<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
January 13, 1995
----------------------------------------------------------
Date of Report (Date of earliest event reported)
NASHUA CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 1-5492-1 02-0170100
-------------- ------------- -------------------
(State of (Commission (I.R.S. Employer
incorporation) File Number) Identification No.)
44 Franklin Street
P.O. Box 2002
Nashua, New Hampshire 03061-2002
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(Address of principal executive offices)
(603) 880-2323
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(Registrant's telephone number, including area code)
<PAGE> 2
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On January 13, 1995, certain subsidiaries of Nashua Corporation, a Delaware
Corporation, (collectively "Nashua"), acquired the Continental European and
Northern Ireland-based film processing operations of Nexus Photo Limited, a
U.K. company, and its subsidiaries (collectively "Nexus"). The principal
operations acquired support mail-order photofinishing services in France and
wholesale film processing in Northern Ireland. Also acquired are mail-order
photofinishing businesses in Belgium, Netherlands and Spain. Processing for
the Continental European business takes place in Deal, England with certain
French order fulfillment handled in Boulogne, France. The Northern Irish
operation is located near Belfast, Northern Ireland. The assets acquired
included all assets, tangible and intangible, including fixed assets,
inventories, trade receivables, tradenames, trademarks and goodwill related
directly to the Continental Europe and Northern Ireland-based film processing
operations, in addition to certain photo processing equipment. Liabilities
assumed by Nashua include all third-party trade liabilities and obligations
pertaining to the acquired operations. Excluded liabilities and obligations
include any litigation, tax liabilities and past service liabilities relating
to former or current employees.
Nashua intends to continue the mail-order and wholesale photofinishing
operations in the above countries, and may use certain excess photo processing
assets acquired in its other mail-order photo processing operations.
Under the terms of the Purchase Agreement, the total purchase price was
approximately L16.4 million, plus the assumption by Nashua of the liabilities
discussed above. An additional earn out is payable based on certain future
film roll volume in the Northern Ireland operation. Approximately L2 million
of the purchase price was placed in escrow, which funds shall be released to
Nexus upon the transfer of certain photo processing equipment. Approximately
L13.2 million of the purchase price was provided by a new $75 million
revolving credit facility under an agreement dated January 5, 1995 by and
between Chemical Bank, Bank of Montreal and Bank of Boston and Nashua
Corporation. The remaining purchase price was paid out of existing cash
reserves.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) It is impracticable for Nashua to provide financial statements at this
time regarding the transaction described in Item 2. Therefore, Nashua
will file the required financial statements under cover of Form 8 as
soon as practicable, but no later than March 29, 1995.
(b) It is impracticable for Nashua to provide pro forma financial information
at this time regarding the transaction described in Item 2. Therefore,
Nashua will file the required pro forma financial information under cover
of Form 8 as soon as practicable, but no later than March 29, 1995.
(c) Exhibits
4.1 Purchase and Sale Agreement by and among Nashua Corporation
and subsidiaries and Nexus Photo Limited and subsidiaries,
dated January 13, 1995.
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<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Security Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
NASHUA CORPORATION
(Registrant)
January 27, 1995 /s/ William Luke
Date: ___________________ By ____________________________
William Luke
Vice President-Finance
and Chief Financial Officer
(principal financial and
duly authorized officer)
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<PAGE> 4
INDEX TO EXHIBITS
PAGE NO.
4.1 Purchase and Sale Agreement, by and among Nashua -4-
Corporation and subsidiaries and Nexus Photo Limited
and subsidiaries.
-3-
<PAGE> 1
Exhibit 4.1
DATED 13TH JANUARY 1995
(1) NEXUS PHOTO LIMITED
and
(2) NASHUA PHOTO LIMITED
and
(3) NASHUA NEDERLAND B.V.
and
(4) NASHUA PHOTO LICENSING INC.
and
(5) NASHUA CORPORATION
and
(6) NASHUA BELMONT LIMITED
and
(7) NASHUA PHOTO INTERNATIONAL
INVESTMENTS, INC.
and
(8) NASHUA PHOTO EUROPEAN INVESTMENTS, INC.
---------------------------------------
AGREEMENT FOR THE SALE
AND PURCHASE OF THE NORTHERN IRISH BUSINESS
AND EUROPEAN DIRECT MAIL SERVICES BUSINESS
OF NEXUS PHOTO LIMITED
---------------------------------------
CLIFFORD CHANCE
200 Aldersgate Street
London EC1A 4JJ
Telephone: 071 600 1000
Fax: 071 600 5555
Reference: MER/SHC/N1962/00230
<PAGE> 2
CONTENTS
<TABLE>
CLAUSE
PAGE
<S> <C>
1. INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. ASSETS TO BE SOLD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3. CONSIDERATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4. COMPLETION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5. SCANDINAVIAN EQUIPMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
6. UK EQUIPMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7. WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8. THE VENDOR'S LIMITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
9. LIABILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
10. TRADE CREDITS AND TRADE DEBTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
11. CONTRACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
12. EMPLOYEES AND PENSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
13. VALUE ADDED TAX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
14. POST-COMPLETION OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
15. CONFIDENTIAL INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
16. USE OF INTELLECTUAL PROPERTY RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
17. FURTHER VENDOR'S UNDERTAKINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
18. ANNOUNCEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
19. COMPETITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
20. COSTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
21. FURTHER ASSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
22. GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
23. ASSIGNMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
24. GUARANTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
25. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
26. GOVERNING LAW AND JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
27. COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SCHEDULES
1. Excluded Assets and Excluded Liabilities
2. Intellectual Property Rights
3. The Property
4. Information Concerning the Subsidiaries
5. Warranties
6. Apportionments
</TABLE>
<PAGE> 3
7. Creditors to be Discharged by Purchasers
8. Pension Arrangements
9. Contracts
10. Equipment
11. Employees
12. Selling Subsidiaries
13. Major Contracts
AGREED FORM DOCUMENTS
1. Asset Register
2. Vehicle Register
3. Release or certificate of non-crystallisation of any Encumbrances
affecting the Assets
4. Letter to Employees
5. Letter to Wholesale Customers (excluding Mail-Order Customers),
Clients and Suppliers
6. Intellectual Property Assignment
7. Computer Software Licence
8. Assurances
9. Trade Debts
10. Environmental Report
11. Hivedown Agreement
12. Escrow Instruction Letter
13. Transfer Deeds
14. Belgian Letter
15. Agreed Schedules
16. Share Transfer Agreement
17. Spanish Letter
18. Stamp Duty Deed
19. Information Bundles
20. Scandinavian Licence
<PAGE> 4
THIS AGREEMENT is made on 13 January 1995
BETWEEN:
(1) NEXUS PHOTO LIMITED a company incorporated in England and Wales
(registered no. 2916227), whose registered office is at 190
Strand, London WC2R 1JN, England (the "VENDOR");
(2) NASHUA PHOTO LIMITED a company incorporated in England and Wales
(registered no. 449460), whose registered office is at Brunel
Road, Newton Abbot, Devon TQ12 4PB, England ("PHOTO");
(3) NASHUA NEDERLAND B.V. a company incorporated in Amsterdam, The
Netherlands whose registered office is at 3115 Strawinskylaan,
1077-ZX, Amsterdam, The Netherlands ("NEDERLAND");
(4) NASHUA PHOTO LICENSING INC. a company incorporated in Delaware,
United States of America whose principal place of business is at
44 Franklin Street, PO Box 2002, Nashua, New Hampshire 03061-2002,
USA ("LICENSING");
(5) NASHUA CORPORATION a company incorporated in Delaware, United
States of America whose principal place of business is at 44
Franklin Street, PO Box 2002, Nashua, New Hampshire 03061- 2002,
USA ("NASHUA");
(6) NASHUA BELMONT LIMITED a company incorporated in Delaware, United
States of America whose principal place of business is at 44
Franklin Street, PO Box 2002, Nashua, New Hampshire 03061-2002,
USA ("NORTHERN IRELAND");
(7) NASHUA PHOTO INTERNATIONAL INVESTMENTS, INC. a company
incorporated in Delaware, United States of America whose principal
place of business is at 44 Franklin Street, PO Box 2002, Nashua,
New Hampshire 03061-2002, USA ("INTERNATIONAL"); and
(8) NASHUA PHOTO EUROPEAN INVESTMENTS, INC. a company incorporated in
Delaware, United States of America whose principal place of
business is at 44 Franklin Street, PO Box 2002, Nashua, New
Hampshire 03061-2002, USA ("INVESTMENTS").
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<PAGE> 5
THE PARTIES AGREE as follows:
1. INTERPRETATION
1.1 In this Agreement:
"ACCOUNTS" means the audited profit and loss account of each
Subsidiary (other than ColourCare International Limited) for the
accounting period ended on, and the audited balance sheet of each
Subsidiary (other than ColourCare International Limited) as at,
the Last Accounting Date, including all notes, reports and other
documents annexed thereto in accordance with any legal requirement
or otherwise;
"AGREED SCHEDULES" means the schedules of title deeds and
documents annexed to this Agreement at Appendix 1;
"ASSET REGISTER" means the register of plant and machinery of the
Business in the agreed form;
"ASSETS" means all property and assets of the Business agreed to
be sold and purchased under this Agreement including, without
limitation, the benefit and burden of each Contract, the Customer
Lists, the Equipment, the Fixed Plant, the Goodwill, the
Intellectual Property Rights, the Know-How, the Machinery, the
Motor Vehicles, the Office Equipment, the Property, the Stocks,
the Nashua Mailers, the Trade Debts, the Confidential Information
and all other property, assets and rights owned by the Vendor or
by any Subsidiary and which are used solely in connection with the
Business (whether in or about the Property or otherwise);
"ASSURANCES" has the meaning given in Schedule 3;
"BELGIAN ASSETS" means those Assets both tangible and intangible
owned by ColourCare International B.V. in relation to that part of
the Business carried on by its Belgian branch;
"BELGIAN EMPLOYEES" means those Employees employed by ColourCare
International B.V. immediately prior to Completion in Belgium
being those persons listed under "Belgium" in Schedule 11;
"BELGIAN LETTER" means the letter in the agreed form relating to
the transfer of certain of the Belgian Assets;
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<PAGE> 6
"BUSINESS" means together the Northern Ireland Photoprocessing
Business and the European Mail Order Business carried on by the
Vendor's Group at Completion;
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on
which clearing banks are open for business in London;
"COMPLETION" means completion of the sale and purchase of the
Business and Assets in accordance with this Agreement;
"COMPUTER SOFTWARE LICENCE" means the licence in the agreed form
to be entered into by ColourCare International Limited (1) and
Northern Ireland (2) relating to the Management Information
Systems software used in relation to the Business;
"CONFIDENTIAL INFORMATION" means all information not at present in
the public domain relating to the Business or customers or
financial or other affairs of the Business including, without
limitation, information relating to:
(a) the marketing of any goods or services including,
without limitation, Customer Lists and any other
details of customers, sales targets, sales statistics,
market share statistics, prices, market research
reports and surveys and advertising or other
promotional materials; or
(b) future projects, business development or planning
commercial relationships and negotiations; or
(c) litigation or legal advice;
"CONNORS BUSINESS" means the provision of photoprocessing services
by ColourCare International (Northern Ireland) Limited to Connors
Chemists Limited pursuant to an agreement dated 18 November 1994;
"CONSIDERATION" means the sum of pounds sterling 16,428,695
together with the Deferred Consideration (if any);
"CONTRACTS" means all contracts, undertakings, arrangements and
engagements of any member of the Vendor's Group relating to the
Business which are wholly or partly unperformed at Completion
being those supply and distribution agreements, customer and
supplier contracts, finance leases, hire and hire purchase
agreements listed in Schedule 9
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<PAGE> 7
but excluding, for the avoidance of doubt, the leases of the
Property and loan agreements (any one of these being a
"CONTRACT");
"CUSTOMER LISTS" means all lists existing at the date of
Completion of (i) customers of the European Mail Order Business
and (ii) customers of the Northern Ireland Photoprocessing
Business;
"DEFERRED CONSIDERATION" means the aggregate consideration payable
by the Purchasers to the Vendor for the Business and the Assets in
accordance with Part B of Clause 3;
"DISCLOSURE LETTER" means the letter of today's date from the
Vendor to the Purchasers in relation to the Warranties;
"DUTCH ASSETS" means those Assets both tangible and intangible
owned by ColourCare International B.V. in relation to that part of
the Business carried on by its Dutch branch;
"DUTCH EMPLOYEES" means those Employees employed by ColourCare
International B.V. immediately prior to Completion in Holland
being those persons listed under "Holland" in Schedule 11 other
than G. Van Weddingen;
"EMPLOYEES" means those persons who are listed in Schedule 11;
"EMPLOYMENT REGULATIONS" means the Directive of the Counsel of the
European Communities No. 77/187 and/or any national legislation or
regulation made under, or for the implementation of, that
Directive;
"ENCUMBRANCE" means any mortgage, charge, pledge, lien, option,
restriction, right of first refusal, right of pre- emption, third
party right or interest, any other encumbrance or security
interest of any kind, and any other type of preferential
arrangement (including, without limitation, title transfer and
retention arrangements) having a similar effect;
"ENVIRONMENTAL REPORT" means the report on the phase 2
investigations at the ColourCare Facility, Deal prepared by Dames
and Moore and dated November 1994 in the agreed form;
"EQUIPMENT" means the Scandinavian Equipment and the U.K.
Equipment;
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<PAGE> 8
"ESCROW ACCOUNT" means a separately designated interest bearing
account with Midland Bank plc in the name of the Escrow Agents;
"ESCROW AGENTS" means together the Vendor's Solicitors and the
Purchasers' Solicitors;
"ESCROW INSTRUCTION LETTER" means the letter in the agreed form
relating to the operation of the Escrow Account;
"EUROPEAN ASSETS" means the Belgian Assets, the Dutch Assets and
the Spanish Assets excluding (in each case) trade names and trade
marks;
"EUROPEAN SUBSIDIARIES" means Freeprint Limited, ColourCare
International Limited. Nexus S.N.C., ColourCare International
B.V., ColourCare International S.L., ColourCare International S.A.
and Newbridge Photographic B.V. and "EUROPEAN SUBSIDIARY" shall
mean any of the European Subsidiaries individually;
"EUROPEAN MAIL ORDER BUSINESS" means the business of
photoprocessing carried on at Completion by mail order by the
European Subsidiaries;
"EXCLUDED ASSETS" means the assets set out in Schedule 1;
"FIXED PLANT" means the fixed plant, machinery and those leasehold
improvements (so far as they have not become landlord's fixtures)
at the Property, owned by any member of the Vendor's Group in
connection with the Business at Completion as detailed in the
Asset Register;
"FRENCH SHARES" means the 226,608 ordinary shares of F.F. 100 each
in the capital of Nexus S.N.C. to be purchased by International
and Investments upon the terms and subject to the conditions set
out in this Agreement and in the Share Transfer Agreement;
"GOODWILL" means the goodwill of the Business together with the
right for the Purchasers and any of their subsidiaries to
represent themselves as carrying on the Business in continuation
of and in succession to the Vendor's Group;
"HIVEDOWN AGREEMENT" means the agreement in the agreed form to be
entered into by ColourCare International S.A. (1) and Nexus S.N.C.
