase of $ 20.4
million from 1998, or 78.1%.
Cash provided from operations was $22.4 million in 1998. The Company generated
$24.2 million in cash from operations before $1.8 million of cash restructuring
charges incurred in 1998. Operating working capital decreased $3.0 million in
1998 primarily due to a decrease in accounts receivable.
15
<PAGE>
Net cash used in investing activities was $28.4 million in 1999, consisting of
capital spending for the completion of the modification of the Annan facility
for multi-product pharmaceutical fine chemical manufacturing, capacity expansion
for new products, maintenance capital expenditures at the Dudley facility and
build-out and equipment for the Boston development facility. In addition, $6.9
million was spent on the acquisition of Cauldron.
Net cash used in investing activities was $41.1 million in 1998, consisting of
capital spending for the modification of the Annan facility for multi-product
pharmaceutical fine chemical manufacturing, capacity expansion for new products
and maintenance capital expenditures at the Dudley facility.
Net cash generated from financing activities in 1999 was $12.8 million as
proceeds from issuance of common stock in March 1999 of $51.1 million and
proceeds from the exercise of stock options and the UK employee stock purchase
plan of $4.4 million were used to reduce borrowings outstanding on the Company's
term-loan and revolving-credit facilities by $40.4 million.
Net cash generated from financing activities in 1998 was $13.4 million
primarily from additional borrowings on the Company's term-loan and revolving-
credit facilities. The Company also received $0.9 million in proceeds from the
exercise of stock options in 1998.
In December 1999, the Company refinanced its senior secured term-loan and
revolving credit agreement with a group of banks allowing it to borrow up to
$89.1 million ((Pounds)55.0 million at December 31, 1999) for a five-year period
(the "1999 Facilities Agreement"). As of December 31, 1999, $48.6 million
((Pounds)30.0 million) in borrowings were outstanding under the 1999 Facilities
Agreement and $40.5 million ((Pounds)25.0 million) was available under the
revolving-credit facility of the 1999 Facilities Agreement.
The Company believes that the funds generated from operations and funds
available under the 1999 Facilities Agreement will be sufficient to expand and
grow its business in accordance with its current plans. The Company's ability
to make acquisitions and to meet its long-term capital requirements and
obligations in 2000 and beyond will depend on many factors, including but not
limited to, the rate, if any, at which the Company's cash flow increases, the
ability and willingness of the Company to accomplish acquisitions with its
capital stock and the availability to the Company of public and private debt and
equity financing. No assurance can be given that additional financing, if
required, will be available or that if available, it will be available on terms
favorable to the Company. The Company anticipates capital expenditures will be
approximately $25 million during 2000.
Foreign Currency
For 1997, 1998 and 1999, net sales of the Company's products outside the
United States totaled approximately $93 million, $119 million and $139 million,
representing 99%, 99% and 95% of the Company's net revenues for those years.
The Company currently expects revenues from its products outside the United
States will continue to be a substantial percentage of its net revenues. The
Company believes it has a natural cash currency hedge because its operating
expenses and revenues tend to be denominated in matched currencies. Also the
Company has partly offset foreign currency-denominated assets with foreign
currency-denominated liabilities.
Financial results of the Company could be adversely or beneficially affected
by fluctuations in foreign exchange rates. Fluctuations in the value of foreign
currencies will affect the U. S. dollar value of the Company's net investment in
its foreign subsidiaries, with related effects included in a separate component
of stockholders' equity titled cumulative translation adjustment. In 1999, the
cumulative translation adjustment declined $2.6 million due to the reduction in
the Great Britain pounds sterling exchange rate to $1.62 to (Pounds)1.00 at
December 31, 1999 from $1.66 to (Pounds)1.00 at December 31, 1998. Operating
results of foreign subsidiaries are translated into U.S. dollars at average
monthly exchange rates and balance sheet amounts are translated at period-end
exchange rates. In addition, the U.S. dollar value of transactions based in
foreign currency also fluctuates with exchange rates. The Company expects that
the largest foreign currency exposure will result from activity in Great Britain
pounds sterling, Euros, and U.S. dollars.
16
<PAGE>
Year 2000 Disclosure
The Company has dedicated internal resources to identify and resolve "Year
2000" compliance issues with respect to computer systems and applications
utilized by the Company. The Company has also engaged external resources,
including hiring an independent consulting firm, and has purchased necessary
computer software upgrades to become year 2000 compliant. The Company developed
and performed comprehensive testing procedures once necessary software and
equipment had been installed to validate year 2000 compliance. The Company
implemented a year 2000 compliant management information system at all locations
in 1999. The Company expects to spend approximately $7.1 million on systems and
equipment, which are year 2000 compliant and will account for these costs in
accordance with current accounting guidance.
The Company believes that the systems at two of the three production
facilities at Annan are year 2000 compliant. At present, the Company is not
utilizing the third production facility at Annan but has plans to commence
operations at this facility in 2000. The Company expects to spend approximately
$1.7 million upgrading the facility's computer systems and applications and will
account for these costs in accordance with current accounting guidance.
The Company experienced no significant Year 2000 issues in January 2000. No
assurance can be given that Year 2000 compliance issues will not materialize
and be resolved without future disruption or that the Company will not incur
significant additional expense.. In addition, the failure of certain of the
Company's significant suppliers and customers to address the Year 2000
compliance issues could have a material adverse effect on the Company.
New Accounting Pronouncements
In June 1998, Statement of Financial Accounting Standards ("SFAS"), No. 133,
"Accounting for Derivative Instruments and Hedging Activities," was issued.
SFAS No. 133 establishes accounting and reporting standards for derivative
instruments embedded in other contracts, (collectively referred to as
derivatives) and for hedging activities. It requires that an entity recognizes
all derivatives as either assets or liabilities in the statement of financial
position and measure those instruments at fair value. If certain conditions are
met, a derivative may be specifically designated as (a) a hedge of the exposure
to changes in the fair value of a recognized asset or liability or an
unrecognized firm commitment, (b) a hedge of the exposure to variability in cash
flows attributable to a particular risk, or (c) a hedge of the foreign currency
exposure of a net investment in a foreign operation, an unrecognized firm
commitment, an available for sale security and a forecasted transaction. SFAS
No. 137, "Accounting for Derivative Instruments and Hedging Activities-Deferral
of the Effective Date of FASB Statement No. 133" was issued in June 1999 and
deferred the effective date of SFAS No. 133 to fiscal years beginning after June
15, 2000. Consequently, the Company will be required to implement SFAS No. 133
for all fiscal quarters for the fiscal year beginning January 1, 2001. The
Company expects the adoption of this pronouncement will not have a material
effect on the Company's financial statements.
17
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Stockholders and Board of Directors of ChiRex Inc.:
We have audited the accompanying consolidated balance sheets of ChiRex Inc. (a
Delaware corporation) and its subsidiaries as of December 31, 1998 and 1999, and
the related consolidated statements of operations, comprehensive operations,
stockholders' equity and cash flows for each of the three years in the period
ended December 31, 1999. These consolidated financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these consolidated financial statements based on our audits.
We conducted our audit in accordance with auditing standards generally
accepted in the United States. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether the consolidated
financial statements are free of material misstatement. An audit includes
examining, on a test basis, evidence supporting the amounts and disclosures in
the financial statements. An audit also includes assessing the accounting
principles used and significant estimates made by management, as well as
evaluating the overall financial statement presentation. We believe that our
audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of ChiRex Inc.
and its subsidiaries as of December 31, 1998 and 1999, and the results of its
operations and its cash flows for each of the three years in the period ended
December 31, 1997, 1998 and 1999 in conformity with accounting principles
generally accepted in the United States.
ARTHUR ANDERSEN LLP
Boston, Massachusetts
February 3, 2000
18
<PAGE>
CHIREX INC.