(2) relating to the Business carried on by ColourCare
International S.A. to be contributed to Nexus S.N.C.;
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<PAGE> 9
"IDB GRANTS" means the employment and capital grants made to
Belmont Photographic Services Limited by the Industrial
Development Board for Northern Ireland under a financial
assistance letter of offer dated 8 October 1990;
"INFORMATION BUNDLES" means the information bundles in the agreed
form annexed to the Disclosure Letter;
"INTELLECTUAL PROPERTY" means patents, registered trade marks,
registered service marks, registered designs, copyright, and
applications for any of the foregoing, trade and business names,
unregistered trade marks and unregistered service marks, rights in
designs, inventions, Confidential Information, Know-How, rights
under licences, consents, orders, statute or otherwise howsoever
in relation to any such rights, and rights of the same or similar
effect or nature, in any part of the world;
"INTELLECTUAL PROPERTY ASSIGNMENT" means the assignment in the
agreed form to be entered into by the Vendor (1), ColourCare
International S.L. (2), ColourCare International (Northern
Ireland) Limited (3), ColourCare International Limited (4),
ColourCare International B.V. (5), [Soliscolor S.L. (6)] and
Licensing (7), relating to certain of the Intellectual Property
Rights;
"INTELLECTUAL PROPERTY RIGHTS" means all Intellectual Property
owned by any member of the Vendor's Group in connection with the
Business at Completion including, without limitation, those set
out in Schedule 2;
"IRISH ASSETS" means those Assets both tangible and intangible
owned by ColourCare International (Northern Ireland) Limited in
relation to that part of the Business carried on in Northern
Ireland and the Republic of Ireland;
"KNOW-HOW" means all information not at present in the public
domain owned by any member of the Vendor's Group and relating to
the Business held in any form (including, without limitation, that
comprised in or derived from drawings, data, formulae,
specifications, component lists, instructions, manuals, brochures,
catalogues and process descriptions) and relating to:
(a) the manufacture or production of goods or the
provision of services;
(b) the selection, procurement, construction, installation
or use of any raw material, plant, machinery or other
equipment or processes;
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<PAGE> 10
(c) the supply, storage, assembly or packing of raw
materials, components or partly manufactured or
finished products;
(d) quality control, testing or certification; or
(e) the rectification, repair or service of products,
plant, machinery or other equipment;
"LAST ACCOUNTING DATE" means 31st March 1994;
"MACHINERY" means the loose plant, machinery, tools, moulds, dies,
equipment and other like articles owned by the Vendor or any
Subsidiary and used solely in connection with the Business at
Completion including, without limitation, those shown in the Asset
Register;
"MAJOR CONTRACTS" means those Contracts listed in Schedule 13;
"MANAGEMENT ACCOUNTS" means the unaudited profit and loss account
of each Subsidiary (other than ColourCare International Limited)
for the period commencing on the Last Accounting Date and ending
on, and the unaudited balance sheet of each Subsidiary (other than
ColourCare International Limited) as at, 25th November 1994;
"MOTOR VEHICLES" means the motor vehicles listed in the Vehicle
Register;
"NASHUA GROUP" means Nashua and any subsidiary or holding company
from time to time of Nashua and any subsidiary from time to time
of any holding company of Nashua and any reference to "member of
the Nashua Group" shall be construed accordingly;
"NASHUA MAILERS" means envelopes received (whether before, on or
after Completion) by any member of the Vendor's Group and
containing film for processing and/or reprint and/or enlargement
together with payment in respect thereof, which film is not
processed until after Completion not being Nexus Mailers;
"NEXUS MAILERS" means envelopes received before Completion by any
member of the Vendor's Group and containing film for processing
and/or reprint and/or enlargement together with payment in respect
thereof, which film is processed prior to or on the day of
Completion or received in the 24 hours prior to Completion but is
not processed;
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<PAGE> 11
"NEXUS S.N.C." means Nexus S.N.C. a societe en nom collectif whose
registered office is at Bagneux (92120) 46 rue des Meuniers and
which is registered at the Commercial and Companies Registry of
Nanterre under number B399 417 443;
"NORTHERN IRELAND PHOTOPROCESSING BUSINESS" means the business of
photoprocessing carried on by ColourCare International (Northern
Ireland) Limited and its subsidiaries at Completion;
"OFFICE EQUIPMENT" means the office equipment and furnishings and
other like articles listed in the Asset Register;
"PRINCIPAL INTELLECTUAL PROPERTY RIGHTS" means those Intellectual
Property Rights referred to in Part A of Schedule 2;
"PROPERTY" means the freehold and leasehold property or properties
short particulars of which are set out in Part A of Schedule 3 and
a reference to "the Property" includes a reference to the
individual properties comprising the Property and any part or
parts of individual properties;
"PURCHASERS" means together Photo, Nederland, Licensing, Northern
Ireland, International and Investments;
"PURCHASERS' SOLICITORS" means Clifford Chance of 200 Aldersgate
Street, London EC1A 4JJ;
"RECORDS" means all bought and sold ledgers, purchase and sales
day books and purchase and sales invoices and other books and
corporate records of any Subsidiary necessary for the Purchasers
to carry on the Business and in the possession or control of any
Subsidiary including all documentation relating to the
Intellectual Property Rights including the registration and
renewal certificates for each of the Intellectual Property Rights
which are registered or pending at Completion;
"REORGANISATION" means the transfer of certain of the Assets
amongst certain members of the Vendor's Group which has taken
place immediately prior to Completion;
"SCANDINAVIAN EQUIPMENT" means that photoprocessing equipment
listed in Part A of Schedule 10;
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<PAGE> 12
"SHARE TRANSFER AGREEMENT" means the share transfer agreement
relating to the French Shares between ColourCare International
S.A. (1), the Vendor (2), International (3) and Investments (4) in
the agreed form;
"SPANISH ASSETS" means those Assets both tangible and intangible
owned by ColourCare International S.L. in relation to that part of
the Business carried on by it;
"SPANISH LETTER" means the letter in the agreed form relating to
the transfer of certain of the Spanish Assets;
"STAMP DUTY DEED" means the deed in the agreed form to be entered
into by the parties to this Agreement;
"STOCKS" means the stock of raw materials, partly finished and
finished goods of the Business as at Completion and owned by the
Vendor or by any Subsidiary;
"SUBSIDIARY" means any of the European Subsidiaries and ColourCare
International (Northern Ireland) Limited, information in respect
of which is set out in Schedule 4;
"TAXES ACT" means the Income and Corporation Taxes Act 1988;
"TRADE CREDITS" means the amounts due (otherwise than on
inter-company account) from any member of the Vendor's Group in
connection with the Business at Completion in respect of third
party trade creditors arising through normal business transactions
as set out in Schedule 7 and the amounts which have arisen through
normal business transactions since the dates shown in Schedule 7
and those other third party trade creditors arising through normal
business transactions from that date reflected in Schedule 7
through to the date of Completion;
"TRADE DEBTS" means the amounts due to any member of the Vendor's
Group in connection with the Business at Completion in respect of
trade debtor accounts arising through normal business transactions
(whether or not yet due and payable) including those disclosed in
the agreed form;
"TRADE MARKS" means registered trade marks, registered service
marks, unregistered trade marks and unregistered service marks
owned by the Vendor or by any Subsidiary in connection with the
Business at Completion except such marks owned by Nexus S.N.C.;
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<PAGE> 13
"TRADE NAMES" means the names set out in Part C of Schedule 2 and
any part or combination or abbreviation of such names together
with the right to use the names in the type or format in or with
the logo with which the names are or have been used by the Vendor
or by any Subsidiary in connection with the Business except such
names owned by Nexus S.N.C.;
"TRANSFER DEEDS" means the two sale and transfer deeds in the
agreed form to be entered into by (1) ColourCare International
B.V. and (2) Nederland relating to the transfer of the Dutch
Assets and by (1) ColourCare International S.L. and (2) Nederland
relating to the transfer of the Spanish Assets;
"UK EQUIPMENT" means that photoprocessing equipment listed in Part
B of Schedule 10;
"UK KODAK GUARANTEE AND DEBENTURE" means the guarantee and
debenture dated 28 June 1994 made between ColourCare International
Limited (1), Napcolour Limited (2) Freeprint Limited (3)
Miniprints Limited (4) ColourCare International (Northern Ireland)
Limited (5), the Vendor (6) and Kodak Limited (7);
"UK LIG DEBENTURE" means the debenture dated 28 June 1994 made
between ColourCare International Limited (1) Napcolour Limited (2)
Freeprint Limited (3) Miniprints Limited (4) ColourCare
International (Northern Ireland) Limited (5) the Vendor (6) and
London International Group plc (7);
"UK ASSETS" means those Assets both tangible and intangible owned
by Freeprint Limited and ColourCare International Limited in
relation to that part of the Business carried on by Freeprint
Limited;
"UNION" means any trade union, works council, staff association,
staff delegate (delegue du Personnel), health and safety committee
(C.H.S.C.T.) or any similar body recognised as representing
employees by the Vendor or any company in the Vendor's Group;
"VATA" means Value Added Tax Act 1994;
"VEHICLE REGISTER" means the register of Motor Vehicles in the
agreed form;
"VENDOR'S GROUP" means the Vendor and any subsidiary or holding
company from time to time of the Vendor and any subsidiary from
time to time of any holding company of
- 10 -
<PAGE> 14
the Vendor and any reference to "MEMBER OF THE VENDOR'S GROUP"
shall be construed accordingly;
"VENDOR'S SOLICITORS" means Lawrence Graham of 190 Strand, London
WC2R 1JN;
"WARRANTIES" means the representations and warranties contained
and referred to in Clause 7 and Schedule 5.
1.2 In this Agreement, a reference to:
1.2.1 a "SUBSIDIARY" or "HOLDING COMPANY" shall be construed
in accordance with section 736 of the Companies Act
1985 and a reference to "SUBSIDIARY UNDERTAKING" shall
be construed in accordance with section 258 of the
Companies Act 1985 and in relation to ColourCare
International (Northern Ireland) Limited only a
"subsidiary" or "holding company" shall be construed
in accordance with Article 4 of the Companies
(Northern Ireland) Order 1986 and a reference to
"subsidiary undertaking" shall be construed in
accordance with Article 266 of the Companies (Northern
Ireland) Order 1986;
1.2.2 a document in the "AGREED FORM" is a reference to a
document in a form approved and for the purpose of
identification signed by or on behalf of the parties;
1.2.3 a statutory provision includes a reference to:
(a) the statutory provision as modified or
re-enacted or both from time to time
(whether before or after the date of this
Agreement); and
(b) any subordinate legislation made under
the statutory provision (whether before
or after the date of this Agreement);
but in each case shall exclude legislation enacted
after the date hereof but having retrospective effect.
1.2.4 persons includes a reference to any body corporate,
unincorporated association or partnership;
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<PAGE> 15
1.2.5 a person includes a reference to that person's legal
personal representatives and successors;
1.2.6 a Clause, Schedule or Appendix, unless the context
otherwise requires, is a reference to a clause of and
a schedule or appendix to this Agreement;
1.2.7 an agreement or other document is a reference to that
agreement or document as from time to time
supplemented or amended.
1.3 The headings in this Agreement shall not affect the interpretation
of this Agreement.
1.4 Reference in Clause 7 and Schedule 5 to the knowledge,
information, belief or awareness of any person shall be deemed to
include any knowledge, information, belief or awareness which the
person would have if the person had made all usual and reasonable
enquiries appropriate to the context in which such words appear.
2. ASSETS TO BE SOLD
2.1 In accordance with and subject to the provisions of this
Agreement, the Vendor as beneficial owner shall sell, or procure
the sale by the relevant Subsidiary as beneficial owner, and the
Purchasers shall purchase, with effect from the close of business
on the date of Completion, the Business as a going concern, the
Assets (other than the Excluded Assets) and the French Shares as
at the date of Completion free from all Encumbrances (except, in
the case of the Property, the Third Party Interests as defined in
Part B of Schedule 3).
2.2 The Business, the Assets and the French Shares shall be purchased
in accordance with Clause 2.1 by the Purchasers in the following
manner:
2.2.1 Photo shall purchase:-
(i) the UK Assets excluding the trade marks
and the trade names;
(ii) the Goodwill of that part of the Business
carried on by Freeprint Limited; and
(iii) the Equipment.
2.2.2 Licensing shall purchase the Trade Marks and the Trade
Names.
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<PAGE> 16
2.2.3 Nederland shall purchase:-
(i) the European Assets; and
(ii) the Goodwill (together with, for the
avoidance of doubt, the Customers Lists
and the Know How) of that part of the
Business carried on by ColourCare
International B.V. and ColourCare
International S.L.
2.2.4 Northern Ireland shall purchase:-
(i) the Irish Assets excluding the trade
marks and the trade names; and
(ii) the Goodwill of that part of the Business
carried on by ColourCare International
(Northern Ireland) Limited.
2.2.5 International and Investments shall purchase the
French Shares.
2.3 For the avoidance of doubt, the Vendor shall procure that those
Subsidiaries named in Schedule 12 shall sell those Assets briefly
described against their respective names in Schedule 12 and that
ColourCare International S.A. and the Vendor shall sell the French
Shares.
3. CONSIDERATION
PART A
3.1 At Completion the Purchasers shall pay to the Vendor the aggregate
sum of pounds sterling 14,366,028 in cash, apportioned between the
Assets concerned as set out in Schedule 6.
PART B
3.2 Subject to the provisions of Clause 3.3 the Purchasers shall pay
to the Vendor a sum equal to pounds sterling 2.00 for each roll of
film received for processing by the Connor's Business in
accordance with the following table:-
<TABLE>
<CAPTION>
PERIOD IN WHICH ROLL RECEIVED PAYMENT DATE
<S> <C> <C>
1. 13 January 1995 to No later than 30 days
13 July 1995 after 13 July 1995
2. 14 July 1995 to 13 No later than 30 days
October 1995 after 13 October 1995
</TABLE>
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<PAGE> 17
<TABLE>
<S> <C> <C>
3. 14 October 1995 to No later than 30 days
12 January 1996 after 12 January 1996
</TABLE>
3.3 If the acquisition of the Connor's Business is referred to the
Monopolies and Mergers Commission (the "MMC") under the Fair
Trading Act of 1973 at any time within the period of twelve months
from Completion:-
3.3.1 The Purchasers' obligations to make any payments of
Deferred Consideration hereunder shall cease until
such time as the MMC or Secretary of State determines
that there exists no consequences or effects of the
acquisition of the Connor's Business which operate or
may be expected to operate against or adverse to the
public interest ("Adverse Consequence");
3.3.2 If the MMC or Secretary of State determines that there
exists no Adverse Consequences the Purchasers shall
within 5 Business Days of such determination pay any
amount of Deferred Consideration due and payable
hereunder without payment of interest thereon;
3.3.3 If the MMC or Secretary of State determines that the
acquisition of the Connor's Business creates an
Adverse Consequence, then the obligation of the
Purchasers to make any payments of Deferred
Consideration hereunder shall terminate and any and
all payments of Deferred Consideration previously made
hereunder shall be forthwith and immediately refunded
to the Purchasers by the Vendor.
3.4 Any payment made by the Purchasers to the Vendor hereunder shall
be deemed to be consideration monies paid by the Purchasers to the
Vendor for the Business and the Assets.
3.5 Nashua shall procure that upon receiving prior written notice from
the Vendor requesting such access that the Vendor shall have
reasonable access during normal business hours to such of the
Purchasers working papers and such other computer data, books and
records of the Business (wherever located) as are or may
reasonably be relevant to the calculation of the amounts due and
payable hereunder in order to verify any payment made or to be
made by the Purchasers hereunder provided that the Vendor shall
use its reasonable endeavours to avoid disrupting the business
carried on by the Purchasers in exercising this right.
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<PAGE> 18
3.6 If the Vendor disagrees with any payment made hereunder such
dispute shall be referred, at the option of either party, to an
independent Chartered Accountant agreed between them or in default
of agreement, selected on application of either party by the
President from time to time of the Institute of Chartered
Accountants of England and Wales. Such Chartered Accountant shall
act as an expert and not as an arbitrator and its determination
shall, save in the case of manifest error, be final and binding on
the parties. The fees of such Chartered Accountant shall be borne
by the Vendor and Nashua in such proportion as the Vendor and
Nashua may determine or (failing such determination) in such
proportion as such Chartered Accountant may determine. Any
Deferred Consideration to be paid following any such determination
shall be paid by such of the Purchasers as Nashua may determine to
the Vendor within 5 Business Days of such determination.
3.7 If either the Purchasers or the Vendor fail to make any payment
due under Clauses 3.2 or 3.3.3, interest shall accrue on any
overdue amount from the date on which such payment is due,
calculated at the rate of 2% per annum above the base rate from
time to time of Midland Bank plc.
PART C
3.8 Any payment to be made under this Clause 3 shall be made by
banker's draft or by telegraphic transfer to an account notified
by the party due to receive the payment to the other party not
later than seven days before the date the payment is due.
4. COMPLETION
4.1 Completion shall take place at such offices as the parties may
agree immediately following signature of this Agreement.
4.2 At Completion the Vendor shall:
4.2.1 deliver to Nashua evidence in a form satisfactory to
Nashua (whether by way of a certificate of the
Vendor's Solicitors or otherwise) that all necessary
consents have been obtained;
4.2.2 complete the sale of the Property (other than the
Property at Boulogne and Bagneux, France) in
accordance with the provisions of Part B, C, D and E
of Schedule 3;
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<PAGE> 19
4.2.3 give possession to the Purchasers of those Assets
which are transferable by delivery and agreed to be
delivered at Completion;
4.2.4 deliver to the Purchasers a release or certificate of
non-crystallisation in the agreed form in respect of
any Encumbrance affecting any of the Assets;
4.2.5 deliver to the Purchasers the duly executed
Intellectual Property Assignment, Stamp Duty Deed,
Computer Software Licence, and confirmation that the
Transfer Deeds have been executed and delivered to the
Purchasers in the relevant jurisdictions;
4.2.6 save as herein provided (if requested by the
Purchasers) deliver to the Purchasers in a form
reasonably acceptable to the Purchasers duly executed
assignments of or otherwise vest in the Purchasers
those Assets which are not transferable by delivery
(the assignments of the Property to be made in
accordance with the terms of Schedule 3);
4.2.7 deliver the Records to the Purchasers;
4.2.8 pay to Nashua the sum of pounds sterling 5,305 in cash
being 50% of the fees of Dames & Moore incurred in
preparing the Environmental Report;
4.2.9 deliver to International and Investments the duly
executed and completed Hivedown Agreement;
4.2.10 deliver to International and Investments the duly
executed Share Transfer Agreement; and
4.2.11 deliver to Nederland the statement of condition
relating to the leasehold property situate at 1, Rue
Victor Cornet, Mouscron, Belgium prepared as of the
commencement of the lease.
4.3 At Completion:
4.3.1 the Purchasers shall pay the sum referred to in Clause
3.1 in cash to the Vendor (on behalf of itself and the
relevant Subsidiaries);
4.3.2 Photo shall place the sum referred to in Clause 5.2
into the Escrow Account;
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<PAGE> 20
4.3.3 Licensing shall deliver to the Vendor the duly
executed Intellectual Property Assignment, and the
Computer Software Licence;
4.3.4 Nederland shall provide confirmation of delivery to
the Vendor of the duly executed Transfer Deeds;
4.3.5 Nashua shall deliver to the Vendor the duly executed
Stamp Duty Deed; and
4.3.6 the Vendor and Nashua shall sign two copies of the
Escrow Instruction Letter and deliver one copy to each
of the Escrow Agents; and
4.3.7 the Vendor shall deliver or procure the delivery to
the Purchaser of the title deeds and other documents
listed in the Agreed Schedules.
4.4 As soon as reasonably practicable following Completion the Vendor
and Nederland shall together despatch the Belgian Letter and the
Spanish Letter.
4.5 The receipt by the Vendor of the Consideration due under this
Agreement shall be a good and sufficient discharge to the
Purchasers in respect of any amounts due to the Subsidiaries in
respect of the Business and the Assets.
5. SCANDINAVIAN EQUIPMENT
5.1 The Vendor shall procure that as soon as reasonably practicable
following Completion it will deliver the Scandinavian Equipment to
Photo. For this purpose:-
5.1.1 the Vendor shall give written notice to Photo that it
is ready to deliver the Scandinavian Equipment
("VENDOR'S DELIVERY NOTICE");
5.1.2 Photo shall within five Business Days of the Vendor's
Delivery Notice notify the Vendor of the location in
the UK to which the Scandinavian Equipment is to be
delivered ("PHOTO'S DELIVERY NOTICE");
5.1.3 the Vendor shall deliver the Scandinavian Equipment to
the location so specified as soon as reasonably
practicable following Photo's Delivery Notice at its
own cost and risk; and
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<PAGE> 21
5.1.4 simultaneously with each such delivery the Vendor
shall deliver to Photo a release or certificate of
non-crystallisation in the agreed form in respect of
any Encumbrance affecting the Scandinavian Equipment
so delivered.
5.2 At Completion Photo shall pay to the Escrow Agents the sum of
pounds sterling 1,896,000 who will ensure that this amount is
immediately deposited into the Escrow Account to be held in
accordance with the terms of the Escrow Instruction Letter and
this Agreement.
5.3 The Vendor and Nashua shall ensure that all rights to the Escrow
Account remain free from any Encumbrance set-off or counterclaim
save as set out in this Clause and in particular no member of the
Nashua Group shall have any right to set-off any claims arising
under this Agreement for breach of warranty or otherwise against
any monies held in the Escrow Account.
5.4 The Vendor and Nashua shall instruct the Escrow Agents to release
the monies standing to the credit of the Escrow Account:-
5.4.1 to the Vendor within five Business Days after the
actual delivery to the specified location of any of
the Scandinavian Equipment, such amount as represents
the value of the Scandinavian Equipment so delivered
as specified in Schedule 10 Part A against the item so
delivered;
5.4.2 to Photo such amount of the principal of the Escrow
Account as shall represent the value of the
Scandinavian Equipment not delivered (in accordance
with the terms of this Clause otherwise than as a
result of a failure of Photo to comply with the terms
of Clause 5.1.2) on the expiry of the period of four
months from Completion;
5.4.3 to either party the interest accrued on the Escrow
Account in accordance with Clause 5.5 below
and in each case shall specify to the Escrow Agents the exact sum
so to be disbursed and the bank and account to which payment is to
be so made.
5.5 Interest on the Escrow Account shall be payable to the Vendor
insofar as the principal to which such interest relates represents
monies due to the Vendor following delivery of Scandinavian
Equipment to Photo but not paid within the time limit specified in
Clause 5.4.1 above and in respect of the period from such due date
of payment until the principal
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<PAGE> 22
is actually paid. All other interest shall accrue for the benefit
of Photo and shall be paid as soon as possible following the date
specified in Clause 5.4.2.
5.6 For the purposes of this Clause 5 the term "Scandinavian
Equipment" shall mean the Scandinavian Equipment listed in Part A
of Schedule 10 or such other equipment as Nashua may in its sole
and absolute discretion accept in substitution for the
Scandinavian Equipment so identified.
6. UK EQUIPMENT
6.1 The Vendor shall procure that as soon as reasonably practicable
following Completion and in any event within four months of
Completion it will deliver the UK Equipment to Photo. For this
purpose:-
6.1.1 the Vendor shall give written notice to Photo that it
is ready to delivery the UK Equipment ("VENDOR'S
DELIVERY NOTICE");
6.1.2 Photo shall within five Business Days of the Vendor's
Delivery Notice notify the Vendor of the location in
the UK to which the UK Equipment is to be delivered
("PHOTO'S DELIVERY NOTICE");
6.1.3 the Vendor shall deliver the UK Equipment to the
location so specified as soon as reasonably
practicable following Photo's Delivery Notice at its
own cost and risk; and
6.1.4 simultaneously with each such delivery the Vendor
shall deliver to Photo a release or certificate of
non-crystallisation in the agreed form in respect of
any Encumbrance affecting the UK Equipment so
delivered.
6.2 Photo shall pay to the Vendor in cash against delivery of any of
the UK Equipment to the specified location the value thereof as
specified in Schedule 10 Part B against the item so delivered.
6.3 For the purposes of this Clause 6 the term "UK Equipment" shall
mean the UK Equipment listed in Part B of Schedule 10 or such
other equipment as Nashua may accept in its sole and absolute
discretion in substitution for the UK Equipment so identified.
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<PAGE> 23
7. WARRANTIES
7.1 The Vendor represents, warrants and undertakes to the Purchasers
that each of the Warranties is true and accurate in all respects,
and not misleading, at the date of this Agreement.
7.2 The Vendor acknowledges that the Purchasers are entering into this
Agreement in reliance upon each of the Warranties.
7.3 The Warranties shall be qualified by reference only to those
matters fully, fairly and specifically disclosed in the Disclosure
Letter.
7.4 The Vendor agrees with the Purchasers that other than in the event
of fraud or wilful misconduct it shall waive and not enforce any
right which it may have in respect of any misrepresentation,
inaccuracy or omission in or from any information or advice
supplied or given by any officer, employee or adviser of or to the
Vendor for the purpose of assisting the Vendor to give any of the
Warranties or to prepare the Disclosure Letter.
7.5 Each of the Warranties shall be construed separately and
independently and (save where expressly provided to the contrary)
shall not be limited or restricted by reference to or inference
from any other provision of this Agreement or any of the other
Warranties.
7.6 Nashua and the Purchasers hereby jointly and severally warrant and
represent as follows:-
7.6.1 Nashua and the Purchasers have the requisite power and
authority to enter into and perform this Agreement;
and
7.6.2 this Agreement constitutes and other documents to be
executed by Nashua and the Purchasers and delivered at
Completion will, when executed, constitute binding
obligations of Nashua and the Purchasers in accordance
with their respective terms.
8. THE VENDOR'S LIMITATIONS
8.1 The Vendor shall indemnify and hold the Purchasers and Nashua
harmless against:
8.1.1 all losses, liabilities and costs which the Purchasers
may incur arising out of, or as a consequence of, any
breach of any of the Warranties by the Vendor; and
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<PAGE> 24
8.1.2 all costs which the Purchasers may incur (whether
before or after the commencement of any action) in
connection with:
(a) the settlement of any claim against the
Vendor arising out of, or as a consequence
of, any breach or alleged breach of any of
the Warranties or the enforcement of any
settlement; and
(b) any legal proceedings against the Vendor
arising out of, or as a consequence of, any
breach or alleged breach of any of the
Warranties in which judgment is given for the
Purchasers or the enforcement of any
judgment.
8.2 Notwithstanding the provisions of Clause 8.1 the amount
recoverable from the Vendor in respect of any breach of any of the
Warranties shall be calculated after taking into account:-
8.2.1 the extent to which, acting reasonably, the relevant
member of the Nashua Group mitigates or should have
mitigated the loss, liability or costs suffered
(including costs incurred in any settlement or arising
out of any legal proceedings); and
8.2.2 the value of any corresponding saving for any member
of the Nashua Group which results from the matter
giving rise to the claim.
8.3 The Vendor shall not be liable in respect of any claim hereunder
insofar as the amount recoverable from the Vendor under such
claim, when added to all the other amounts recoverable under all
claims made by Nashua and the Purchasers in respect of any claim
hereunder exceeds pounds sterling 16,400,000.
8.4 Save in relation to Warranties 5 and 6.1.2 the Vendor shall not be
liable in respect of any claim under the Warranties set out in
Schedule 5 to the extent that:
8.4.1 the amount recoverable in respect of the facts or
matters giving rise to the claim shall be less than
pounds sterling 10,000; or
8.4.2 the amount recoverable in respect of the facts or
matters giving rise to the claim shall together with
all other amounts recoverable from Vendor hereunder be
less than pounds sterling 75,000 in the aggregate but
in the event that the
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<PAGE> 25
amount so recoverable shall exceed this sum the full
amount (including the first pounds sterling 75,000)
shall be payable by the Vendor.
For the avoidance of doubt no amount which would fall
to be recoverable against the Vendor but for Clause
8.4.1 above shall be included for the purpose of
calculating the amount of pounds sterling 75,000
aforesaid.
8.5.1 The Vendor shall be entitled to give written notice to
the Purchasers that it desires to have conduct of any
negotiations, proceedings or appeals resulting from
any claims against the Purchasers which constitute or
may constitute a breach of any of the Warranties and
provided that the third party concerned is not a
supplier or customer of the business being carried on
by the Purchasers the Vendor shall be allowed to have
the conduct of any such negotiations, proceedings or
appeals.
8.5.2 If so requested by the Vendor the Purchasers shall
take all reasonable steps to avoid, resist, appeal,
compromise or defend any such claim and any
adjudication in respect thereof and take proceedings
in the name of the Purchasers (but subject to the
Purchasers being indemnified by the Vendor against all
losses, charges, costs, damages and expenses that may
be incurred in connection therewith).
8.5.3 The Purchasers shall upon receiving prior written
notice from the Vendor requesting such access during
normal business hours allow the Vendor or its agents
access to and to inspect and take copies (at the cost
of the Vendor) of all relevant books and records of
the Purchasers subject always to the Vendor using its
reasonable endeavours to avoid disruption to the
Business carried on by the Purchasers in the exercise
of such right and to keeping the same confidential
other than in respect of necessary disclosures in
connection with such action or claim.
8.6 Any payment by the Vendor under this Agreement to Nashua or the
Purchasers shall reduce by that amount any claim in respect of the
same subject matter by Nashua or the Purchasers and Nashua and the
Purchasers shall at all times procure so far as they are able that
there shall be no duplication of any claim relating to the same
subject matter under this Agreement.
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<PAGE> 26
8.7 The Purchasers shall give written notice to the Vendor of any
claim in respect of the Warranties as soon as reasonably
practicable after becoming aware of the same. No claim by Nashua
or the Purchasers hereunder shall be enforceable unless written
notice thereof (including such details thereof or relating thereto
then available to Nashua or the Purchasers including to the extent
reasonably practicable their best estimate of the likely liability
of the Vendor in respect thereof) has been duly served on the
Vendor by not later than the second anniversary of the date hereof
or, in respect of those warranties set out in paragraph 5 of
Schedule 5 only, by not later than the sixth anniversary of the
date hereof and legal proceedings shall have been instituted in
respect of claim by the due service of process on the Vendor
within six months of the date of receipt by the Vendor of notice
of such claim, as aforesaid.
8.8 The Purchasers shall upon receiving prior written notice from the
Vendor requesting such access during normal business hours allow
the Vendor or its agents reasonable access to and to inspect and
take copies (at the cost of the Vendor) of all relevant books and
records of the Purchasers subject always to keeping the same
confidential other than in respect of necessary disclosures in
connection with such action or claim, provided that the Vendor
shall use its reasonable endeavours to avoid disruption to the
Business carried on by the Purchasers in the exercise of this
right.
8.9 No breach of any warranty covenant or undertaking hereunder or
misrepresentation or misstatement of fact by the Vendor shall give
rise to a right on the part of Nashua or the Purchasers to rescind
or terminate this Agreement following Completion.
8.10 Any amount paid by the Vendor hereunder shall be treated as having
reduced by that amount the consideration paid or payable for the
Business and the Assets.