CONSOLIDATED BALANCE SHEETS
(dollars in thousands except per-share amounts)
<TABLE>
<CAPTION>
As of December 31,
----------------------
1998 1999
-------------- -------------
ASSETS
- ------
Current assets:
<S> <C> <C>
Cash $ 128 $ 4,480
Trade and other receivables 16,285 31,096
Inventories 32,295 27,503
Other current assets 4,012 5,323
-------- --------
Total current assets 52,720 68,402
Property, plant and equipment, net 154,070 163,147
Intangible assets, net 26,398 30,286
Other assets 5,350 1,215
-------- --------
Total Assets $238,538 $263,052
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
- ------------------------------------
Current liabilities:
Accounts payable $ 15,123 $ 8,763
Accrued expenses 17,122 16,071
Current portion of long-term debt 14,756 9,720
Current portion of capital-lease obligations - 1,683
Income taxes payable 389 1,530
-------- --------
Total current liabilities 47,390 37,767
Long-term debt 76,544 38,880
Deferred income taxes 10,640 14,487
Deferred income 6,751 7,599
Capital-lease obligations - 4,272
-------- --------
Total Liabilities 141,325 103,005
-------- --------
Commitments and contingencies - -
-------- --------
Stockholders' equity:
Preferred stock ($0.01 par value, 4,000,000 shares authorized;
none issued and outstanding in 1998 and 1999) - -
Common stock ($0.01 par value, 30,000,000 shares authorized; 11,881,377
and 15,173,290 issued and outstanding at December 31, 1998 and 1999) 119 152
Additional paid-in capital 102,354 158,453
Retained earnings (deficit) (9,243) 60
Cumulative translation adjustment 3,983 1,382
-------- --------
Total stockholders' equity 97,213 160,047
-------- --------
Total Liabilities and Stockholders' Equity $238,538 $263,052
======== ========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements
19
<PAGE>
CHIREX INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands except per-share amounts)
<TABLE>
<CAPTION>
For the Years Ended December 31
---------------------------------------------
1997 1998 1999
--------------- ------------- -------------
Revenues:
<S> <C> <C> <C>
Product sales $93,362 $119,210 $146,499
License fee and royalty income 738 453 490
------- -------- --------
Total revenues 94,100 119,663 146,989
------- -------- --------
Costs and expenses:
Cost of goods sold 71,440 87,876 93,800
Research and development 3,937 4,389 6,958
Selling, general and administrative 9,423 12,622 14,909
Goodwill amortization 1,164 1,164 1,383
Restructuring and other expenses, net of proceeds from
disposition of acetaminophen business in 1997 8,069 3,242 7,399
------- -------- --------
Total operating expenses 94,033 109,293 124,449
------- -------- --------
Operating income 67 10,370 22,540
Interest expense, net 1,052 5,829 5,934
------- -------- --------
Income (loss) before income taxes (985) 4,541 16,606
(Provision) benefit for income taxes 335 (2,373) (5,843)
------- -------- --------
Net income (loss) before extraordinary loss (650) 2,168 10,763
Extraordinary loss net of $633 thousand benefit for income taxes - - (1,460)
------- -------- --------
Net income (loss) $ (650) $ 2,168 $ 9,303
======= ======== ========
Net income (loss) per common share:
Basic $(0.06) $0.18 $0.65
======= ======== ========
Diluted $(0.06) $0.18 $0.62
======= ======== ========
Weighted average shares outstanding:
Basic 11,407 11,820 14,210
======= ======== ========
Diluted 11,407 12,330 15,031
======= ======== ========
</TABLE>
CONSOLIDATED STATEMENTS OF COMPREHENSIVE OPERATIONS
(in thousands)
<TABLE>
<CAPTION>
For the Years Ended December 31
----------------------------------------
1997 1998 1999
------------ ------------ ------------
<S> <C> <C> <C>
Net income (loss) $ (650) $2,168 $ 9,303
Change in cumulative translation adjustment (1,641) 383 (2,601)
------- ------ -------
Comprehensive income (loss) $(2,291) $2,551 $ 6,702
======= ====== =======
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements
20
<PAGE>
CHIREX INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
<TABLE>
<CAPTION>
For the Years Ended December 31
-------------------------------------------------
1997 1998 1999
--------------- --------------- ---------------
Cash flows from operating activities:
<S> <C> <C> <C>
Net income (loss) $ (650) $ 2,168 $ 9,303
Adjustments to reconcile net (loss) to cash provided by
Operating activities:
Depreciation & amortization 10,062 12,509 16,588
Non-cash restructuring and other expenses 7,743 1,463 3,938
Extraordinary loss - - 2,093
(Gain) loss on sale of assets 30 (40) 134
Proceeds from sale of acetaminophen (7,159) - -
Benefit (provision) for deferred income taxes (495) 2,767 2,885
Non-cash stock based compensation - - 511
Changes in assets and liabilities:
Trade and other receivables (6,500) 2,777 (14,338)
Inventories 2,749 (9,615) 4,038
Other current assets 947 673 1,091
Accounts payable and accrued expenses (562) 9,127 (9,479)
Income taxes payable (1,929) 51 1,201
Deferred income 517 2,402 970
Other assets and liabilities, net (500) (1,910) 1,065
-------- -------- --------
Net cash provided by operations 4,253 22,372 20,000
-------- -------- --------
Cash flows from investing activities:
Proceeds on sale of assets 4,100 54 8
Purchase of assets and transaction costs (69,495) - -
Purchase of business and transaction costs - - (6,897)
Capital expenditures (12,067) (41,183) (21,470)
-------- -------- --------
Net cash used in investing activities (77,462) (41,129) (28,359)
-------- -------- --------
Cash flows from financing activities:
Borrowings (payments) on term-loan and revolving credit
Facility, net 77,983 13,396 (40,435)
Proceeds from sale and leaseback transaction - - 2,016
Payments on capital-lease obligations - - (1,332)
Proceeds from the issuance of common stock 4,180 34 51,124
Proceeds from exercise of stock options and employee stock
Purchase plan 1,138 892 4,409
Payments on revolving line of credit, net (3,772) - -
Deferred financing costs (1,404) (875) (2,961)
-------- -------- --------
Net cash provided by financing activities 78,125 13,447 12,821
-------- -------- --------
Effect of exchange rate changes on cash 140 91 (110)
-------- -------- --------
Net increase (decrease) in cash 5,056 (5,219) 4,352
Cash at beginning of period 291 5,347 128
-------- -------- --------
Cash at end of period $ 5,347 $ 128 $ 4,480
======== ======== ========
Supplemental Cash Flow Information :
Cash paid for:
Interest, net of amounts capitalized $ 1,241 $ 5,945 $ 4,645
Income taxes paid (refunded), net $ 1,647 $ (432) $ 1,208
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements
21
<PAGE>
CHIREX INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
FOR THE YEARS ENDED DECEMBER 31, 1997, 1998 AND 1999
(in thousands)
<TABLE>
<CAPTION>
Additional Retained Cumulative Total
Common Stock Paid-In Earnings Translation Stockholders'
--------------
Shares Amount Capital (Deficit) Adjustment Equity
------ ------ ---------- ---------- ------------ --------------
<S> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1996 10,934 $109 $ 95,479 $(10,761) $ 5,241 $ 90,068
Net loss - - - (650) - (650)
Issuance of common stock, net 524 5 4,175 - - 4,180
Options exercised 335 4 1,134 - - 1,138
Translation adjustment - - - - (1,641) (1,641)
------ ---- -------- -------- ------- --------
Balance at December 31,1997 11,793 118 100,788 (11,411) 3,600 93,095
Net income - - - 2,168 - 2,168
Issuance of common stock, net - - 34 - - 34
Options exercised 88 1 891 - - 892
Effect of stock compensation charge - - 641 - - 641
Translation adjustment - - - - 383 383
------ ---- -------- -------- ------- --------
Balance at December 31,1998 11,881 119 102,354 (9,243) 3,983 97,213
Net income - - - 9,303 - 9,303
Issuance of common stock, net 2,876 29 51,095 - - 51,124
Options exercised and employee
stock purchase plan 416 4 4,405 - - 4,409
Issuance of stock options to
------ - -------- - ------- 599
non-employees - 599 -
Translation adjustment - - - - (2,601) (2,601)
------ ---- -------- -------- ------- --------
Balance at December 31, 1999 15,173 $152 $158,453 $ 60 $ 1,382 $160,047
====== ==== ======== ======== ======= ========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements
22
<PAGE>
CHIREX INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Nature of Operations and Summary of Significant Accounting Policies
Nature of Operations
ChiRex Inc. ("ChiRex" or the "Company") was incorporated in December 1995 and,
effective March 11, 1996 merged (the "Merger") with SepraChem Inc.
("SepraChem"), a chiral chemistry business established in November 1994 as a
wholly-owned subsidiary of Sepracor Inc. Simultaneously with the Merger
SepraChem changed its name to ChiRex America, Inc. ("ChiRex America") a wholly-
owned subsidiary of ChiRex. ChiRex operates through its direct and indirect
wholly-owned subsidiaries ChiRex (Holdings) Limited ("Holdings"), ChiRex
(Dudley) Limited ("Dudley"), ChiRex (Annan) Limited ("Annan"), ChiRex Technology
Center Inc. ("CTC") and ChiRex America. Holdings and CTC are wholly-owned
subsidiaries of ChiRex and Dudley and Annan are wholly-owned subsidiaries of
Holdings. Annan was formed in 1997 and CTC was formed in 1998. The assets of
Cauldron Process Chemistry in Malvern, PA ("Malvern") were acquired by CTC in
1999.