9. LIABILITIES
9.1 Subject to Clauses 9.3, 9.5, 10 and 11, the Vendor shall:
9.1.1 be responsible for, and shall duly and promptly pay
and discharge, all debts payable by it and by each
Subsidiary and claims made by third parties
outstanding against it and each Subsidiary which in
each case are due and payable in the ordinary course
of business up to the date of Completion or arising by
reason of any act or omission by any such person on or
before the date of Completion; and
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<PAGE> 27
9.1.2 notwithstanding anything to the contrary in Clause 8
indemnify the Purchasers on a pound sterling for pound
sterling basis against all losses, liabilities and
costs which the Purchasers may incur arising out of,
or as a consequence of, the ownership or operation of
the Business or any of the Assets by the Vendor or by
any Subsidiary before the date of Completion
(including, without limitation, all losses,
liabilities and costs incurred as a result of
defending or settling any claim (a "SPECIFIED CLAIM")
alleging any such liability).
9.2 Subject to Clauses 9.3, 9.5, 10 and 11 the Purchasers shall:
9.2.1 be responsible for all debts payable by them
respectively after the date of Completion in respect
of the Business and the Assets arising by reason of
any act or omission by any of them after the date of
Completion; and
9.2.2 indemnify the Vendor and the Subsidiaries against all
losses, liabilities and costs which the Vendor and the
Subsidiaries may incur arising out of, or as a
consequence of, the ownership or operation of the
Business or any of the Assets after the date of
Completion (including, without limitation, all losses,
liabilities and costs incurred as a result of
defending or settling any claim (a "SPECIFIED CLAIM")
alleging any such liability).
9.3 If either party (the "INDEMNIFIED PARTY") becomes aware of any
matter which might give rise to a Specified Claim, the following
provisions shall apply:
9.3.1 the Indemnified Party shall immediately give written
notice to the other party (the "INDEMNIFYING PARTY")
of the matter (stating in reasonable detail the nature
of the matter and, so far as practicable, the amount
claimed) and shall consult with the Indemnifying Party
with respect to the matter. If the matter has become
the subject of any proceedings the Indemnified Party
shall give the notice within sufficient time to enable
the Indemnifying Party time to contest the proceedings
before any final judgment;
9.3.2 the Indemnified Party shall:
(a) take such action and institute such
proceedings, and give such information and
assistance, as the Indemnifying Party or its
insurers may reasonably request to:
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<PAGE> 28
(i) dispute, resist, appeal,
compromise, defend, remedy
or mitigate the matter; or
(ii) enforce against any person
(other than the Indemnifying
Party) the rights of the
Indemnified Party or its
insurers in relation to the
matter; and
(b) in connection with any proceedings related to
the matter (other than against the
Indemnifying Party) use professional advisers
nominated by the Indemnifying Party or its
insurers and, if the Indemnifying Party so
requests, allow the Indemnifying Party or its
insurers the exclusive conduct of the
proceedings,
in each case on the basis that the Indemnifying Party
shall fully indemnify the Indemnified Party for all
reasonable costs incurred as a result of any request
or nomination by the Indemnifying Party or its
insurers;
9.3.3 if the Purchasers are the Indemnified Party, Clause
9.3.2 shall not apply if the request or nomination by
the Vendor or its insurers would in the Purchasers'
reasonable opinion prejudice its relationship with any
customer or supplier of the Business;
9.3.4 the Indemnified Party shall not admit liability in
respect of or settle the matter without the prior
written consent of the Indemnifying Party, such
consent not to be unreasonably withheld or delayed.
9.4 Save in respect of Nexus Mailers, the Vendor shall forthwith upon
receipt of the same account to the Purchasers for any payments
made in respect of Trade Debts or payments received from third
parties by any member of the Vendor's Group after Completion in
respect of photoprocessing services rendered by the Purchasers in
carrying on the Business at anytime on or after Completion.
9.5.1 Subject to Clause 9.5.2, the Purchasers shall be
responsible for settling all claims made by customers
of the Business relating to any defective services
provided by the Business prior to Completion up to an
aggregate maximum payment of pounds sterling 10,000
and thereafter the Vendor shall be responsible for
settling all such claims.
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9.5.2 The provisions of Clause 9.5.1 shall not include any
claims made by customers of the Business relating to
any services provided by the Business prior to
Completion which are the subject matter of any civil,
criminal, arbitration or other proceedings.
10. TRADE CREDITS AND TRADE DEBTS
10.1 The Purchasers shall discharge the Trade Credits listed in
Schedule 7 by the dates specified in that Schedule.
10.2 The Purchasers shall collect the Trade Debts.
10.3 Upon request by the Purchasers the Vendor shall render all
reasonable assistance to the Purchasers to enable the Purchasers
to collect the Trade Debts.
10.4 Any monies received by any member of the Vendor's Group in respect
of the Trade Debts shall be paid as soon as reasonably practicable
after their receipt to Nashua.
10.5 To the extent practicable the Vendor will, and will procure that
the Subsidiaries will, do all such things as are reasonably
required of them by the Purchasers to transfer to the Purchasers
the operation of the bank accounts used by the Vendor and the
Subsidiaries in carrying on the Business in Holland, Belgium and
Spain in and towards giving effect to the provisions of Clause 10.
11. CONTRACTS
11.1 Subject to Clause 11.3.3, after Completion the Purchasers shall
perform all their obligations under the Contracts in a proper and
workmanlike manner and shall indemnify the Vendor against all
losses, liabilities and costs which the Vendor may incur arising
out of, or as a consequence of, the performance of the Purchasers'
obligations under each Contract after the date of Completion
(including, without limitation, all losses, liabilities and costs
incurred as a result of defending or settling any claim alleging
any such liability).
11.2 The Vendor shall indemnify the Purchasers against all losses,
liabilities and costs which the Purchasers may incur arising out
of, or as a consequence of, the performance of the obligations of
the Vendor and any Subsidiary under each Contract to the extent
that the loss, liability or cost is attributable to the period
prior to the date of Completion (including, without limitation,
all losses, liabilities and costs incurred as a result of
defending or settling any claim alleging any such liability).
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<PAGE> 30
11.3 If any of the Contracts cannot be transferred to the Purchasers
except by an assignment made with the consent of another party or
by an agreement of novation, then the following provisions shall
apply:
11.3.1 this Agreement shall not constitute an assignment or
an attempted assignment of the Contract if the
assignment or attempted assignment would constitute a
breach of the Contract;
11.3.2 if so required by the Purchasers after Completion, the
Vendor shall use its reasonable endeavours to obtain
the consent of the other party to the assignment, or
to procure the novation, of the Contract;
11.3.3 until the consent or novation is obtained, the Vendor
shall do all such acts and things as the Purchasers
may reasonably require to enable due performance of
the Contract and to provide for the Purchasers the
benefits of the Contract (including enforcement at the
cost and for the account of the Purchasers of any
right of the Vendor or any Subsidiary against the
other party to the Contract arising out of its
termination by the other party or otherwise) and the
Purchasers shall reimburse the Vendor in respect of
all reasonable costs and expenses properly incurred in
the performance of its obligations under this Clause
11.3.3 and shall on behalf of the Vendor discharge any
obligations or liabilities in each case arising as a
result of such performance and discharge by the Vendor
(other than any such obligations or liabilities which
arise as a result of the negligence or misconduct of
the Vendor in carrying out its obligations under
Clause 11.3.3) and shall provide all reasonable
facilities and assistance to the Vendor free of charge
for such purpose and indemnify and keep indemnified
the Vendor against all costs claims expenses and
liabilities that may arise in the performance of its
obligations under this Clause 11.3.3 (other than any
such costs, claims, expenses and liabilities that may
arise as a result of the negligence or misconduct of
the Vendor in the performance of its obligations under
this Clause 11.3.3).
11.4 Nothing in Clause 11.3 shall oblige the Vendor to carry out
photoprocessing services on behalf of the Purchasers after
Completion.
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12. EMPLOYEES AND PENSIONS
12.1 The Parties agree that the relevant provisions of Netherlands
labour law and in particular article 7A: 1639 aa et seq. of the
Netherlands Civil Code apply to the transfer of the Business and
the Assets and that in accordance with these provisions the
contracts of employment of each of the Dutch Employees shall have
effect after Completion as if originally made between each of
those Employees and the Dutch branch of Nederland respectively.
12.2 The Parties agree that the relevant provisions of Belgian labour
law and in particular the Collective Labour Agreement 32 bis apply
to the transfer of the Business and the Assets and that in
accordance with these provisions the contracts of employment of
each of the Belgian Employees shall have effect after Completion
as if originally made between each of the Belgian Employees and
the Belgian branch of Nederland respectively.
12.3 The Vendor will indemnify and keep indemnified on a continuing
basis and fully reimburse on demand the Purchasers against all and
any awards, losses, damages, costs, demands, liabilities,
penalties, interest and expenses (including all reasonable legal
fees) which the Purchasers and/or any member of the Nashua Group
may suffer, sustain, incur, pay or be put to by reason or on
account of or arising from any action, claim or other legal
recourse of any kind whatsoever (including for the avoidance of
doubt the settlement of any action, claim or other legal recourse)
by:-
12.3.1 any Employee or any Union recognised in relation to
any of the Employees arising directly or indirectly
from any act or omission or continuing act or omission
of any member of the Vendor's Group on or prior to
Completion;
12.3.2 any present or former employee of any member of the
Vendor's Group (other than an Employee) or any Union
recognised in relation to any such present or former
employees arising from any act or omission or
continuing act or omission of any member of the
Vendor's Group on or prior to or following Completion;
or
12.3.3 any employee or former employee of any member of the
Vendor's Group or any Employees in respect of any ex
gratia payment arrangements (including without
limitation in relation to Mr H D Smith, Mr J Smyth,
Mrs M Morley, Mr K Grace and Mr E McGuigen) whether
arising on or prior to or following Completion).
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<PAGE> 32
12.4 The Purchasers will indemnify and keep indemnified on a continuing
basis and fully reimburse on demand the Vendor against all and any
awards, losses, damages, costs, demands, liabilities, penalties,
interest and expenses (including all reasonable legal fees) which
the Vendor and/or any member of the Vendor's Group may suffer,
sustain, incur, pay or be put to by reason or on account of or
arising from any action, claim or other legal recourse of any kind
whatsoever (including for the avoidance of doubt the settlement of
any action, claim or other legal recourse) by any Belgian Employee
arising directly or indirectly from any act or omission of any
member of the Nashua Group after Completion.
12.5 If, by virtue of the application of the Employment Regulations and
of this Agreement:-
12.5.1 any contract of employment (other than that of an
Employee) has effect after Completion as if originally
made between the Purchasers or any other member of the
Nashua Group and any present or former employee of any
member of the Vendor's Group; or
12.5.2 any agreement with a Union representing employees or
former employees of any member of the Vendor's Group
(other than in relation to Employees) has effect after
Completion as if originally made between the
Purchasers or any other member of the Nashua Group and
any such Union
then the Purchasers shall within 60 days of becoming aware of any
such contract of employment or agreement with a Union be entitled
to terminate such contract or agreement forthwith and without
notice and the Vendor shall indemnify and keep indemnified on a
continuing basis and fully reimburse on demand the Purchasers
and/or any other member of the Nashua Group in respect of all
losses, damages, costs, demands, liabilities, penalties, interest
and expenses (including all reasonable legal fees) arising out of
or in relation to such contract or agreement (whether arising
before on or after the Completion) or the termination thereof.
12.6 Both parties in consultation with one another shall agree upon how
the Vendor will comply and the Vendor will fully comply and the
Vendor will procure, as necessary, that each member of the
Vendor's Group will fully comply with all obligations to inform
and consult with any Union in relation to the implementation
and/or effect of this Agreement (where any such obligations arises
under the Employment Regulations).
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<PAGE> 33
12.7 The Vendor and the Purchasers shall implement the pension
arrangements set out in Schedule 8.
12.8 As soon as reasonably practicable after Completion the Vendor and
the Purchasers shall send letters to the Employees in a form to be
agreed.
12.9 In the event that the employment of either of Messrs Ferry or
Sillon is terminated within the period of 2 months from Completion
the Vendor shall thereupon pay to the Purchasers by way of
contribution to the compensation payable upon either such
termination any amount payable to Messrs. Sillon or Ferry upon
their termination in excess of six months termination costs which
termination commences on notification thereof and such termination
costs include any payment attributable to any period of notice.
12.10 The Purchasers hereby undertake to pay the sum of pounds sterling
16,000 to the Nashua Cash Balance Plan, such sum to be applied
solely to or for the benefit of the Employees (which sum has been
taken into account for the purposes of calculating the
Consideration).
13. VALUE ADDED TAX
13.1 The parties shall use their respective reasonable endeavours to
secure that the transfer of the Assets under this Agreement is
treated under the Value Added Tax (Special Provisions) Order 1992
(or equivalent legislation in any other jurisdiction in which the
Business operates) as neither a supply of goods nor a supply of
services.
13.2 Notwithstanding Clause 13.1 if value added tax (or equivalent tax
in any other jurisdiction in which the Business operates) is
chargeable on the transfer of any of the Assets under this
Agreement, the Purchasers shall (against delivery of tax invoices
in respect of the Assets) pay the amount of such tax in addition
to the consideration payable under Clause 3.
13.3 At Completion the Vendor shall deliver to the Purchasers all
records referred to in section 49 of the VATA (or equivalent
legislation in any jurisdiction in which the Business operates).
After Completion the Vendor shall not make any request to H.M.
Customs and Excise (or equivalent authority in any jurisdiction in
which the Business operates) for the records to be taken out of
the custody of the Purchasers. During the period for which the
records are required to be preserved under paragraph 6 of Schedule
11 to the VATA (or equivalent legislation in any jurisdiction in
which the Business
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<PAGE> 34
operates) (duty to keep records), the Purchasers shall give the
Vendor reasonable access to the records for the purpose of
inspecting the records and making copies of them.
14. POST-COMPLETION OBLIGATIONS
14.1 As from Completion until title in the Assets has effectively been
vested in the Purchasers the Vendor shall hold the Assets in trust
for the Purchasers.
14.2 Each party shall forthwith pass to the other any payment, notice,
correspondence, information or enquiry in relation to the Business
or the Assets which it receives after Completion and which
properly belongs to the other.
14.3 At or as soon as practicable after Completion the parties shall
send a joint letter in the agreed form to each wholesale customer
(excluding mail order customers), client and supplier of the
Business advising it of the purchase of the Business and the
Assets by the Purchasers.
14.4 Notwithstanding anything to the contrary in Clause 8 the Vendor
will on a pounds sterling for pounds sterling basis indemnify and
keep indemnified on a continuing basis and will fully reimburse on
demand the Purchasers and any other member of the Nashua Group
from and against all and any taxes and duties which the Purchasers
and/or any other member of the Nashua Group may suffer, sustain,
incur, pay or be put to by reason of or on account of or arising
from the Reorganisation.
14.5 International and Investments will indemnify and keep indemnified
on a continuing basis and will fully reimburse on demand
ColourCare International S.A. from and against all transfer taxes
which it may suffer, sustain, incur, pay or be put to (including
any penalties in connection therewith) by reason of or on account
of or arising from the Hivedown Agreement.
14.6 The Vendor shall, and shall procure that any member of the
Vendor's Group will, abide by the terms and conditions of the
Scandinavian trade mark licence agreement entered on 12 January
1995 between ColourCare International S.A., Colourcare
International Limited and Fotoknudsen AS (the "Scandinavian
Licence Agreement"), from the date of this Agreement until the
completion of the sale by the Vendor of its Scandinavian
business,as if the Vendor and any member of the Vendor's Group,
were named as licensee in the Scandinavian Licence Agreement and
until such completion the Purchasers shall consent to such
reasonable changes to the Scandinavian Licence Agreement as the
Vendor may request. The Scandinavian Licence Agreement is an
agreed form document for the purposes of this Agreement.
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<PAGE> 35
15. CONFIDENTIAL INFORMATION
15.1 The Vendor shall:
15.1.1 not, and shall procure that no member of the Vendor's
Group will, at any time after the date of this
Agreement use or disclose to any person any
Confidential Information or Know-How which may be
within or may come to its knowledge; and
15.1.2 use its, and shall procure that each member of the
Vendor's Group will use its, best endeavours to
prevent the disclosure of any Confidential Information
or Know-How.
15.2 Clause 15.1 shall not apply to:
15.2.1 disclosure of any Confidential Information or Know-How
to officers or employees of the Purchasers whose
province it is to know about the Confidential
Information or Know-How;
15.2.2 use or disclosure of any Confidential Information or
Know-How required by law;
15.2.3 disclosure of any Confidential Information or Know-How
to any professional adviser for the purpose of
advising the Vendor on terms that this Clause 15 shall
apply to any use or disclosure by the professional
adviser; or
15.2.4 any Confidential Information or Know-How which comes
into the public domain otherwise than by breach of
this Clause 15 by any member of the Vendor's Group.
15.3 The Purchasers shall treat as confidential all information about
the Vendor's retained business obtained as a result of its due
diligence exercises prior to the date hereof or the entry into and
performing of the terms of this Agreement unless such information
is required to be used or disclosed in order to operate the
Business or is required to be disclosed by law or the rules of any
regulatory authority to which any member of the Nashua Group may
from time to time be subject.
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<PAGE> 36
16. USE OF INTELLECTUAL PROPERTY RIGHTS
16.1 The Vendor shall not, and shall procure that no member of the
Vendor's Group will, either alone or jointly with, through or as
manager, adviser, consultant or agent for any person, directly or
indirectly use or authorise, encourage or assist any person to use
in connection with any business which competes, directly or
indirectly, with the Business as carried on at the date of this
Agreement, any of the Intellectual Property Rights (in particular,
any name consisting of or including the words "MaxiColor" "Trifca"
and "Belmont") or use in that connection anything which is
intended or is likely to be confused with, any of the Intellectual
Property Rights.
16.2 The Vendor shall procure that forthwith upon Completion the name
of any member of the Vendor's Group which is identical to or
substantially similar to any of the Intellectual Property Rights
is changed to a name which does not consist of or include any such
name or any name confusingly similar thereto.
16.3 The Purchasers shall use all reasonable endeavours as soon as
possible after Completion to substitute for any film, envelopes,
wallets or other promotional material bearing the ColourCare trade
mark (or any trade mark comprising the word ColourCare and
associated logo) films or materials not bearing such trade marks
or logo and shall in any event so desist within three months
following Completion and subject thereto shall have the right to
use disseminate supply and sell materials and products of the same
description as those comprised in the Stocks within the period
aforesaid.
17. FURTHER VENDOR'S UNDERTAKINGS
The Vendor shall not, and shall procure that no member of the
Vendor's Group will nor any successor to its or their business
will, for a period of five years after the date of this Agreement
either alone or jointly with, through or as manager, adviser,
consultant or agent for any person, directly or indirectly:
17.1 carry on, or be engaged, concerned or interested in,
or assist, any business which competes, directly or
indirectly, with the Business in Belgium, France,
Holland, Spain, Portugal, Italy, Northern Ireland and
Eire (the "RESTRICTED BUSINESS"); and
17.2 solicit or contact with a view to the engagement or
employment by any person, any employee, officer or
manager of the Restricted Business or any person who
has been an employee, officer or manager of the
Restricted Business in either case where the employee,
officer or manager either was as
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<PAGE> 37
a part of his duties privy to Confidential Information
or Know-How or would be in a position to exploit the
trade connections of the Restricted Business; and
17.3 do or say anything which is harmful to the reputation
of the Business or which may lead any person to cease
to deal with the Business on substantially equivalent
terms to those previously offered or at all,
with the intent that each of the foregoing shall constitute an
entirely separate and independent restriction on the Vendor and
each member of the Vendor's Group.
18. ANNOUNCEMENTS
18.1 Subject to Clause 18.2, no public announcement, communication or
circular concerning the transactions referred to in this Agreement
shall be made or despatched at any time (whether before or after
Completion) by either party without the prior written consent of
the other party (such consent not to be unreasonably withheld or
delayed).
18.2 Where the announcement, communication or circular is required by
law or any regulation or rule of any stock exchange it shall so
far as is practicable be made by a party after consultation with
the other party and taking into account the reasonable
requirements (as to timing, content and manner of making or
despatch of the announcement, communication or circular) of the
other party.
19. COMPETITION
Notwithstanding any other provision of this Agreement, no
provision of this Agreement, or of any agreement or arrangement of
which it forms part, by virtue of which this Agreement, or any
agreement or arrangement of which it forms part, is subject to
registration under the Restrictive Trade Practices Acts 1976 and
1977 shall take effect until the day after the date on which
particulars thereof have been furnished to the Director General of
Fair Trading in accordance with the requirements of those Acts.
20. COSTS
Except as otherwise expressly provided in this Agreement, each
party shall pay its own costs of and incidental to the
negotiation, preparation, execution and implementation by it of
this Agreement and of all other documents referred to in it.
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21. FURTHER ASSURANCE
21.1 At any time (whether before or after Completion) any party shall
(at its cost) do and execute, or procure to be done and executed,
all necessary acts, deeds, documents and things as may be
reasonably requested of it by the other parties to give effect to
this Agreement including, without limiting the generality of the
foregoing, doing all such things as may be required to evaluate
the transfer of such of the Assets as may be determined by
Nederland to branch offices established or to be established by
Nederland in Spain and Belgium and by Northern Ireland and in the
Republic of Ireland.
21.2 The Vendor agrees to provide, and will procure that each member of
the Vendor's Group will provide, such assistance as Northern
Ireland may reasonably require in the two month period following
Completion in order to resolve any queries or problems which may
arise directly or indirectly by virtue of the use by Northern
Ireland in Northern Ireland and in the Republic of Ireland of the
Management Information System licensed to Northern Ireland on the
terms and conditions of the Computer Software Licence.
21.3 Without prejudice to Clause 21.2, the Vendor agrees to maintain in
good order, and agrees to procure that the Subsidiaries will
maintain in good order, the data generated by the Business until
such time as the Purchasers convert individual third party
software to the Purchasers own system at Deal, Boulogne and
Belmont. At such time, the Vendor agrees to supply standard ascii
data files with two year history including record layouts to the
Purchasers and shall also provide such assistance as may
reasonably be required. Nashua shall reimburse the Vendor for all
reasonable out of pocket costs and expenses properly incurred in
providing the same including travel costs, telephone costs and
other third party costs provided that the same are previously
authorised by Nashua.
21.4 Northern Ireland agrees to provide such assistance as the Vendor's
Group may reasonably require in order to pursue any claim it may
have in respect of item 5 of Schedule 1.
21.5 The Purchasers shall afford to the Vendor's Group reasonable
access during normal business hours to the Confidential
Information for the purpose of enabling the Vendor's Group to
complete its accounts and comply with similar statutory and other
obligations Provided that the Vendor shall use its reasonable
endeavours to avoid disrupting the business carried on by the
Purchasers in exercising this right and shall keep such
information confidential.
21.6 The Vendor shall, if and when requested by the Purchasers or any
of them, provide the Purchasers with such evidence of the prior
use of any of the Intellectual Property Rights
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<PAGE> 39
being trade and/or service marks, as the Vendor or any member of
the Vendor's Group may have available and the Purchasers require.
21.7 The Vendor shall execute confirmatory assignments of the
Intellectual Property Rights which shall be delivered to the
Purchasers within three months after Completion, to assist with
effecting recordal of change of ownership.
21.8 The Vendor shall cooperate with the Purchasers at the expense of
the Purchasers to ensure that the Purchasers may, at their option,
continue the prosecution or defence of the applications, and any
renewals, oppositions, revocation actions or similar proceedings
relating to the Intellectual Property Rights and, if requested by
the Purchasers, shall on reimbursement by the Purchasers of any
costs incurred:
21.8.1 assign, or procure the assignment of, to the
Purchasers or any of them, the right to continue such
prosecution or defence; or
21.8.2 continue, or procure the continuance of, such
prosecution or defence in the Vendor's name at the
Purchasers' cost and under the Purchasers' control
provided that the Purchasers shall indemnify the
Vendor against any cost or expense that the Vendor may
incur thereby.
22. GENERAL
22.1 No variation of this Agreement or of any of the documents in the
agreed form shall be valid unless it is in writing and signed by
or on behalf of each of the parties.
22.2 The failure to exercise or delay in exercising a right or remedy
under this Agreement shall not constitute a waiver of the right or
remedy or a waiver of any other rights or remedies and no single
or partial exercise of any right or remedy under this Agreement
shall prevent any further exercise of the right or remedy or the
exercise of any other right or remedy.
22.3 The rights and remedies of the Purchasers provided in this
Agreement are cumulative and not exclusive of any rights and
remedies provided by law.
22.4 The invalidity, illegality or unenforceability of any provision of
this Agreement shall not affect or impair the continuation in
force of the remainder of this Agreement.
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<PAGE> 40
22.5 Except to the extent that they have been performed and except as
expressly provided in this Agreement the Warranties, indemnities,
undertakings, and obligations contained in this Agreement shall
remain in full force and effect notwithstanding Completion.
22.6 With effect from Completion Northern Ireland will be responsible
for the due observance of the terms of the IDB Grant (as the same
may be varied by agreement between Northern Ireland and the
Industrial Development Board for Northern Ireland ("IDB")) save
that the Vendor shall remain responsible to the IDB in respect of
any breach of the terms of the IDB Grant occurring prior to
Completion and shall indemnify the Purchasers against any
liability in respect thereof accordingly.
22.7 In respect of the sale by ColourCare International B.V. and
ColourCare International Limited to Nederland of the Belgian
Assets:-
22.7.1 The Vendor shall procure the issue to Nederland on or
as soon as possible after Completion of an appropriate
VAT invoice in respect of the Belgian Assets;
22.7.2 Nederland shall on Completion pay to ColourCare
International B.V. the purchase price of the Belgian
Assets plus the amount of VAT payable thereon;
22.7.3 Simultaneously with 22.7.2 above the Vendor shall pay
to Nederland, an amount equal to the VAT referred to
above;
22.7.4 As and when Nederland recovers VAT it shall repay to
the Vendor the sum referred to in 22.7.3 above as soon
as reasonably practicable after its recovery;
22.7.5 Nederland undertakes to use its reasonable endeavours
to secure the receipt of VAT to give effect to the
provisions of 22.7.4 above.
23. ASSIGNMENT
Neither party shall assign or transfer or purport to assign or
transfer any of its rights or obligations under this Agreement
except that the benefit of the Warranties may be assigned in whole
or in part only to another member of the Nashua Group for so long
as such person continues to be a member of the Nashua Group and
without restriction by the person for the time being entitled to
the benefit of the Warranties.
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<PAGE> 41
24. GUARANTEE
24.1 In consideration for the Vendor entering into this Agreement
Nashua irrevocably and unconditionally guarantees to the Vendor
the due and punctual performance of all the obligations and
liabilities under this Agreement of the Purchasers.
24.2 This Guarantee is a continuing security and shall remain in force
until all moneys now or hereafter payable by and all obligations
and liabilities of each of the Purchasers under this Agreement
have been paid discharged or satisfied in full notwithstanding the
liquidation administration or other incapacity or any change in
the constitution of any one or more of the Purchasers or in the
name and style thereof or any settlement of account or other
matter whatsoever but the Vendor may release any one or more of
the Purchasers and notwithstanding any such release this Guarantee
shall remain a continuing security binding on Nashua.
24.3 This Guarantee is in addition to any other right remedy guarantee
indemnity or security and may be enforced notwithstanding the same
or any other mortgage charge pledge or lien now or hereafter held
by or available to the Vendor or any member of the Vendor's Group.
24.4 Nashua shall not be exonerated nor shall its liability hereunder
be lessened or impaired by any time, indulgence or relief being
given by the Vendor to the Purchasers or by any amendment of or
supplement to this Agreement, or any other document, or by the
taking, variation, compromise, renewal, release of, refusal or
neglect to perfect or enforce any right, remedies or securities
against the Purchasers or by anything done or omitted which but
for this provision might operate to exonerate such company.
24.5 The Purchasers hereby waive all rights the Purchasers may have of
first requiring the Vendor to proceed against or enforce any
guarantee or security of, or claim payment from the Purchasers.
25. NOTICES
25.1 Any notice or other communication under or in connection with this
Agreement shall be in writing and shall be delivered personally or
by post or sent by telefax to the party due to receive the notice
or communication at its address set out in this Agreement or such
other address as any party may specify by notice in writing to the
other. Such notices or other communication shall, if sent to the
Vendor, be marked for the attention of Frank Brenan with a copy to
Geoffrey Pickerill at the Vendor's Solicitors and if sent to the
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<PAGE> 42
Purchasers or to Nashua shall be sent to Nashua, marked for the
attention of the President of Nashua with a copy to Counsel of
Nashua.
25.2 In the absence of evidence of earlier receipt, any notice or other
communication shall be deemed to have been duly given:
25.2.1 if delivered personally, when left at the address
referred to in Clause 25.1; and
25.2.2 if sent by post, two days after posting the properly
stamped and addressed letter, six days if air-mail;
25.2.3 if sent by telefax, on completion of its transmission.
25.3 For the purposes of serving notices by telefax, the following
telefax numbers shall be used, unless either party specifies an
alternative number by notice in writing to the other:-
The Vendor : Frank Brenan 0722 411213
Geoffrey Pickerill 071 379 6854
Nashua: The President 0101 603 880 2747
Counsel 0101 603 880 2747
26. GOVERNING LAW AND JURISDICTION
26.1 This Agreement is governed by, and shall be construed in
accordance with, English law.
26.2 Each party irrevocably agrees for the benefit of the Purchasers
that the courts of England shall have exclusive jurisdiction to
hear and determine any suit, action or proceedings, and to settle
any disputes, which may arise out of or in connection with this
Agreement (respectively, "PROCEEDINGS" and "DISPUTES") and, for
such purposes, irrevocably submits to the jurisdiction of the
courts of England.
26.3 Each party irrevocably waives any objection which it might at any
time have to the courts of England being nominated as the forum to
hear and determine any Proceedings and to settle any Disputes and
agrees not to claim that the courts of England are not a
convenient or appropriate forum.
26.4 Each party agrees that the process by which any Proceedings are
begun in England may be served on the Vendor by being delivered in
accordance with Clause 25. Nothing
- 39 -
<PAGE> 43
contained in this Clause 26.4 shall affect the right to serve
process in any other manner permitted by law.
26.5 The submission to the jurisdiction of the courts of England shall
not (and shall not be construed so as to) limit the right of the
Purchasers to take Proceedings against the Vendor in any other
court of competent jurisdiction, nor shall the taking of
Proceedings by the Purchasers in any one or more jurisdictions
preclude the Purchasers taking Proceedings in any other
jurisdiction (whether concurrently or not) if and to the extent
permitted by applicable law.
27. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each
of which when executed and delivered shall be an original, but all
the counterparts together shall constitute one and the same
instrument.
- 40 -
<PAGE> 44
SCHEDULE 1
EXCLUDED ASSETS AND EXCLUDED LIABILITIES
1. Any cash in hand and at bank.
2. Nexus Mailers
3. The shares in the following companies:
ColourCare International B.V.;
ColourCare International S.L.;
Newbridge Photographic B.V.;
ColourCare International (Northern Ireland) Limited;
Freeprint Limited;
Trifca International S.A;
Wilco S.A;
ColourCare France S.A.; and
ColourCare International Limited.
4. Any intra-company and inter-company balances of the Vendor's
Group.
5. Any amounts owed by London International Group plc to the Vendor's
Group or by any member of the Vendor's Group to London
International Group plc.