ChiRex Inc., The Drug Substance Company, is an integrated pharmaceutical
outsourcing company that provides contract process research and development
(contract chemistry) and contract manufacturing of active pharmaceutical
ingredients. The Company owns a widely-applicable portfolio of proprietary
process chemistry patents. The Company operates through two operating
divisions, the development division and the manufacturing division. The
Company's development division is engaged in every aspect of drug substance
development from discovery support before submission of IND (Investigational New
Drug) and process research and development and manufacture of active ingredients
for clinical trials. The Company's manufacturing division produces bulk active
pharmaceutical ingredients. Together, the two divisions span all of the steps
needed to prepare the Drug Substance subsection of a FDA New Drug Application.
The range of services provided by the company includes:
o proprietary process research to create and produce previously unaffordable
chiral materials using the Company's patented process chemistry technologies,
and production of unique proprietary building blocks that aid in drug discovery;
o customer-sponsored innovative process research to solve process chemistry
challenges using either traditional chemistry techniques or proprietary
techniques;
o process research and development including discovery support, route design,
route development and synthesis of pre-clinical and clinical molecules;
o scale-up of clinical trial quantities of active pharmaceutical ingredients
including laboratory synthesis, validated process demonstration, analytical
methods development, hazard evaluation, and pilot plant production; and
o production of commercial-scale active ingredients for launch and later for
sale in all markets globally.
ChiRex conducts its operations in four FDA cGMP facilities in Boston,
Massachusetts; Malvern, Pennsylvania; Dudley, England; and Annan, Scotland.
Principles of Consolidation and Basis of Presentation
The accompanying consolidated financial statements include the accounts of the
Company and its wholly-owned subsidiaries. All intercompany accounts and
transactions have been eliminated.
The consolidated financial statements of the Company include the historical
results of the Company and its subsidiaries from the date of acquisition or the
date of incorporation.
23
<PAGE>
Revenue Recognition
Product Sales
Product sales represent the invoiced value of goods and services, excluding
value added tax, supplied in the normal course of business. Revenues are
recognized as services are provided, goods are shipped, or certain milestones
are achieved.
The cost of specific equipment required to implement a new custom synthesis
process for a customer is incurred by the Company and included in fixed assets.
An engineering premium is sometimes charged to applicable customers, either by
installments or by an increment to the unit sales price, to recover an agreed
upon element of these costs. These revenues are generally recognized on a
systematic basis over the life of the project at the same rate as the
depreciation on the related fixed assets. In the event of termination of a
project the unamortized portion of the premium is released to income. The
difference between amounts invoiced during the year and revenue earned is
accounted for as deferred income.
License Fee and Royalty Income
License fee and royalty income is recognized as amounts are earned and become
due based on contract terms.
UK Government Grants
UK government grants for capital expenditures are credited to a deferred grant
account when received and are recognized as an offset to depreciation expense
over the expected useful life of the related property, plant and equipment.
Research and Development
Research and development costs are expensed as incurred.
Stock based Compensation Plans
With respect to stock options granted to employees, Statement of Financial
Accounting Standard No. 123, "Accounting for Stock-Based Compensation" ("SFAS
123"), permits companies to continue using the accounting method promulgated by
the Accounting Principles Board Opinion No. 25, "Accounting for Stock Issued to
Employees," ("APB 25") to measure compensation or to adopt the fair value based
method prescribed by SFAS 123. If a company continues to apply APB 25 for
accounting purposes, pro forma footnote disclosures are required to present net
income as if SFAS No. 123 accounting provisions were applied for accounting
purposes. The Company follows the provisions of APB 25 and has included the
required SFAS 123 pro forma disclosures.
Income Taxes
The Company accounts for income taxes in accordance with the liability method
as prescribed by SFAS No. 109, "Accounting for Income Taxes". The Company
recognizes deferred income taxes based on future tax consequences of differences
between the financial statement basis and the tax basis of assets and
liabilities, calculated using enacted tax rates in effect for the year in which
the differences are expected to be reflected in the tax return.
Net Income (Loss) per Common Share
The Company determines earnings per share in accordance with SFAS No. 128,
"Earnings Per Share". This statement establishes the standards for computing
and presenting earnings per share.
Basic income (loss) per common share was computed by dividing the net income
(loss) by the weighted
24
<PAGE>
average number of shares of common stock outstanding during the year. For the
years ended December 31, 1998 and 1999, the impact of assumed exercise of stock
options is included in diluted shares outstanding. Using the Treasury Stock
method, the Company calculates the potential dilution from stock options at the
average market stock price during the period based on the assumption that all
stock options are exercised whether vested or non-vested, and simultaneously the
proceeds of exercise are used to acquire the Company's stock at the average
market price. Since the effect of the assumed exercise of stock options of
581,000 shares in 1997 are anti-dilutive, basic and diluted loss per share as
presented on the statement of operations are the same. In 1998 and 1999, 510,000
and 821,000 common stock equivalents, respectively, related to stock options are
included in diluted shares outstanding.
Postretirement Benefits
In 1998, the Company adopted SFAS No. 132, "Employers' Disclosure About
Pensions and Other Postretirement Benefits." This statement changed current
financial statement disclosure requirements from those required under previous
accounting pronouncements. The statement does not change the existing
measurement or recognition provisions. The Company has included the required
disclosure requirements under this standard.
Inventories
Inventories are stated at the lower of cost or market value and include
materials, labor and manufacturing overhead. The components of inventories are
as follows:
<TABLE>
<CAPTION>
1998 1999
---- ----
(in thousands)
<S> <C> <C>
Raw materials $ 8,922 $ 8,877
Work in progress 11,024 13,936
Finished goods 12,349 4,690
------- -------
Total $32,295 $27,503
======= =======
</TABLE>
Property, Plant and Equipment
The costs of capital additions and improvements are capitalized, while
maintenance and repairs are expensed as incurred. The Company provides for
depreciation using the straight-line method over the estimated useful lives of
the property as follows: buildings 40 years; machinery and equipment 3 to 13
years; software 5 to 7 years.
Property, plant and equipment consists of the following:
<TABLE>
<CAPTION>
1998 1999
---- ----
(in thousands)
<S> <C> <C>
Land $ 6,092 $ 5,946
Buildings 29,088 37,421
Machinery and equipment 147,082 162,948
Computer software - 6,633
-------- --------
182,262 212,948
Less accumulated depreciation (28,192) (49,801)
-------- --------
$154,070 $163,147
======== ========
</TABLE>
Depreciation expense was $8,898,000, $11,345,000 and $15,205,000 for the years
ended December 31, 1997, 1998 and 1999, respectively.
Other Current Assets
At December 31, 1998 and 1999, other current assets consist primarily of
prepaid expenses and other miscellaneous non-trade receivables.
25
<PAGE>
Intangible Assets
Intangible assets primarily relate to the excess cost over the fair value of
net assets acquired. These intangible assets are being amortized using the
straight-line method over 15 - 25 years. Accumulated amortization at December
31, 1998 and 1999 was $3,252,000 and $4,635,000 respectively. The Company
assesses the future useful life of these assets whenever events or changes in
circumstances indicate that the current useful life has diminished. The Company
considers combined undiscounted cash flows in assessing the recoverability of
these assets. If impairment has occurred, any excess of carrying value over
fair value would be recorded as an impairment charge.
Foreign Currency
The accounts of the Company's UK subsidiaries are recorded in their functional
currency, Great Britain pounds sterling, and are translated into US dollars
using year-end exchange rates for assets and liabilities and average exchange
rates during the year for revenues and expenses. Resulting translation
adjustments are reflected as a separate component of stockholders' equity titled
cumulative translation adjustment. Foreign currency transaction gains and
losses are included in the accompanying statements of operations and are not
material for the three years presented.
Fair Value of Financial Instruments
The Company's financial instruments consist primarily of cash, accounts
receivable, accounts payable and a balance due under a term loan. Their
respective carrying amounts in the accompanying balance sheets approximate fair
value due either to the short-term nature of the balances or in the case of the
term loan because the interest rate is variable.
Use of Estimates
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities at the date of the
financial statements, and the reported amounts of revenues and expenses during
the reported period. Actual results could differ from those estimates.
Accounting For Long Lived Assets
The Company follows the provisions of SFAS No. 121, "Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed of ".
SFAS 121 requires that long-lived assets be reviewed for impairment by comparing
the fair value of the assets with their carrying amount. Any write-downs are to
be treated as permanent reductions in the carrying amount of the assets.
Environmental Costs
Liabilities for costs relating to environmental and remedial work which must
be performed to comply with environmental guidelines are recorded when it is
probable that obligations have been incurred and the amounts can be reasonably
estimated.
Segment Information
The Company follows the provisions of SFAS No. 131, "Disclosures about
Segments of an Enterprise and Related Information". This statement establishes
the standards for reporting information about segments in annual and interim
financial statements. The statement introduces a new model for segment
reporting, the "management approach". The management approach is based on the
way the chief operating decision-maker organizes segments within a company for
making operating decisions and assessing performance. The Company has included
the required disclosure requirements under this standard. The Company has two
reportable segments: the development division and the manufacturing division
(see note 12).
26
<PAGE>
Recently Issued Accounting Standards
In June 1998, SFAS No. 133, "Accounting for Derivative Instruments and Hedging
Activities," was issued. SFAS No. 133 establishes accounting and reporting
standards for derivative instruments and derivative instruments embedded in
other contracts, (collectively referred to as derivatives) and for hedging
activities. It requires that an entity recognize all derivatives as either
assets or liabilities in the statement of financial position and measure those
instruments at fair value. If certain conditions are met, a derivative may be
specifically designated as (a) a hedge of the exposure to changes in the fair
value of a recognized asset or liability or an unrecognized firm commitment,
(b) a hedge of the exposure to variability in cash flows attributable to a
particular risk, or (c) a hedge of the foreign currency exposure of a net
investment in a foreign operation, an unrecognized firm commitment, an available
for sale security and a forecasted transaction. SFAS No. 137, "Accounting for
Derivative Instruments and Hedging Activities-Deferral of the Effective Date of
FASB Statement No. 133" was issued in June 1999 and deferred the effective date
of SFAS No. 133 to fiscal years beginning after June 15, 2000. Consequently,
the Company will be required to implement SFAS No. 133 for all fiscal quarters
for the fiscal year beginning January 1, 2001. The Company expects the adoption
of this pronouncement will not have a material effect on the Company's financial
statements.
2. Significant Transactions
Stock Offering
In March 1999, the Company issued 2,875,000 shares (including 375,000 shares
issued to cover underwriters' over allotments) of the Company's common stock to
the public at $19 per share and received $54.6 million in gross proceeds. Total
net proceeds of $51.1 million after underwriter's discount and expenses were
utilized to pay down bank borrowings in March and April 1999.
Shelf Registration
In June 1999, the Company updated its filing with the Securities and Exchange
Commission to register for the sale of debt securities, preferred stock, common
stock and warrants, (representing rights to purchase debt securities, preferred
stock, common stock and warrants) with an initial offering price not to exceed
$104.6 million bringing the total securities available for registration to
$150.0 million at December 31, 1999.
Restructuring and Other Expenses
In April, June, and July 1999, the Company announced the outsourcing of the
Company's inventory warehouse operation and its management information systems
departments, and a voluntary redundancy and early-retirement program at its
Dudley, England and Annan, Scotland facilities. As a result, the Company
recorded a $7.4 million pretax charge during 1999 for severance and pension
benefits. A total of 104 positions were eliminated in 1999. As of December 31,
1999, approximately $3.4 million in severance has been paid and a balance of
$4.0 million for future pension benefits is included in accrued expenses on the
balance sheet.
The Company announced a restructuring in July 1998 including management
changes and the transition to a product management structure. The Company
recorded restructuring and other expenses of $3.2 million in 1998. The 1998
restructuring and other expenses consists of $2.9 million of severance costs
related to management changes to implement the product management structure and
$0.3 million of other costs.
Purchase of Cauldron Process Chemistry
On May 17, 1999, the Company, through its CTC subsidiary, purchased the
Cauldron Process
27
<PAGE>
Chemistry business in Malvern, Pennsylvania. The Company paid approximately $6.9
million in cash including transaction costs. The asset purchase agreement calls
for an additional payment in February 2000 based on Cauldron achieving certain
1999 business results. The targeted results were not achieved and consequently
the Company has determined no additional payment is due. The acquisition was
accounted for as a purchase. Accordingly, the assets and liabilities acquired
are included in the consolidated balance sheet as of December 31, 1999 and the
results of operations and cash flows from the date of acquisition. The Company
recorded goodwill of approximately $5.3 million associated with the acquisition,
which is being amortized on a straight-line basis over 15 years.
Long-Term Debt
In May 1999, the Company amended its 1997 senior secured term-loan and
revolving-credit facilities, (the "1997 Facilities Agreement"). The amendment
to the 1997 Facilities Agreement included a reduction of the interest rate to
LIBOR plus 1.0 percent declining to LIBOR plus 0.75 percent after September 30,
1999 and shortening of the term to January 1, 2001.
In December 1999, the Company refinanced the 1997 Facilities Agreement,
resulting in a new term loan of $48.6 million ((Pounds)30.0 million) and a
revolving credit facility of $40.5 million ((Pounds)25.0 million) with a term of
five years (see Note 7).
Extraordinary Loss
In 1999, as a result of the Company paying down revolving-credit and term-loan
borrowings from the stock offering proceeds and refinancing its 1997 Facilities
Agreement, the Company recorded a pre-tax charge of $2.1 million in 1999 to
write off certain deferred financing costs associated with the 1997 Facilities
Agreement (see note 7) which is classified as an extraordinary loss on the
statement of operations net of $0.6 million in benefit for income taxes, or
$(0.10) per basic and diluted share.
Purchase of Annan, Scotland Manufacturing Site
On October 31, 1997, the Company through its Annan subsidiary completed the
purchase of GlaxoWellcome's FDA cGMP pharmaceutical production facility located
in Annan, Scotland. The Company paid approximately $66.8 million (40.0 million)
for the facility plus an additional payment for certain working capital of
approximately $1.7 million ((Pounds)1.0 million).
As part of the transaction, Glaxo awarded the Company a five-year contract to
supply certain pharmaceutical intermediates and active ingredients.
ChiRex purchased all of the buildings, land and equipment at the 154-acre
Annan, Scotland property, encompassing three main production facilities plus
certain working capital. Under the supply agreement, ChiRex will continue to
manufacture most of the products currently made at Annan. The Company has
invested approximately $24 million in 1998, $10 million in 1999 and plans to
invest an additional $15 million in the year 2000 to accommodate newly
contracted products and to complete the modification of the facility for multi-
product pharmaceutical fine chemical manufacturing. The acquisition has been
accounted for as a purchase and, accordingly, the operating results of the Annan
facility have been included in the Company's consolidated financial statements
from the date of acquisition. The total purchase price including expenses of
the transaction was allocated to the assets purchased.
To finance the acquisition and provide for the general cash requirements of
the business, Holdings entered into the 1997 Facilities Agreement (see Note 7).
Sale of Acetaminophen Business and Restructuring Charge
In April 1997, the Company sold its acetaminophen business and related
intellectual property to Rhone-Poulenc Chimie S. A., a French pharmaceutical
company, for net proceeds of approximately $7.1 million ((Pounds)4.3 million),
of which $4.1 million ((Pounds)2.5 million) was received during 1997 with the
balance being
28
<PAGE>
received over three years. Amounts due from Rhone-Poulenc Chimie of $1.2 million
((Pounds)0.8 million) at December 31, 1999, are reflected in other current
assets on the balance sheets and have been discounted at a market interest rate.
Under terms of the agreement, ChiRex continued to manufacture acetaminophen for
the purchaser pursuant to a supply agreement for a period after the sale to
effect a seamless transfer of customers. The Company ceased manufacture of
acetaminophen in September 1997.
In connection with the disposal of the acetaminophen business, the Company
recorded an asset impairment and restructuring charge totaling $7.7 million to
write down the equipment associated with the acetaminophen business to their net
realizable value and to provide for severance and other costs of $7.5 million
due to the elimination of employees involved with the manufacture and support of
the acetaminophen business. As of December 31, 1999, approximately $0.9 million
of the restructuring charge remains in accrued expenses on the balance sheet for
future obligations associated with the divestiture of the acetaminophen
business.
Secondary Public Offering of The Company's Common Stock
On February 26, 1997, the Company filed with the Securities and Exchange
Commission to register the sale by Sepracor Inc. of its 3,489,301 shares of the
Company's common stock at $9.50 per common share (the "Secondary Offering"). In
connection with the Secondary Offering, the Company granted the underwriters a
30-day option to purchase up to 523,395 additional shares of the Company's
common stock on the same terms as set forth in the Secondary Offering to cover
over allotments. In April 1997, the underwriters exercised their option and the
Company issued 523,395 shares of its common stock and received proceeds of $4.2
million net of associated expenses.