6. Excluded Liabilities are the liabilities of the Subsidiaries
(other than those (not being Encumbrances) directly attaching to
the Assets or incidental thereto) which excluded Subsidiaries
liabilities include, without limiting the generality of the
foregoing, any litigation, tax liabilities or liabilities for past
service for ex-employees and current employees of the Business
(except in so far as such liabilities for past service relate to
the Business carried out by the Belgian branch of ColourCare
International B.V.).
- 41 -
<PAGE> 45
SCHEDULE 2
INTELLECTUAL PROPERTY RIGHTS
PART A: PRINCIPAL TRADE MARK REGISTRATIONS AND APPLICATIONS
<TABLE>
<CAPTION>
Regn No
Country Trade Mark (Appln No) Class
------- ---------- ---------- -----
<S> <C> <C> <C>
Benelux TRIFCA word 330747 1, 9, 16
Benelux TRIFCA word 488871 37, 39, 40, 42
Benelux TRIFCA 3 print word device and 488872 1, 9, 16, 37,
numeral 39, 40, 42
Benelux TRIFCA SUPERCOLOR words 495363 1
Denmark TRIFCA word 3628/90 1, 9, 16, 37,
40, 42
Eire BELMONT stylised word 140636 1
Eire BELMONT stylised word 140637 9
Eire BELMONT stylised word 140638 16
Eire BELMONT WORLD OF COLOUR and (4196/92) 1
Device
Eire BELMONT and Device (4197/92) 16
Finland TRIFCA word 108653 1, 9, 16, 37,
40, 42
Finland TRIFCA word 112671 35, 38
France TRIFCA word 1200869 1, 9, 16, 40
France TRIFCA and device 1722924 1, 16, 39, 40
Norway TRIFCA word 124866 1, 9, 16, 37,
40, 42
Norway TRIFCA word 133408 1, 9, 16, 37,
40, 42
Portugal LABOPOST word (289659) 16
Portugal LABOPOST word (289660) 39
Portugal LABOPOST word (289661) 40
Portugal LABOPOST word (289658) 1
</TABLE>
- 42 -
<PAGE> 46
<TABLE>
<CAPTION>
Regn No
Country Trade Mark (Appln No) Class
------- ---------- ---------- -----
<S> <C> <C> <C>
Spain LABOPOST word (1656909) 1
Spain LABOPOST word 785616 16
Spain LABOPOST word 853284 39
Spain LABOPOST word 853285 40
Sweden TRIFCA word 227879 1, 9, 16, 37,
40, 42
UK BELMONT word and device B1290991 40
UK BELMONT WORLD OF COLOUR FOTO B1508120 1
SERVICES words and device
UK BELMONT WORLD OF COLOUR and B1508121 16
device
UK BELMONT WORLD OF COLOUR FOTO B1508122 40
SERVICES and device
UK TRIFCA 3 PRINTS words and B1470759 40
device
</TABLE>
PART B: OTHER TRADE MARK REGISTRATIONS AND APPLICATIONS
<TABLE>
<CAPTION>
Regn No
Country Trade Mark (Appln No) Class
------- ---------- ---------- -----
<S> <C> <C> <C>
Benelux FOTO-POST word 339232 1, 9, 16
Benelux HOT BOX words 531675 9
Denmark HOT BOX words 03665/1993 9
Eire HOT BOX (252/93) 9
Eire FOTOSPEED (3219/92) 1
Eire FOTOSPEED (3220/92) 9
Eire FOTOSPEED (3221/92) 16
Finland HOT BOX words 130229 9
</TABLE>
- 43 -
<PAGE> 47
<TABLE>
<CAPTION>
Regn No
Country Trade Mark (Appln No) Class
------- ---------- ---------- -----
<S> <C> <C> <C>
France FOTO-POST word 1377704 1, 9, 16
France HOT BOX words 93471015 1
France HOT BOX words 93451870 9
France TRI-photo words 1194949 1, 9, 16, 28,
35, 40, 41, 42
Germany HOT BOX U8814/9WZ 9
Norway HOT BOX words 163359 9
Spain BARACOLOR word 1580227 39
Spain BARACOLOR LABOPOST word 785617 16
Spain BIFOTOSOLIS word 1051119/9179 16
Spain HOT BOX words 1742618 9
Spain LABOFOT LABOPOST word 785614 16
Spain SOLISCOLOR word 1326080 40
Spain TRIPRINT word 796183 16
Sweden HOT BOX words 259505 9
UK HOT BOX word B1529110 9
</TABLE>
PART C: TRADE AND BUSINESS NAMES AND UNREGISTERED TRADE MARKS
<TABLE>
<CAPTION>
Name or mark Area of Use Nature and Extent of Use
------------ ----------- ------------------------
<S> <C> <C>
MAXICOLOR
MAXICOLOUR
TRIFCA
TRIFKA
</TABLE>
- 44 -
<PAGE> 48
<TABLE>
<CAPTION>
Name or mark Area of Use Nature and Extent of Use
------------ ----------- ------------------------
<S> <C> <C>
LABORATOIRE TISA
TISA LABORATOIRE TRI PHOTO
LABOPOST
PRIVATE COLLECTION PHOTO SERVICE
BELMONT
FREEPRINT
SOLISCOLOR
NAPCOLOUR
QUALIFOTO
BONUSCOLOUR
</TABLE>
- 45 -
<PAGE> 49
SCHEDULE 3
THE PROPERTY
PART A: PARTICULARS OF THE PROPERTY
NORTHERN IRELAND:
1. Property : The leasehold property situated at 8
Michelin Road, Mallusk, Newtonabbey,
County Antrim, being the whole of the
land comprised in the lease mentioned
below, and registered under the Folio
number mentioned below.
2. Lease
Lease or Underlease : Lease
Date : 19th June 1979
Parties : The Department of Commerce for
Northern Ireland (1) (present landlord
is Dennison Industrial Estates (N.I.)
Limited)
David Patton & Sons (NI)
Limited (2) (present tenant is Belmont
Photographic Services Limited now
called Colourcare International
(Northern Ireland) Limited)
Term : 99 years from 16th February 1978
Current Rent per annum : 1 Pound Sterling
Rent Review Dates (if any): None
Licences or Deeds (if any): Indenture dated 10 December 1982 made
between Department of Economic
Development for Northern Ireland (1)
Lees Hyman and Lees (Holdings) Limited
(2).
3. Folio Number : 3574L County Antrim
- 46 -
<PAGE> 50
4. Type of Title : Good Leasehold
5. Use : Commercial and Industrial
6. Third Party Interests (if any) : None
7. Occupational Leases (if any) : None
8. Additional Special Conditions :
II. REPUBLIC OF IRELAND
Premises at Old Clare Street, Limerick held under a Licence dated 28
September 1993 between (1) United Drug Plc and (2) ColourCare
International (Northern Ireland) Limited.
III. ENGLAND
(a)
1. Property : the leasehold property known as land
and factory premises on the north side
of Northwall Road, Deal, Kent being
the whole of the land comprised in the
Lease mentioned below and being the
whole of the land registered under the
Title No. mentioned below
2. Lease
Lease or
Underlease : Lease
Date : 17th October 1974
Parties : Dean Property Holdings Limited(1)
Aspen Garages Limited(2)
C E Ward, K J Baker and Deal &
South Eastern Holdings Limited(3)
Term : 25 years from 24th June 1974
- 47 -
<PAGE> 51
Current rent p.a. : Pounds sterling 28,500 [but
outstanding review due 23/6/94]
Rent review
date(s) : 23/6/94 (last review date)
[if any]
Licence(s) or
deed(s) : (i) Licence to Assign dated 20
[if any] December 1982 between Dean
Property Holdings Limited(1)
Aspen Garages Limited(2)
United Photographic
Laboratories Limited(3)
(ii) Deed of Variation dated 20
December 1982 between Dean
Property Holdings Limited(1)
United Photographic
Laboratories Limited(2)
(iii) Letter of consent to
alterations Dean Property
Holdings Limited to United
Photographic Laboratories
Limited
3. Root of Title : K540921
4. Type of Title : Absolute
5. Use : Photographic processing laboratory.
6. Third Party Interests : None
[if any]
7. Occupational Leases : None
[if any]
8. Additional Special :
Conditions
- 48 -
<PAGE> 52
(b)
1. Property : the leasehold property known as Units
4 and 5, Minters Industrial Estate,
Southwall Road, Deal, Kent being the
whole of the land comprised in the
Lease mentioned below
2. Lease
Lease or
Underlease : Lease
Date : 6th November 1990
Parties : Alfred Charles Maclean Harrhy and
Clive Wayley Williams(1) Freeprint
Limited(2)
Term : 5 years from 24th June 1990
Current rent p.a. : Pounds sterling 9,000
Rent review
date(s) : None remaining
[if any]
Licence(s) or
- 49 -
<PAGE> 53
supplementary
deed(s) : None
[if any]
3. Root of Title : The Lease
4. Use : Use within Classes B1, B2 and
B8 of the Town and Country
Planning (Use Classes) Order
1987 or such other use as may
from time to time be permitted
by the Local Planning
Authority.
5. Third Party Interests : None
[if any]
6. Occupational Leases : None
[if any]
7. Additional Special :
Conditions
IV. BELGIUM
1. Property : 120m2 on the ground floor and
basement and 80m2 on the first
floor of the premises situate
at 1 Rue Victor Corne Mouscron.
2. Lease
Lease or Underlease : Lease
Date : 30 June 1989
- 50 -
<PAGE> 54
Parties : S.A. van immo and Trifca
International B.V. "Maxicolor".
Term : 9 years expiring 31 July 1998
Current Rent per annum : BF 472,500
Additional Special : The parties have expressly
elected to apply Belgian law
Conditions on commercial leases
of 30 April 1951 to the lease
agreement.
3. Use : Offices
4. Third Party Interests : None
5. Occupational Leases (if any) : None
6. Additional Special Conditions :
V NETHERLANDS
1. Property : The commercial premises on
ground and first floor at 107
Weena, Rotterdam.
2. Lease :
Lease or Underlease : Lease
Date : 1 March 1988
Parties : Landlord: Bouw-en Exploitatie
Maatschappij BaKKer van Vorst
B.V. of Hillegom.
Tenant : Trifca International B.V. (now
ColourCare International B. V.)
Term : Second option period until 28
February 1998.
Current rent : NGL 25670.69 for the first
quarter of 1995 rent at 1 March
1988 NLG 87,000 - subject to
indexation in accordance with
consumer price index on 1st
March
- 51 -
<PAGE> 55
1995 (and thereafter annually).
In addition service costs are
payable (advance payment for
such costs for first quarter of
1995 amount to NLG 2,934.99).
3. Use : The ground floor should be used
as shop space/or office space
and the first floor as office
space.
Current use : Offices only
4. Third Party Interests : None
5. Occupational Leases
[if any] : None
6. Additional Special Conditions :
VI SPAIN
1. Property : The leasehold property located
at c/Energia 68-70, Nave num.
2, Poligono del Este, 08094,
Cornella, Barcelona, Spain
2. Lease :
Lease or
Underlease : Lease
Date : 1 June 1991
Parties : Isidro Abello Riera
(Corporacion Abra S.A.)
ColourCare International S.L.
(formerly Labopost S.L.)
Term : 1 March 1995
Current rent pa : Data not available. According
to the contract the annual rent
is 7.249.632 Pts plus 15% VAT.
This amount may currently be
higher, as the monthly rent
might have been increased
annually since the date of the
contract (i.e. 1 June 1991).
Rent review date : The rent is reviewed annually
on 1 March according to
increases/decreases of Spanish
Court of Living Index (IPC).
- 52 -
<PAGE> 56
Licence(s) or
deed(s): N/A
3. Root of Title : The Lease
4. Use : Warehouse
5. Third Party Interests : None
6. Occupational Leases : None
7. Additional Special Conditions :
VII FRANCE
(a)
1. Property : Z. I. de Liane,
62 360 St. Leonard
Boulogne, sur Mer,
France
2. Lease
Lease or
Underlease : Underlease
Date : 18 April 1990
Parties : Head Landlord SILIS
Tenant SERES
Subtenant Colourcare
France S.A.
Term : 1 June 1990 expiry 31 July 1997
Current rent p a : In 1990 400,000 FF p.a. and
TVA (18.6%)
Deposit 100,000 FF
(indexed every year)
Rent review date : 31 July 1977 if lease renewed
Licences or
Deeds : None
3. Root of Title : Lease
- 53 -
<PAGE> 57
4. Use : Sale and rental of
cameras and
photographic equipment
5. Third Party Interests : None
6. Occupational Leases : None
(b)
1. Property : 46 Rue des Meuniers,
92 120 Bagneux, France
2. Lease
Lease or
Underlease : Lease
Date : 3 May 1991
Parties : SCOP les Charpentiers
de Paris(1)
Colourcare France
S.A.(2)
Term : 1 May 1991 expiring 30
April 2000
Current rent p a : In 1991 280,000 FF
p.a. and TVA (18.6%).
Deposit 93,231.50 FF
indexed every year.
Rent review date : Indexed every year.
Licences or
Deeds : None
3. Root of Title : Lease
4. Use : Sale and purchase
import export
distribution of all
products related to
photography, sound and
pictures. Mail Order
business authorised.
No charge of user
clause permitted.
- 54 -
<PAGE> 58
5. Third Party Interests : None.
6. Occupational Leases : None.
PART B: CONDITIONS OF SALE FOR THE PROPERTY SPECIFIED IN PART III OF
PART A OF THIS SCHEDULE (THE ENGLISH PROPERTY)
1. DEFINITIONS
In this part of this Schedule:
"ADDITIONAL SPECIAL CONDITIONS" means the conditions (if any) as
identified as such and set out in the relevant paragraph of a Section
"ASSIGNMENT APPLICATION" means the application to the relevant Landlord
made by or on behalf of the Assignor for the relevant Licence
"ASSURANCE" means the transfer or assignment to the Purchaser of a
Property to be executed pursuant to this Agreement in the agreed form;
"ASSIGNOR" means the Subsidiary which is the tenant under the relevant
Lease;
"LANDLORD" means the reversioner for the time being under any Lease,
and any other person whose consent may, under the terms of the licence,
be required for the assignment referred to in the definition of
"Licence";
"LEASE" means each of the leases, underleases or agreements therefor,
referred to in Part A under the heading "Lease" and any licence and
instrument supplemental to the Lease including any mentioned in those
Sections;
"LICENCE" means such consent of the Landlord as may be required under
the terms of each Lease for its assignment to the Purchaser pursuant to
this Agreement and includes any instrument evidencing the consent
(which shall be made in such form as the relevant landlord may
reasonably require in accordance with the terms of the relevant Lease
and the provisions of this Agreement);
"NATIONAL CONDITIONS" means the National Conditions of Sale (Twentieth
Edition);
- 55 -
<PAGE> 59
"PART" means one of the Parts of this Schedule;
"PLANNING ACTS" means the Town & Country Planning Act 1990, the
Planning (Listed Buildings and Conservation Areas) Act 1990, the
Planning (Hazardous Substances) Act 1990, the Planning (Consequential
Provisions) Act 1990, the Planning and Compensation Act 1991 and all
other applicable town and country planning legislation;
"SECTION" means one of the Sections of Part A; and
"THIRD PARTY INTERESTS" means any matters so referred to in Part A
insofar as they relate to a Property and are still subsisting and
capable of being enforced;
and other terms and conditions are defined in Clause 1 of this
Agreement.
2. POSSESSION
Vacant possession of the Property shall be given at Completion.