3. Employee Benefit Plans
Stock-based Compensation Plans
ChiRex Inc. Stock Option Plans
In December 1995, the Company adopted an incentive stock-based compensation
plan which permits the grant of up to 1,500,000 shares of the Company's common
stock (the "1995 Plan") and in February 1997 the Company adopted an incentive
stock-based compensation plan which permits the grant of up to 2,000,000 shares
of the Company's common stock (the "1997 Plan"). The 1995 Plan and 1997 Plan
allow for the grant of a variety of stock and stock-based awards to be granted
to employees or consultants as determined by the compensation committee of the
Company's Board of Directors (the Compensation Committee), including stock,
restricted stock, stock options, stock appreciation rights or performance based
shares. The option recipients and the terms of options granted under the 1995
Plan and 1997 Plan are determined by the Compensation Committee. Options
granted generally vest ratably over a five-year period from the date of grant
and expire after seven to ten years from the date of grant. In some instances,
vesting for certain stock options may be accelerated due to achievement of
specific events determined by the Compensation Committee at the date of the
grant. Typically, options are immediately exercisable upon vesting. Non-
qualified stock options may be granted at any price determined by the
Compensation Committee, although incentive stock options must be granted at an
exercise price not less than the fair market value of the Company's common stock
on the date of the grant.
The Company also has a directors' stock option plan, adopted in December 1995
and amended in February 1997 and April 1999, which permits the grant of up to
100,000 options to purchase shares of the Company's common stock to outside
directors. Options granted under this plan generally vest one year from the
date of grant (except that a director's initial grant upon joining the Board
vests over five years in equal portions) and expire after seven to ten years
from the date of grant.
Certain options have been granted to Scientific Advisory Board members and
consultants. Under SFAS 123, these options are required to be measured at their
fair market value and charged to earnings over the period of vesting. The
Company recorded in 1998 and 1999, $102 thousand and $511 thousand,
29
<PAGE>
respectively, in compensation expense associated with these options. In two
instances relating to stock options for 105,000 shares, the fair market value is
not fixed and determinable until vesting occurs.
In connection with management changes in 1998, the Company amended certain
stock option grants to extend their term, accelerate vesting or both. These
amendments constituted a remeasurement of the stock option grants and resulted
in compensation expense included in restructuring and other expenses totaling
$641,000.
A summary of stock option activity under the ChiRex Inc. plans in 1997, 1998
and 1999 is summarized as follows:
<TABLE>
<CAPTION>
Weighted Average
Number of Shares Exercise Price
------------------------ ------------------
<S> <C> <C>
1997
- ----
Options outstanding beginning of period 850,741 $ 6.89
Granted 902,350 11.23
Exercised (334,566) 3.23
Lapsed/Canceled (43,730) 13.30
---------
Options outstanding end of period 1,374,795 $10.43
=========
Options exercisable 342,067 $ 8.33
=========
Options available for grant 1,800,308
=========
Weighted average fair value of options granted
during period $ 3.62
</TABLE>
<TABLE>
<CAPTION>
1998
- ----
<S> <C> <C>
Options outstanding beginning of period 1,374,795 $10.43
Granted 848,000 13.81
Exercised (81,177) 10.59
Lapsed/Canceled (275,575) 10.34
---------
Options outstanding end of period 1,866,043 11.96
=========
Options exercisable 536,383 9.69
=========
Options available for grant 1,227,883
=========
Weighted average fair value of options granted
During period $ 3.44
</TABLE>
<TABLE>
<CAPTION>
1999
- ----
<S> <C> <C>
Options outstanding beginning of period 1,866,043 $11.96
Granted 901,100 29.57
Exercised (212,375) 10.95
Lapsed/Canceled ( 78,044) 14.59
---------
Options outstanding end of period 2,476,724 18.38
=========
Options exercisable 737,350 11.19
=========
Options available for grant 404,827
=========
Weighted average fair value of options granted
During period $10.93
</TABLE>
The fair value of each option grant is estimated on the grant date using the
Black-Scholes options-pricing model.
30
<PAGE>
A summary of the status of the Company's stock options at December 31, 1999 is
as follows:
<TABLE>
<CAPTION>
Weighted Average
Range of Exercise Number Remaining Weighted Average Options Weighted Average
Prices of Options Contractual Life Exercise Price Exercisable Exercise Price
- ----------------- ---------- ---------------- ---------------- ----------- ----------------
<S> <C> <C> <C> <C> <C> <C>
$ 1.48 - $ 1.48 86,943 6.83 years $ 1.48 86,943 $ 1.48
9.75 - 15.00 1,236,981 6.40 years 12.07 562,607 11.65
16.00 - 21.75 388,700 5.84 years 19.38 87,800 17.85
24.00 - 32.687 764,100 6.56 years 31.30 - -
--------- -------
$ 1.48 - $32.687 2,476,724 6.38 years $20.10 737,350 $11.19
========= =======
</TABLE>
1995 Employee Stock Purchase Plan
The Company's 1995 Employee Stock Purchase Plan (the "Purchase Plan") was
adopted by the Board of Directors of the Company on December 20, 1995 and became
effective on March 11, 1996. The Purchase Plan authorizes the issuance of up to
a total of 480,000 shares of common stock to participating employees. All US
employees and certain UK employees are eligible to participate in the Purchase
Plan, subject to certain limitations.
The Purchase Plan is effective for a three-year term, and includes six plan
periods ("Plan Period"), which are each six month increments. Eligible employees
may authorize payroll deductions between 1% and 10% of gross wages, limited to a
pre-determined percentage of an employee's annual gross wages. At the end of
each Plan Period the amounts accumulated under the Purchase Plan by employees
will be used to purchase shares of common stock of the Company at 85% of the
fair value of common stock at either the first day or the last day of the Plan
Period, whichever is lower. The Purchase Plan provides for six Plan Periods of
80,000 shares each. Shares not purchased during a Plan Period will be eligible
for purchase in subsequent Plan Periods. Currently there are no eligible
employees participating in this plan and the effective term of this plan has
expired.
UK Employee Stock Purchase Plan
Substantially all of the Company's full-time UK employees at its Dudley
facility are eligible to participate in a employee stock purchase plan approved
by Inland Revenue. Under this plan, employees obtain the right to purchase a
pre-determined number of shares at 85% of the fair market value at the beginning
of the plan period. Shares are purchased through pre-determined payroll
deductions which may not exceed a pre-determined maximum dollar amount. These
funds accumulate in a savings account in the name of the employee over a three-
year period, at the end of which such savings may be used to purchase the
allocated shares. During 1999, this plan matured and 202,929 shares were
purchased and the Company received proceeds of $2.1 million. Currently there
are no eligible employees participating in this plan and the effective term of
this plan has expired.
Pro Forma Stock-based Compensation Plan Expense
SFAS No. 123, "Accounting for Stock-Based Compensation," sets forth a fair-
value based method of recognizing stock-based compensation expense. As
permitted by SFAS No. 123, the Company has elected to continue to apply APB 25
in accounting for its stock-based compensation granted to employees. Had
compensation cost for awards in 1997, 1998 and 1999 under the Company's stock-
based compensation plans been determined based on the fair value at the grant
dates consistent with the method set forth under
31
<PAGE>
SFAS No. 123, the effect on the Company's net income (loss) and net income
(loss) per common share would have been as follows:
<TABLE>
<CAPTION>
1997 1998 1999
------------------ ------------------ --------------------
(in thousands, except per-share amounts)
Net income (loss):
<S> <C> <C> <C>
As reported $ (650) $2,168 $9,303
Pro forma (1,442) 1,364 7,461
Basic and diluted net income (loss)
per common share:
As reported:
Basic $ (0.06) $ 0.18 $ 0.65
Diluted (0.06) 0.18 0.62
Pro forma:
Basic $ (0.13) $ 0.12 $ 0.53
Diluted (0.13) 0.11 0.50
</TABLE>
The resulting pro forma compensation expense may not be representative of the
amount to be expected in future years as pro forma compensation expense may vary
based upon the number of options granted.
The pro forma net income (loss) and pro forma net income (loss) per common
share presented above have been computed assuming no tax benefit. The effect of
a tax benefit has not been considered since a substantial portion of the stock
options granted are incentive stock options and the Company does not anticipate
a future deduction associated with the exercise of these stock options. In
addition, any benefit from deductibility of non-qualifying stock options is
subject to the Company's realization of net operating loss carryforwards.
The fair value of each option grant is estimated on the grant date using the
Black-Scholes options-pricing model with the following weighted-average
assumptions:
<TABLE>
<CAPTION>
1997 1998 1999
------------------ ------------------ ------------------
<S> <C> <C> <C>
Volatility 30.0% 30.0% 30.0%
Risk-free interest rate.......................... 6.0% 5.25% 5.50%
Expected dividend payout - - -
Expected life of options......................... 7 years 5 years 5 years
</TABLE>
The Black-Scholes option-pricing model was developed for use in estimating the
fair value of traded options which have no vesting restrictions and are fully
transferable. In addition, option-pricing models require the input of highly
subjective assumptions including expected stock price volatility. Because the
Company's employee stock options have characteristics significantly different
from those of traded options, and because changes in the subjective input
assumptions can materially affect the fair value estimate, in management's
opinion, the existing models do not necessarily provide a reliable single
measure of the fair value of its employee stock options.
At December 31, 1997, 1998 and 1999, the Company had reserved 1,800,308,
1,227,883, and 404,827 unissued shares of its common stock for possible issuance
under the stock-based compensation plans.
Defined Benefit Pension Plan
The Company's UK subsidiaries have a defined benefit pension plan covering
substantially all of their full-time employees. Benefits are based on a
percentage of eligible earnings for each year of service from the date of
employment. The Company's funding policy is to make contributions within a
range required by applicable regulations. Eligible employees are required to
contribute 3% of their current earnings under the plan. The participants also
have the ability to voluntarily contribute up to an additional 12% of their
current earnings.
32
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Change in benefit obligation: 1998 1999
- ----------------------------- ------- -------
Benefit obligation at beginning of year $53,181 $63,736
3,043 2,639
Service cost
Interest cost 3,795 4,019
Employee contributions 923 645
Curtailments / settlements 3,665 -
Actuarial loss 1,255 7,442
Actual benefit payments (2,611) (4,024)
Exchange adjustment 485 (1,536)
------- -------
Benefit obligation at end of year $63,736 $72,921
======= =======
Change in Plan Assets:
- ----------------------
Plan assets at beginning of year $58,662 $68,784
Actual return 9,307 14,996
Actual employer contribution 1,967 1,938
Actual employee contribution 923 645
Actual distributions (2,611) (4,024)
Exchange adjustment 536 (1,658)
------- -------
Plan assets at end of year $68,784 $80,681
======= =======
Net amount recognized:
- ----------------------
Funded status $ 5,048 $ 7,760
Unrecognized transition asset (1,180) (1,063)
Unrecognized gain (2,055) (3,582)
------- -------
Prepaid Expense $ 1,813 $ 3,115
======= =======
Components of Net Periodic Pension Cost: 1997 1998 1999
- ---------------------------------------- ------- ------- -------
$ 2,298 $ 3,043 $ 2,639
Service cost 3,826 3,795 4,019
Interest cost (4,859) (5,398) (5,978)
Expected return (351) (92) (89)
Amortization of transition asset ------- ------- -------
Total pension expense $ 914 $ 1,348 $ 591
======= ======= =======
Assumptions as of December 31 1997 1998 1999
- ----------------------------- ------- ------- -------
Discount rate 8.0% 6.5% 6.5%
Expected return 9.0% 9.0% 9.0%
Compensation increase 6.0% 3.5% 3.5%
</TABLE>
In connection with the 1999 restructuring, the Company granted early
retirement benefits to certain individuals. A liability of $4.0 million is
included in accrued expenses on the balance sheet at December 31, 1999 for these
future pension benefits.
33
<PAGE>
4. Income Taxes
The components of income (loss) including the extraordinary loss in 1999,
before (provision) benefit for income taxes for the years ended December 31,
1997, 1998 and 1999 are as follows:
<TABLE>
<CAPTION>
1997 1998 1999
------------------ ------------------- ------------------
(in thousands)
<S> <C> <C> <C>
Domestic $ 724 $(2,254) $(1,600)
Foreign (1,709) 6,795 16,113
------- ------- -------
Total $ (985) $ 4,541 $14,513
======= ======= =======
</TABLE>
The components of the (provision) benefit for income taxes including the
benefit for income taxes on the extraordinary loss in 1999 for the years ended
December 31, 1997, 1998 and 1999 are as follows:
<TABLE>
<CAPTION>
1997 1998 1999
------------- -------------- --------------
(in thousands)
Current (provision) benefit for income taxes:
Federal $ - $ - $ -
<S> <C> <C> <C>
State (205) (150) (85)
Foreign 45 544 (2,240)
----- ------- -------
(160) 394 (2,325)
----- ------- -------
Deferred benefit (provision) for income taxes:
Federal 10 - -
State - - -
Foreign 485 (2,767) (2,885)
----- ------- -------
495 (2,767) (2,885)
----- ------- -------
Total (provision) benefit for income taxes $ 335 $(2,373) $(5,210)
===== ======= =======
</TABLE>
The (provision) benefit for income taxes including the benefit for income
taxes on the extraordinary loss in the accompanying statements of operations for
the periods ended December 31, 1997, 1998 and 1999 is different from the
(provision) benefit calculated by applying the statutory federal income tax rate
of 34% to the income (loss) before income taxes due to the following:
<TABLE>
<CAPTION>
1997 1998 1999
-------------- ------------- --------------
(in thousands)
<S> <C> <C> <C>
(Provision) benefit for income taxes at statutory rate $ 335 $(1,544) $(4,934)
Effect of change in statutory tax rate 410 300 -
US net operating loss carryforwards 202 - -
Foreign tax rate differential (43) 204 701
Deductible (non-deductible) stock
compensation, net - (253) 231
State income taxes, net of federal tax benefit (135) (99) (55)
Non-deductible amortization of goodwill (396) (396) (396)
Valuation allowance on US tax net operating loss
carryforwards and stock compensation - (560) (694)
Other, net (38) (25) (63)
----- ------- -------
(Provision) benefit for income taxes $ 335 $(2,373) $(5,210)
===== ======= =======
</TABLE>
34
<PAGE>
Deferred income tax assets and liabilities reflected in the accompanying
balance sheet consist of the following as of December 31, 1998 and 1999:
<TABLE>
<CAPTION>
1998 1999
------------ ------------
(in thousands)
<S> <C> <C>
Deferred income tax assets:
Net operating loss carryforwards and stock
Compensation $ 6,313 $ 6,610
Reserves and other accruals 2,025 1,308
Accrued pensions 892 1,840
Other, net 808 856
Valuation allowance (3,789) (4,483)
-------- --------
Total deferred tax assets, net 6,249 6,131
-------- --------
Deferred income tax liabilities:
Depreciation and basis differences (15,253) (18,002)
-------- --------
Total deferred tax liabilities (15,253) (18,002)
-------- --------
Net deferred tax liabilities $ (9,004) $(11,871)
======== ========
</TABLE>
At December 31, 1998 and 1999, the Company had US federal and state tax net
operating loss carryforwards of approximately $10.5 million and $12.1 million,
respectively. In addition, at December 31, 1998 and 1999, the Company had net
operating loss carryforwards in the U.K. of $9.2 million and $8.3 million. Of
the total tax net operating loss carryforwards, $3.4 million and $4.6 million in
1998 and 1999, respectively, represent the tax benefit of disqualifying
dispositions and the exercise of non-qualified stock options. The tax benefit
related to disqualifying dispositions and exercise of non-qualified stock
options has been fully reserved for through a valuation allowance due to the
uncertainty of realization. If this tax benefit is realized or if the valuation
allowance is reduced in future periods, the tax benefit will be recorded in
additional paid-in capital. The remaining tax net operating loss carryforwards
of $7.1 million and $7.6 million in 1998 and 1999, respectively, have been fully
reserved for through a valuation allowance since the Company is uncertain if it
will generate future taxable income sufficient to realize the deferred tax
benefit.
A provision has not been made for US taxes on undistributed earnings of the
Company's UK subsidiary that could be subject to taxation if remitted to the US
because the Company currently plans to keep these amounts permanently
reinvested.
5. Commitments
The Company leases equipment and executive office and warehouse space under
various operating arrangements. The accompanying statements of operations
includes expenses from operating leases of $748,000 in 1997, $687,000 in 1998,
and $1,448,000 in 1999. Future minimum lease payments due under non-cancelable
operating leases net of non-cancelable sub-lease rental income at December 31,
1999 are
$1,108,000 in 2000; $912,000 in 2001; $778,000 in 2002; $366,000 in 2003; and
$57,000 thereafter. Total future minimum net lease payments are $3,221,000.
6. Contingencies
The Company is involved in various legal proceedings incidental to the conduct
of its business. While it is not possible to determine the ultimate disposition
of these proceedings, the Company believes that the outcome of such proceedings
will not have a material adverse effect on the financial position or results of
operations of the Company.