3. TITLE
The title to each Property having been deduced to the Purchaser prior
to the date hereof as the Purchaser admits (save for the production of
the relevant Licence in relation to each Property) the Purchaser shall
be deemed to purchase with full knowledge thereof as referred to in the
documents in the Agreed Schedules and shall not be entitled to raise
any requisition thereon or objection thereto save in relation to any
entry on the pre-Completion Land Registry Search (if the title to the
Property is registered) or the HM Land Registry Land Charges Search (if
the title to the Property is unregistered).
4. COVENANTS FOR TITLE
4.1 The Assignor is selling the Property, and in each Assurance shall be
expressed to sell it, as beneficial owner.
4.2 Each Assurance shall contain the following provision (with any
necessary changes):
"Any covenant which is implied [by section 24(1)(a) of the
Land Registration Act 1925] by reason of the Vendor
[transferring/ assigning], and being expressed to
[transfer/assign] as beneficial owner shall be so modified
that it shall not be implied that any of the tenant's
obligations contained in the Lease has been performed or
observed and which, if performed or observed, would put the
Property into a state and condition other than that in which
it now is."
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<PAGE> 60
5. MATTERS AFFECTING PROPERTY
5.1 Each Property is sold subject to any Third Party Interest, and any
Occupational Lease relating thereto and set out in the relevant
Section.
5.2 Each Assurance of a Property shall contain the following provision
(with any necessary changes):
"[ ].1 From the [date of Completion] the Purchaser and its
successors in title shall henceforth during the balance
of the term (including any period of holding over or
other continuation or extension for which the Assignor
is liable under the terms of the Lease:
[ ].1.1 perform and observe all the tenant's obligations
contained in the Lease;
[[ ].1. perform and observe each obligation, restriction,
stipulation or other matter contained or referred
to in the relevant Third Party Interests.]
[ ].2 The Purchaser shall indemnify the Assignor against all
damages, losses, liabilities and costs which the Assignor may
properly incur or suffer as a result of the Purchaser's breach
of its obligations contained in Clause [ ].1 (including,
without limitation, all losses, damages, liabilities and costs
reasonably incurred or suffered as a result of defending or
settling any claim alleging any such liability)."
6. LAND CHARGES AND PLANNING
The Property is also sold subject to:
6.1 All existing rights, privileges, easements, liabilities (and in
particular but without prejudice to the generality of the foregoing
drainage and other service rights or easements) and quasi or reputed
easements affecting any Property.
6.2 All Local Land Charges (whether registered or not before the date
hereof) and all matters capable of registration as Local Land Charges
(whether or not actually registered as such) affecting or relating to
any Property or any part thereof.
6.3 All notices, orders, proposals or requirements (whether registered or
not before the date hereof) affecting or relating to any Property or
any part thereof given or made by any
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<PAGE> 61
government department or by any statutory undertaker or by any public
local authority or other competent authority.
6.4 All actual or proposed charges, orders, proposals, restrictions,
agreements, notices or other matters whatsoever (whether registered or
not before the date hereof) affecting or relating to any Property or
any part thereof or any building or other structure thereon or any part
thereof arising under the Planning Acts.
7. NATIONAL CONDITIONS
7.1 The following conditions of the National Conditions are incorporated
into this Agreement so far as they are not inconsistent with its
express terms:
7.1.1 the whole of condition 6
7.1.2 conditions 11(2), (3) and (4);
7.1.3 conditions 12(2) and (3);
7.1.4 conditions 13(1) (save that the words "and of a statutory
declaration" to the end of Condition 13(1) shall be deleted)
(2) and (3);
7.1.5 the whole of condition 17;
7.1.6 condition 18(1) and (3); and
7.1.7 conditions 19(2), (3) and (4), except that in condition 19(3)
the words "completion date" shall be replaced with the words
"date of Completion", and in condition 19(4) the words "not in
an area of compulsory registration" shall be deleted.
7.2 In the conditions mentioned in paragraph 7.1 of this Part, "working
day" means a "Business Day".
8. WHOLE CONTRACT
The Additional Special Conditions shall be deemed incorporated in this
Agreement insofar as they relate to the sale and purchase of a
Property.
- 58 -
<PAGE> 62
9. EXECUTION OF DUPLICATES
The following provisions shall apply in relation to each Assurance or
any other document required to be executed in respect of a Property
pursuant to this Part of this Schedule:
9.1 The Purchaser shall execute a duplicate or counterpart of the Assurance
or other document; and
9.2 Following execution thereof, the Purchaser shall procure that the
duplicate or counterpart is duly denoted for stamp duty purposes, and that it
is then delivered to the Vendor's Solicitors as soon as practicable.
10. RENT REVIEWS
10.1 in this paragraph, unless the context otherwise requires,
"agreed" and "determined" mean, respectively, agreed or
determined in such manner as shall be legally binding on the
Assignor and "agree", "agreement" and "determination" each has
a corresponding meaning.
10.2 in respect of each Lease under which the rent thereby reserved
is and/or was due to be reviewed at a date prior to the date
of Completion but has not been agreed or determined on or
before such date, the Vendor agrees with the Purchaser to
procure that the Assignor will not on and after the date
hereof quote to nor agree any reviewed rent, nor conduct any
negotiation or otherwise correspond with the Landlord
thereunder or such Landlord's advisers, or any expert or
arbitrator in connection with such rent, without, in each
case, the prior written consent of the Purchaser (such consent
not to be unreasonably withheld or delayed).
10.3 in the event that, on Completion, the amount of any such
reviewed rent has not been agreed with the relevant Landlord
or otherwise determined under the relevant Lease, then the
Purchaser agrees with the Vendor:
(i) that thereafter the Purchaser shall use all reasonable
endeavours to agree or to secure the determination of
such rent as soon as practicable in accordance with
the provisions of the relevant Lease but shall not
quote to nor agree any reviewed rent with the landlord
thereunder or such landlord's advisers or any expert
or arbitrator in connection with such rent without in
each case the prior written consent of the Vendor
(such consent not to be unreasonably withheld or
delayed).
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<PAGE> 63
(ii) that, within ten Business Days after such rent is
agreed with the Landlord under the relevant Lease or
is notified to the Purchaser as having been otherwise
determined in accordance with the terms thereof, the
Purchaser shall notify the Vendor in writing of the
amount thereof; and
(iii) that, on payment of such reviewed rent, or (where
appropriate) the difference between such reviewed rent
and the rent payable by the tenant for the relevant
period, in each case by the Purchaser or by anyone so
authorised by the Purchaser, the Vendor shall within
ten Business Days pay to the Purchaser a proportion
thereof calculated from the relevant review date down
to the close of business on the date of Completion,
and a proportion of any interest due under the terms
of the relevant Lease and, so paid by the Purchaser or
by anyone so authorised by the Purchaser to the
relevant Landlord on such reviewed rent or such
difference (as the case may require) (less tax where
requisite).
11. LICENCE TO BE OBTAINED
11.1.1 The Vendor shall, at its own cost, use all reasonable
endeavours (which shall in this sub-clause mean an obligation
to pursue, commence and proceed with such application
diligently and (subject to an indemnity from the Purchaser in
respect of all reasonable legal and other costs and expenses
properly incurred or to be incurred by the Vendor in relation
thereto (such indemnity to be given in a form satisfactory to
the Vendor) to commence and diligently pursue proceedings in a
court of competent jurisdiction for a declaration that consent
is being unreasonably withheld (unless the Vendor or the
Purchaser shall obtain an opinion from leading counsel that
court proceedings are unlikely to be successful) but shall also
include an obligation (not subject to an indemnity from the
Purchaser) to pay reasonable legal fees properly incurred by
the relevant Landlord to obtain the Landlord's consent (where
required) to the assignment or transfer to the Purchaser of the
Property) to obtain each Licence on or prior to Completion and
(for the avoidance of doubt) the Vendor shall remedy at its own
cost (where capable of remedy) any breach of a Lease which is
resulting in a Landlord reasonably refusing or delaying its
consent to an Assignment Application;
11.1.2 The Purchaser shall supply such reasonable assistance as the
Vendor shall reasonably require to assist the Vendor in
complying with its obligations under this Clause 11 (including
without prejudice to the generality thereof supplying such
financial information, references and corporate information in
respect of the Purchaser as may be properly requested by the
relevant Landlord) but the Purchaser shall not be obliged
- 60 -
<PAGE> 64
to offer any guarantee or surety for the performance of the
tenant's obligations under the relevant lease.
11.1.3 The Vendor will liaise and consult with the Purchaser as to the
progress of all Assignment Applications and shall at reasonable
intervals (upon the Purchaser's solicitors' request) cause to
be supplied to the Purchaser's solicitors status reports as to
progress in obtaining all outstanding Licences.
11.1.4 If the relevant Landlord reasonably so requires the Purchaser
shall execute any Licence (or any other deed agreed between the
parties) in order to give the relevant Landlord a direct
covenant or other appropriate undertaking by the Purchaser to
pay the rents reserved by and to perform and observe its
obligations under the relevant Lease (the covenant to be in
such form as the relevant Landlord may reasonably require).
11.1.5 The Vendor shall procure execution by the Assignor and the
Purchaser shall execute the Licence (if required) and deal
promptly with all correspondence and documentation relating to
such Licence.
11.1.6 The Vendor shall procure that the Vendor's Solicitors deliver
to the Purchaser's solicitors a copy of each completed Licence
within three (3) Business Days of receipt by them of the
original and shall notify the Purchaser's solicitors, as soon
as reasonably practicable following receipt by them of each
such original.
11.1.7 Subject to completion of the relevant Licence, the relevant
Assurance of a Property (being an assignment or transfer of the
relevant Lease as appropriate) shall be completed at
Completion.
12. CONSIDERATION
The purchase price for each Property shall be as stated in Schedule 6.
13. DELIVERY OF TITLE DOCUMENTS
The Vendor shall procure at Completion the delivery of original or
certified copies (as the case may be) of the title deeds and documents
identified in the Agreed Schedules relating to each property for
retention by the Purchaser.
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14. LAW OF PROPERTY (MISCELLANEOUS PROVISIONS) ACT 1989 ("THE ACT")
For the purposes of Section 2 of the Act the parties hereto acknowledge
the terms of this Agreement constitute so far as concerns the sale or
other disposition of the Property the whole Agreement between them in
relation thereto.
PART C - CONDITIONS OF SALE FOR THE PROPERTY SPECIFIED IN PART I OF PART A OF
THIS SCHEDULE ("THE NORTHERN IRELAND PROPERTY")
The Law Society of Northern Ireland General Conditions of Sale (second edition)
shall apply to the Northern Ireland Property as amended where necessary and
applicable in accordance with the Conditions of Sale of the English Property
at Part B above.
PART D - CONDITIONS OF SALE FOR THE PROPERTY SPECIFIED IN PARTS IV, V AND VI OF
PART A OF THIS SCHEDULE ("THE CONTINENTAL EUROPEAN PROPERTIES")
The conditions of sale of the English Property referred to in Part B above
shall apply insofar as the same are applicable and required to give effect to
the sale and purchase of the Continental European Properties in accordance with
the terms of this Agreement.
PART E - CONDITIONS OF SALE FOR THE PROPERTY SPECIFIED IN PART II OF PART
A OF THIS SCHEDULE ("THE REPUBLIC OF IRELAND PROPERTY")
The Vendor shall use all reasonable endeavours (but without being under any
obligation to institute any court proceedings or to make any payment as
consideration therefor) to procure (a) the licensors consent to the assignment
to Northern Ireland of the licence dated 28 September 1993 made between (1)
United Drug Plc and (2) ColourCare International (Northern Ireland) Limited
("the Limerick Licence") and thereafter to execute an assignment thereof or (b)
the grant to Northern Ireland of a fresh licence of the Republic of Ireland
property on terms no less advantageous than those contained in the Limerick
Licence.
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SCHEDULE 4
INFORMATION CONCERNING THE SUBSIDIARIES
COLOURCARE INTERNATIONAL (NORTHERN IRELAND) LIMITED
1. Registered number: N.I. 03976
2. Address of registered office: 8 Michelin Road, Mallusk,
Newtonabbey, Co.
Antrim, BT36 8UD
3. Charges:
DATE OF DATE REGISTERED TYPE CHARGE/MORTGAGE
CHARGE
28/6/94 8/7/94 Debenture London International
Group plc
28/6/94 11/7/94 Guarantee and Kodak Ltd
Debenture
19/8/94 22/8/94 Charge London International
Group plc
19/8/94 22/8/94 Guarantee Kodak Ltd
and Charge
COLOURCARE INTERNATIONAL B.V.
1. Registered number: B.V. 192.087
2. Address of registered office/
principal place of business: 3013 CH Rotterdam,
Weena 107, Holland
3. Charges: None
COLOURCARE INTERNATIONAL S.L.
1. Registered Number Barcelona Mercantile
Registry Volume 10531
Section 2 Book 9537
Sheet 120,983.
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2. Address of registered office/
principal place of business: Cornella de Llobregat
(Barcelona)
Calle Energia num. 68-70
Nave 2
Poligono del Este
3. Charges: None
COLOURCARE INTERNATIONAL S.A.
1. Registered Number B312 347 395
2. Address of registered office/
principal place of business: Saint Leonard (62360)
Zone Industrielle de la Liane
Boulogne Sur Mer
France
3. Charges: None
FREEPRINT LIMITED
1. Registered Number 1055464
2. Address of registered office/
principal place of business: Riverside House, Avon Approach,
Salisbury, Wiltshire.
3. Charges:
UK Kodak Guarantee and Debenture
UK LIG Debenture
COLOURCARE INTERNATIONAL LIMITED
1. Registered Number 156435
2. Address of registered office/
principal place of business Riverside House, Avon Approach,
Salisbury, Wiltshire.
3. Charges:
UK Kodak Guarantee and Debenture
UK LIG Debenture
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NEXUS S.N.C.
1. Registered Number: [ ]
2. Address of registered office/
principal place of business Bagneux (92120)
46 rue des Meuniers
3. Charges: [ ]
NEWBRIDGE PHOTOGRAPHIC B.V.
1. Registered Number:
2. Registered office/principal place
of business :
3. Charges
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SCHEDULE 5
WARRANTIES
1. CAPACITY AND AUTHORITY
1.1 INCORPORATION AND EXISTENCE
The Vendor is a company duly incorporate and validly existing under
English law.
1.2 POWER AND AUTHORITY
1.2.1 The Vendor has the legal right and full power and authority to
execute and deliver, and to exercise its rights and perform its
obligations under, this Agreement and all the documents which are to
be executed at Completion.
1.2.2 The Vendor and each Subsidiary has the legal right and full power and
authority to carry on the Business in each of the jurisdictions in
which they or any of them operate.
1.3 CORPORATE ACTION
All corporate action required by the Vendor and each Subsidiary
validly and duly to authorise the execution and delivery of, and to
exercise its rights and perform its obligations under, this Agreement
and all other documents which are to be executed at Completion has
been duly taken.
1.4 BINDING AGREEMENTS
This Agreement constitutes, and the documents which are to be
executed at Completion when executed will constitute, valid and
binding agreements of the Vendor and each Subsidiary enforceable in
accordance with their respective terms.
2. INFORMATION
All information set out in this Agreement, the Disclosure Letter (including any
annexures to the Disclosure Letter) and in the Information Bundles is true and
accurate in all respects and not misleading in any respect.
3. ACCOUNTS
3.1 GENERAL
3.1.1 The Accounts have been prepared in accordance with the law and on a
proper and consistent basis in accordance with generally accepted
accounting standards, principles and practices in the United Kingdom.
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3.1.2 The Accounts show a true and fair view of the assets, liabilities and
the state of affairs of each Subsidiary as at the Last Accounting
Date and of the profits and losses of each Subsidiary for the period
ended on the Last Accounting Date.
3.2 PROVISION FOR DEBTS AND LIABILITIES
Full disclosure of and adequate provisions for bad and doubtful debts
and all liabilities (whether actual, contingent or otherwise) and all
financial commitments in existence at the Last Accounting Date have
been made in the Accounts.