35
<PAGE>
7. Long-Term Debt and Revolving Credit Facility
1997 Facilities Agreement
- -------------------------
To finance the acquisition of the Annan facility, repay existing indebtedness
and provide for the general cash requirements of the business, Holdings entered
into a senior secured term-loan and revolving-credit agreement on October 29,
1997, with a group of banks (the "1997 Facilities Agreement"). The agreement
allowed the Company to borrow up to $103 million ((Pounds)62.0 million) for a
five-year period, comprised of a $66.0 million ((Pounds)40.0 million) term loan
and a $37.0 million ((Pounds)22.0 million) revolving-credit facility.
At certain points during 1998, the Company was not in compliance with certain
financial covenants under the 1997 Facilities Agreement, which the lenders
permanently waived. In conjunction with these permanent waivers, the Company
agreed to certain modifications to the terms including a change in certain
financial covenants, a modification in the interest rate and deferral of the
initial principal installment payment. The interest rate was modified to LIBOR
plus a margin of 0.75% to 2.00% depending on certain financial ratios, as
specified in the agreement. This rate was LIBOR plus 2.00% (8.25%) at December
31, 1998. In connection with these modifications, the Company agreed to pay the
lenders fees and reimbursed the lenders for costs incurred, which totaled $3.0
million ((Pounds)1.8 million). In addition, the Company agreed to use
reasonable endeavors to either restructure or refinance this debt.
In May 1999, the Company amended the 1997 Facilities Agreement. The amendment
to the agreement included a modification of the interest rate to LIBOR plus 1.0
percent declining to LIBOR plus 0.75 percent after September 30, 1999, and
shortening of the term to January 1, 2001. As a result of the amendment the
Company recorded a pre-tax charge of $1.0 million to write-off certain deferred
financing costs which is classified as an extraordinary loss on the statement of
operations.
1999 Facilities Agreement
- -------------------------
In December 1999, the Company refinanced the 1997 Facilities Agreement,
resulting in a new term loan of $48.6 million ((Pounds)30.0 million) and a
revolving-credit facility of $40.5 million ((Pounds)25.0 million), (the "1999
Facilities Agreement"). The requirements of the 1999 Facilities Agreement call
for repayment of the term loan in twenty equal quarterly installments, beginning
on March 31, 2000 and annual mandatory repayments from excess cash flow, as
defined under the credit facility. The interest rate specified in the 1999
Facilities Agreement is LIBOR plus a margin of 1.00% to 2.00% depending on
certain financial ratios, as specified in the agreement. This rate was LIBOR
plus 1.00% (6.50%) at December 31, 1999. Borrowings under the agreement are
secured by the real and personal property of and guaranteed by the Company and
its subsidiaries. The agreement contains certain financial covenants and
limitations on indebtedness, dividends, capital expenditures, repurchase of
common stock and certain other transactions. The Company is in compliance at
December 31, 1999 with all terms of the 1999 Facilities Agreement and expects to
be in compliance with the current terms for the foreseeable future. As a result
of the refinancing the Company recorded a pre-tax charge of $1.1 million to
write off certain deferred financing costs which is classified as an
extraordinary loss on the statement of operations.
Long-term debt is comprised of the following as of December 31, 1998 and 1999:
<TABLE>
<CAPTION>
1998 1999
------------ ------------
(in thousands)
<S> <C> <C>
Revolving-credit facility $24,900 $ -
Term loan 66,400 48,600
------- -------
Total debt 91,300 48,600
Less current portion of long-term debt 14,756 9,720
------- -------
Long-term debt $76,544 $38,880
======= =======
</TABLE>
The Company classified all of the outstanding borrowings under the revolving-
credit facility at December 31, 1998 as long-term because borrowings are not
re-payable within one year as of the balance sheet date.
36
<PAGE>
Long-term debt maturities during the next five years as of December 31, 1999
is as follows (in thousands):
2000 $ 9,720
2001 9,720
2002 9,720
2003 9,720
2004 9,720
-------
Total $48,600
=======
Interest costs incurred during 1997, 1998 and 1999 were $1,397,000, $7,739,000
and $4,645,000, respectively. Interest costs totaling $150,000, $1,765,000 and
$194,000 were capitalized in 1997, 1998 and 1999, respectively. Included in
interest expense are $47,000, $309,000 and $1,597,000 of non-cash amortization
of deferred financing costs in 1997, 1998 and 1999, respectively.
8. Non-cash Investing and Financing Activities
Included in accrued expenses at December 31, 1998 and 1999, are $2,344,000 and
$829,000, respectively, related to capital expenditures, and at December 31,
1998, $2,158,000 related to deferred financing costs.
9. Agreements with Former Affiliate
ChiRex America and Sepracor Inc. entered into a Technology Transfer Agreement
as of January 1, 1995 (the "Technology Agreement"). Under the Technology
Agreement, Sepracor Inc. granted to ChiRex America an exclusive, royalty-free
right and license to use and practice the ChiRex Technologies licensed and
sublicensed thereunder (the "Licensed Technologies") on a worldwide basis in a
field defined as the development, manufacture, use and sale of pharmaceutical
intermediaries, active ingredients, agrochemicals, flavors, fragrances and other
chemicals and compounds (the"Company Field"). Pursuant to an amendment to the
Technology Agreement dated May 19, 1998, Sepracor Inc. assigned three third
party license agreements (formerly included in the Licensed Technologies)
directly to ChiRex America with a sublicense back to Sepracor Inc. for a defined
field. The Technology Agreement expired on December 31, 1998 but the license
granted therein is perpetual to ChiRex America and survives expiration of such
agreement. The three third party license agreements assigned to ChiRex America
in the May 19, 1998 amendment continue in effect for the respective life of each
agreement in accordance with the specific terms and conditions set forth in each
agreement.
10. Related Party Transactions
In 1997, 1998 and 1999 the Company has incurred $346,000, $313,000 and
$297,000 respectively, to Sepracor Inc. under the Technology Transfer and
License Agreement for legal expenses and has received $460,000, $453,000 and
$490,000, respectively, in license royalty income.
11. Significant Customers
In 1999, the Company's three largest customers accounted for approximately 81%
of total revenues. GlaxoWellcome plc, Sanofi S.A. ("Sanofi"), and Rohm and Haas
Company ("Rohm and Haas") accounted for approximately 59%, 15%, and 7%,
respectively. In 1998, the Company's three largest customers accounted for
approximately 85% of total revenues. GlaxoWellcome plc, Sanofi, and Rohm &
Haas, accounted for approximately 57%, 16%, and 12%, respectively. In 1997, the
Company's four largest customers accounted for approximately 76% of total
revenues. Sanofi, GlaxoWellcome plc, Rohm and
37
<PAGE>
Haas and SmithKline Beecham accounted for approximately 36%, 17% 13% and 10%,
respectively.
12. Segment Information
The Company operates through two operating divisions, the development division
and the manufacturing division. The Company's development division is engaged
in every aspect of drug substance development from discovery support before
submission of IND and process research and development and manufacture of
material for clinical trials. The Company's manufacturing division produces
bulk active pharmaceutical ingredients.
The following table shows data for the Company by segment:
<TABLE>
<CAPTION>
1997 1998 1999
------------------- ------------------- -------------------
Revenues:
<S> <C> <C> <C>
Manufacturing division $ 82,796 $106,263 $123,316
Development division 11,304 13,400 23,673
------------------- ------------------- -------------------
Total $ 94,100 $119,663 $146,989
=================== =================== ===================
Operating income:
Manufacturing division $ 13,570 $ 17,693 $ 37,329
Development division 4,229 5,828 6,324
------------------- ------------------- -------------------
Subtotal 17,799 23,520 43,653
Management, sales & administration (5,726) (5,520) (6,756)
Research & development (3,937) (4,389) (6,958)
Restructuring and other expenses (8,069) (3,242) (7,399)
------------------- ------------------- -------------------
Total $ 67 $ 10,370 $ 22,540
=================== =================== ===================
Depreciation and amortization:
Manufacturing division $ 7,471 $ 10,316 $ 13,595
Development division 1,967 2,076 2,894
Management, sales & administration 624 117 99
------------------- ------------------- -------------------
Total $ 10,062 $ 12,509 $ 16,588
=================== =================== ===================
Property, plant & equipment, net:
Manufacturing division $104,330 $137,884 $137,503
Development division 15,980 15,795 18,950
Management, sales & administration 445 391 6,694
------------------- ------------------- -------------------
Total $120,755 $154,070 $163,147
=================== =================== ===================
Capital expenditures:
Manufacturing division $ 10,609 $ 39,358 $ 14,874
Development division 1,007 1,760 5,178
Management, sales & administration 451 65 1,418
------------------- ------------------- -------------------
Total $ 12,067 $ 41,183 $ 21,470
=================== =================== ===================
</TABLE>
38
<PAGE>
The following tables show revenues and long-lived assets by geographical
location based on customer location:
<TABLE>
<CAPTION>
1997 1998 1999
---------------- ----------------- ----------------
<S> <C> <C> <C>
Revenues
North America $ 4,765 $ 6,300 $ 7,719
Europe 88,577 112,744 128,580
All 758 619 10,690
other
Total $94,100 $119,663 $146,989
================ ================= ================
Long-lived assets
U.S. $ 443 $ 403 $ 4,949
UK 120,312 153,667 158,198
All - - -
other
Total $120,755 $154,070 $163,147
================ ================ ===============
</TABLE>
13. Price Range of Common Stock and Dividend Policy (Unaudited)
The common stock was initially offered to the public on March 5, 1996 at a
price of $13.00 per share. The common stock is listed and traded on The Nasdaq
Stock Market's National Market ("Nasdaq") under the symbol "CHRX." The following
table sets forth for the periods indicated the high and low sales prices of the
common stock as reported by Nasdaq.
<TABLE>
<CAPTION>
High Low
--------------- ---------------
1998:
<S> <C> <C>
First Quarter $19.31 $11.63
Second Quarter 23.25 14.19
Third Quarter 19.00 9.75
Fourth Quarter 21.38 10.50
1999:
First Quarter $24.50 $18.16
Second Quarter 33.25 21.87
Third Quarter 35.62 25.81
Fourth Quarter 34.87 12.50
</TABLE>
The Company has never declared or paid cash dividends on its capital stock.
The Company currently intends to retain any future earnings for use in the
Company's business and, therefore, does not anticipate paying cash dividends in
the foreseeable future.
39
<PAGE>
14. Quarterly Information (Unaudited)
<TABLE>
<CAPTION>
(in thousands except per-share amounts)
Quarter Ended
--------------------------------------------------------------------------
March 31 June 30 September 30 December 31
---------------- ------------------- ---------------- -------------------
<S> <C> <C> <C> <C>
1998
- ------------------------------------------
Revenues $23,658 $28,554 $31,715 $35,736
Gross profit 4,356 7,098 6,849 13,484 (a)
Restructuring charges, net of - - (2,802) (b) (440)(b)
proceeds
Net income (loss) (1,096) 609 (744) 3,399
Net income (loss) per common
share:
Basic $ (0.09) $ 0.05 $ (0.06) $ 0.29
Diluted $ (0.09) $ 0.05 $ (0.06) $ 0.28
Weighted average shares
outstanding
11,797 11,809 11,817 11,856
11,797 11,809 11,817 12,307
1999
- ------------------------------------------
Revenues $34,180 $36,624 $38,013 $38,171
Gross profit 11,381 12,752 14,008 15,047
Restructuring and other expenses - (730)(c) (5,732) (c) (937)(c)
Extraordinary loss, net - (700)(d) - (760)(d)
Net income (loss) 2,907 2,691 702 3,003
Net income (loss) per common
share:
Basic $ 0.24 $ 0.18 $ 0.05 $ 0.31
Diluted $ 0.23 $ 0.17 $ 0.04 $ 0.30
Weighted average shares
Outstanding:
Basic 12,092 14,795 14,860 15,054
Diluted 12,772 15,737 15,794 15,782
</TABLE>
(a) Gross margin improved due to contribution from production from the Annan
facility, and improved performance at the Dudley facility reflecting higher
sales volumes and lower expenses.
(b) Restructuring and other expenses for management changes and the transition
to a product management structure.
(c) Severance and pension benefits associated with the outsourcing of the
Company's inventory warehouse operation, its management information systems
departments, and a voluntary redundancy and early-retirement program.
(d) Write off of certain deferred financing costs as a result of the Company
paying down revolving-credit and term-loan borrowings and refinancing its 1997
Facilities Agreement
40
<PAGE>
IBC:Corporate Information
Board of Directors
Michael A. Griffith, Chairman and Chief Executive Officer
Dirk Detert, Ph.D., Former General Manager of Wellcome GmbH
Eric N. Jacobsen, Ph.D., Professor of Chemistry and Chemical
Biology, Harvard University
W. Dieter Zander, Managing Director, Arnhold and S. Bleichroeder
Corporate Officers
Michael A. Griffith, Chairman and Chief Executive Officer
Ian D. Shott, President, Manufacturing Division
Bruce P. Shutts, President, Development Division
Frank J. Wright, Executive Vice President, Corporate Development
Ian M. Brown, Vice President, Annan Operations
Thomas I.H. Dubin, Vice President, General Counsel and Secretary
Stuart E. Needleman, Vice President, Business Development
Roger B. Pettman, Ph.D., Vice President, Technology
Jon E. Tropsa, Vice President, Finance
Scientific Advisory Board
Alexander McKillop, Ph.D., ChiRex Inc., Co-Chairman
Roger B. Pettman, Ph.D., ChiRex Inc., Co-Chairman
Eric N. Jacobsen, Ph.D., Harvard University
Stephen Buchwald, Ph.D., Massachusetts Institute of Technology
J. Bryan Jones, Ph.D., University of Toronto
Andrew Myers, Ph.D., Harvard University
K. Barry Sharpless, Ph.D., The Scripps Research Institute
Annual Meeting
The 2000 Annual Meeting of Shareholders will be held on April 18,
2000, at 9:00 a.m., Eastern Standard Time, at ChiRex Inc. in
Stamford, CT, USA
SEC Form 10-K
A copy of the Company's Form 10-K filed with the Securities and
Exchange Commission may be obtained by contacting the Company at
Stamford, Connecticut .
Independent Public Accountants
Arthur Andersen LLP, 225 Franklin Street, Boston, Massachusetts
02110
Outside General Counsel
Cravath, Swaine & Moore, Worldwide Plaza, 825 Eighth Avenue, New
York, New York 10019
Transfer Agent
Equiserve, L.P., Shareholder Services Division, 150 Royall
Street, Canton, Massachusetts 02021. Telephone: (781) 575-3400
Website: www.equiserve.com
41
<PAGE>
Investor Relations
ChiRex Inc., Investor Relations Department, 300 Atlantic Street,
Suite 402, Stamford, Connecticut 06901. Telephone: (203) 351-2300
Homepage: http://www.chirex.com
---------------------
-or-
Feinstein Kean Healthcare Inc., 245 First Street, 14th Floor,
Cambridge, Massachusetts 02142. Telephone: (617) 577-8110.
E-Mail: [email protected]
----------------------------
Safe Harbor Statement
Statements in this annual report that are not strictly historical
are "forward looking" statements as defined in Section 27A of the
Securities Act and 21E of the Exchange Act. These forward looking
statements involve risks and uncertainties, including, but not
limited to, product development and market acceptance risks,
product manufacturing risks, the impact of competitive products
and pricing, the results of current and future licensing and
other collaborative relationships, the results of financing
efforts, developments regarding intellectual property rights and
litigation, risks of product non-approval or delays or post-
approval reviews by the FDA or foreign regulatory authorities,
and other risks identified in the Company's filings with the
Securities and Exchange Commission.
42
<PAGE>
Exhibit 23.1
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference of our report dated February 3, 2000 included in or incorporated by
reference into ChiRex Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1999, into ChiRex Inc.'s previously filed Registration Statement
No. 33-80831 on Form S-1, and Registration Statement No. 333-22401 on Form S-1.
Boston, Massachusetts
March 8, 2000
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY INFORMATION EXTRACTED FROM CHIREX INC.'S 1999
FORM 10-K AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FORM 10-K.
</LEGEND>
<CIK> 0001005407
<NAME> CHIREX INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 4,480
<SECURITIES> 0
<RECEIVABLES> 31,096
<ALLOWANCES> 0
<INVENTORY> 27,503
<CURRENT-ASSETS> 68,402
<PP&E> 212,948
<DEPRECIATION> 49,801
<TOTAL-ASSETS> 263,052
<CURRENT-LIABILITIES> 37,767
<BONDS> 0
0
0
<COMMON> 152
<OTHER-SE> 159,895
<TOTAL-LIABILITY-AND-EQUITY> 263,052
<SALES> 146,499
<TOTAL-REVENUES> 146,989
<CGS> 93,800
<TOTAL-COSTS> 30,649
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 5,934
<INCOME-PRETAX> 16,606
<INCOME-TAX> (5,843)
<INCOME-CONTINUING> 10,763
<DISCONTINUED> 0
<EXTRAORDINARY> (1,460)
<CHANGES> 0
<NET-INCOME> 9,303
<EPS-BASIC> 0.65
<EPS-DILUTED> 0.62
</TABLE>