3.3 EXTRAORDINARY AND EXCEPTIONAL ITEMS
The results shown by the audited profit and loss accounts of each
Subsidiary for each of the three financial periods ended on the Last
Accounting Date have not (save as disclosed in those accounts) been
affected by any extraordinary, exceptional or non-recurring item or
by any other circumstance rendering the profits or losses for all or
any of the periods covered by those accounts unusually high or low.
3.4 VALUATION OF STOCK AND LONG TERM CONTRACT BALANCES
In the Accounts:
3.4.1 stocks (excluding long-term contract balances) were valued
in the same manner adopted in the two preceding accounting
periods and on the basis of the lower of cost or net
realisable value;
3.4.2 the long-term contract balances were valued in the same
manner adopted in the two preceding accounting periods and
on the basis of net cost, less foreseeable losses and
payments on account;
3.4.3 all redundant and obsolete stocks were written off and all
slow moving and damaged stocks were written down
appropriately.
3.5 DEPRECIATION
The bases and rates of depreciation and amortisation adopted in the
Accounts were the same as those adopted in the audited accounts of
each Subsidiary for the two previous accounting periods.
3.6 MANAGEMENT ACCOUNTS
The Management Accounts have been diligently prepared in accordance
with the disclosed accounting policies of and on a consistent basis
with the previous 6 monthly management
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accounts of each Subsidiary and show a fair view of the assets and
liabilities, profits and losses of each Subsidiary as at the end of
each relevant monthly period.
3.7 RECORDS
All the Records are in the possession of the Vendor or the relevant
Subsidiary or under its or their respective control, are fully and
accurately completed in accordance with all applicable legal
requirements and are up-to-date.
4. CHANGES SINCE THE LAST ACCOUNTING DATE
Since the Last Accounting Date:
4.1 the Business has been carried on in the ordinary and usual course
without interruption, in the same manner (including, without
limitation, nature and scope) as in the year ended on the Last
Accounting Date and so as to maintain the Business as a going
concern; and
4.2 there has been no material adverse change in the Assets or in the
financial or trading position or prospects of the Business.
5. TAXATION
5.1 DISPUTES
Neither the Vendor nor any Subsidiary is involved in any dispute with
any tax or other appropriate fiscal authority.
5.2 INHERITANCE TAX
5.2.1 There is no unsatisfied liability to succession or death duties
attached or attributable to any of the Assets and no such liability
could arise as a result of any event occurring on or before
Completion whether or not in combination with any event occurring
after Completion.
5.2.2 None of the Assets is, or could as a result of any event occurring on
or before Completion whether or not in combination with any event
occurring after Completion become, subject to a preferred right or
charge in favour of any tax authority.
5.2.3 No person is, or could as a result of any event occurring on or
before Completion whether or not in combination with any event
occurring after Completion become, liable to inheritance tax
attributable to the value of the Assets and in consequence no person
has, or could as a result of any event occurring on or before
Completion whether or not in combination with any event occurring
after Completion have, the power to raise the amount
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of inheritance tax by the sale or mortgage of or by a terminable
charge on any of the Assets as mentioned in section 212 Inheritance
Tax Act 1984 (powers to raise tax).
5.3 REGISTRATION OR STAMP DUTIES
All documents (other than those which have ceased to have any legal
effect) to which the Vendor or any Subsidiary is a party and which
relate to the Business have been duly stamped or as the case may be
registered with all registration duties assessed thereon having been
paid.
5.4 VALUE ADDED TAX
5.4.1 None of the Assets is a capital item the input tax on which may be
subject to adjustment in accordance with the provisions of Part VA
Value Added Tax (General) Regulations 1985 (adjustments to the
deduction of input tax on capital items) or equivalent legislation in
other jurisdictions in which the Business operates.
5.4.2 The Vendor has not made any election under paragraph 2 of Schedule 10
to the VATA (election to waive exemption) in relation to the Property
or equivalent legislation in other jurisdictions in which the
Business operates.
5.4.3 The sale of the Assets will not give rise to any claw-back of VAT or
equivalent legislation in other jurisdictions in which the Business
operates already reclaimed in respect of any of the Assets.
5.5 GENERAL
No tax liability has been the subject of disagreement with the tax
authorities nor is ColourCare International S.L. currently subject
to any tax inspection.
6. ASSETS
6.1 TITLE AND CONDITION
6.1.1 All the Assets are:
(a) legally and beneficially owned by the Vendor or the relevant
Subsidiary free from any Encumbrance;
(b) where capable of possession, in the possession or under the
control of the Vendor or the relevant Subsidiary.
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6.1.2 The Assets comprise all the assets of the Business as carried on by
the Subsidiaries immediately prior to Completion
6.1.3 All the Fixed Plant, Machinery, Motor Vehicles and Office Equipment
are in good repair condition and working order (having regard to
their age) and have been regularly maintained and are not dangerous.
6.2 STOCKS
6.2.1 The Stocks are of merchantable quality and saleable in the ordinary
and usual course of the Business in accordance with its current price
list.
6.2.2 The level of the Stocks is consistent with that required to be
maintained and used in the ordinary course of business.
6.3 INTELLECTUAL PROPERTY
6.3.1 The Principal Intellectual Property Rights are:
(a) so far as the Vendor is aware, in full force and effect;
(b) solely and beneficially owned by, and validly granted to,
the Vendor or any Subsidiary free from all licences or
Encumbrances except in relation to the "MaxiColor"
sub-licences granted by Trifca International B.V. (now
ColourCare International B.V.) to C.J. van der Heyden which
were registered on 13 October 1988 and on 22 May 1990; and
(c) not, and will not, be the subject of any claims or
opposition from any employees of the Vendor or of any
Subsidiary.
6.3.2 Short particulars of all the registered Intellectual Property Rights
(including, without limitation, applications for registration (the
"APPLICATIONS")) in respect of which the Vendor or the relevant
Subsidiary is the registered proprietor or applicant for registration
are set out in Parts A and B of Schedule 2.
6.3.3 All the trade marks (including not only word marks but logos and
devices and any trade dress or get-up) and the trade or business
names used by the Vendor or any Subsidiary in the course of the
Business (other than those set out in Parts A and B of Schedule 2)
are set out in Part C of Schedule 2.
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6.3.4 All and any goodwill associated with the Trade Marks is owned by the
Vendor or the relevant Subsidiary.
6.3.5 All of the registered Intellectual Property Rights are granted in
accordance with the procedure required by the relevant intellectual
property registries and subsisting, all renewal fees due and payable
prior to the date of this Agreement in respect of the registered
Intellectual Property Rights have been duly paid, and all other steps
required for the maintenance and protection of the registered
Intellectual Property Rights have been taken, in any jurisdiction in
which they are registered.
6.3.6 The Applications are subsisting and so far as the Vendor is aware it
has not received notice of any circumstances which would render any
of the Applications unacceptable to the relevant Registry or Office
or which would prevent the Applications, or any of them, from
proceeding to grant and registration.
6.3.7 None of the registered trade marks to be sold to Licensing by the
Vendor is associated with any trade mark or trade marks not being
sold to Licensing under this Agreement.
6.3.8 So far as the Vendor is aware nothing has been done or omitted to be
done whereby any of the Intellectual Property Rights have ceased or
might cease to be valid and enforceable or whereby any person is or
will be able to seek cancellation, rectification or any other
modification of any registration of any of the Intellectual Property
Rights.
6.3.9 So far as the Vendor is aware there are and have been no proceedings,
actions or claims, and no proceedings, actions or claims are pending
or threatened or will arise, impugning the title, validity or
enforceability of any of the Intellectual Property Rights or claiming
any right or interest in any of the Intellectual Property Rights.
6.3.10 Neither the Vendor nor any Subsidiary has granted and neither is
obliged to grant any licence, sub-licence, assignment, consent,
undertaking or any other rights in respect of any of the Intellectual
Property Rights.
6.3.11 So far as the Vendor is aware there is no infringement of any of the
Intellectual Property Rights.
6.3.12 The activities, processes, methods, Intellectual Property, products
or services now or at any time employed, manufactured, used, dealt
in, or supplied, by the Vendor or any Subsidiary in the Business;
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(a) are not now nor were they at the time employed,
manufactured, used, dealt in or supplied, subject to the
licence, consent or permission of, or payment to, any third
party;
(b) do not now nor did they at the time employed, manufactured,
used, dealt in or supplied, infringe any Intellectual
Property (including, without limitation, moral rights) of
any third party; and
(c) will not give rise to any claim.
6.3.13 No party to any agreement relating to the use by the Vendor or any
Subsidiary of any Intellectual Property owned by a third party is, or
has at any time been, in breach of such agreements and no event has
occurred which would entitle any third party to terminate such
agreements prematurely.
6.3.14 Neither the Vendor nor any Subsidiary has disclosed, and is not
obliged to disclose, any Know-How or Confidential Information to any
person other than its employees who are bound by obligations of
confidence or except in the ordinary and usual course of the Business
and then only on condition that the disclosure is to be treated as
being of a confidential nature.
6.3.15 Neither the Vendor nor any Subsidiary is a party to any
confidentiality or other agreement which restricts the free use of
any of the Intellectual Property Rights or the use or disclosure of
any information relating to the Business.
6.3.16 Neither the Vendor nor any Subsidiary uses, or otherwise carries on
the Business under, any name other than its respective corporate
name.
6.3.17 Without prejudice to the provisions of Warranty 6.3.1, the
Intellectual Property Rights other than the Principal Intellectual
Property Rights are solely and beneficially owned by the Vendor or
any Subsidiary free from any licences or Encumbrances.
6.4 BOOK DEBTS
6.4.1 No Trade Debt is the subject of any arrangement made otherwise than
in the ordinary and usual course of the Business details of which
have been supplied to the Purchasers.
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6.4.2 No Trade Debt has been released by the Vendor or any Subsidiary on
terms that the debtor has paid or will pay less than the book value
for the debt or has been deferred, subordinated or written off or has
proved to any extent to be irrecoverable.
6.5 EFFECT OF SALE
To the best of the knowledge, information and belief of the directors
of the Vendor (no enquiry having been made) the execution or
performance of this Agreement and all other documents which are to be
executed at Completion will not:
6.5.1 result in the Purchasers losing the benefit of any asset,
licence, right or privilege which the Business presently
enjoys or relieve any person from any obligation to the
Vendor or any Subsidiary; or
6.5.2 conflict with, or result in a breach of, any agreement or
arrangement to which the Vendor or any Subsidiary is a
party.
6.6 ASSET REGISTER
The Asset Register comprises a complete and accurate record of all
the Fixed Plant and Machinery.
7. PROPERTY
7.1 PROPERTY COMPRISES ALL LAND
The Property comprises the whole of the land and premises owned,
occupied or used by the Vendor or any Subsidiary in connection with
the Business (other than the first floor offices at 33 High Street,
Deal).
7.2 TITLE
The Vendor or, where appropriate, the relevant Subsidiary has a good
and marketable title to the Property (save in respect of Old Clare
Street, Limerick where the relevant Subsidiary has a good personal
right to occupy).
7.3 APPURTENANT RIGHTS
7.3.1 There is appurtenant to the Property all rights and easements which
are necessary for the proper and existing use of the Property and
which are without restriction as to hours of use or otherwise.
7.3.2 Any right or easement appurtenant to any Property which is:
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(a) freehold, is held by the Vendor or the relevant Subsidiary
as the sole beneficial owner; or
(b) held by the Vendor or the relevant Subsidiary under a lease
or licence, is held for a term not less than the unexpired
term of the lease or licence.
7.3.3 No right or easement appurtenant to the Property is terminable by any
third party.
7.3.4 There are available to the Property such services (including, without
limitation, electricity and water supplies, sewerage, and
telecommunications lines) as are necessary for the existing use of
the Property.
7.3.5 The Property does not adjoin any other land belonging to, or in the
possession or occupation of, the Vendor or any Subsidiary.
7.4 ADVERSE INTERESTS
Save as mentioned in Part A of Schedule 3, the Vendor or the relevant
Subsidiary, as the case may be, is entitled to and has exclusive
vacant possession of the Property.
7.5 PERFORMANCE OF OBLIGATIONS AFFECTING PROPERTY
The Vendor or the relevant Subsidiary, as the case may be, has not
been notified of any breach of any obligation, condition,
restriction, agreement or statutory requirement affecting the
Property, its occupation of the Property or the existing use of the
Property.
7.6 OUTGOINGS
The Property is not subject to any outgoing other than any normal
rates, taxes, duties, assessments, charges, impositions, levies and
outgoings or rents or other sums payable under any lease or licence
under with it is held by the Vendor or the relevant Subsidiary, as
the case may be.
7.7 DISPUTES AND NOTICES
The Vendor is not aware of any outstanding dispute or notice
affecting the Property, and none is anticipated.
7.8 LEASEHOLD OR LICENSED PROPERTY
In the case of any Property which is held by the Vendor or the
relevant Subsidiary under a lease or licence:
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7.8.1 there is no right for the landlord, licensor or other person
to bring the term to an end before the expiration of the
lease or licence by effluxion of time (otherwise than by
forfeiture);
7.8.2 there is no circumstance known to the Vendor which could
restrict or terminate the continued and uninterrupted
possession or occupation of the Property by the Vendor or
the relevant Subsidiary;
7.8.3 save as mentioned in Part A of Schedule 3, any rent or fee
payable in respect of the Property is not in the course of
being reviewed; and
7.8.4 the landlord or licensor has not elected to waive any
exemption from payment by the Vendor or the relevant
Subsidiary of value added tax in respect of any payment made
under the lease or licence.
7.9 TITLE DOCUMENTS
There are no deeds or title documents relating to the Property which
are in the possession or control of the Vendor or the Vendor's
Solicitors or any Subsidiary or its or their other professional
advisers other than those listed in the Agreed Schedules.]
8. ENVIRONMENTAL MATTERS
8.1 DEFINITIONS
For the purposes of the Warranties in paragraphs 8.2 to 8.4:
"ENVIRONMENT" means any land, including, without limitation, surface
land and subsurface strata, sea bed or river bed under any water as
defined below and any natural or man-made structures; water,
including, without limitation, coastal and inland waters, surface
waters and ground waters and water in drains and sewers; and air,
including, without limitation, air within buildings and other natural
or man-made structures above or below ground;
"ENVIRONMENTAL LAWS" means all or any applicable law (whether civil,
criminal or administrative), common law, statute, statutory
instrument, treaty, regulation, directive, decision, by-law,
circular, code, order, notice, demand, decree, injunction, resolution
or judgment of any government, quasi-government, supranational,
federal, state or local government, statutory or regulatory body,
court, agency or association, or any other person or body in any
jurisdiction with regard to the pollution or protection of the
Environment or harm to or the protection of human health or the
health of animals or plants including, without limitation, laws
relating to public and workers' health and safety, emissions,
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discharges or releases of chemicals, genetically modified organisms,
noise or any other pollutants or contaminants, or industrial,
radioactive, dangerous, toxic or hazardous substances, or wastes
(whether in solid, semi-solid or liquid form or in the form of a gas
or vapour) into the Environment or otherwise relating to the
manufacture, processing, use, treatment, storage, distribution,
disposal, transport or handling of such substances or wastes;
"ENVIRONMENTAL PERMITS" means all or any permits, licences, consents,
approvals, certificates, qualifications, specifications,
registrations and other authorisations, and the filing of all
notifications, reports and assessments required under any
Environmental Laws for the operation of the Business or the
occupation or use of any premises in relation to the Business.
8.2 COMPLIANCE WITH ENVIRONMENTAL PERMITS
All Environmental Permits necessary in relation to the Business have
been obtained and the terms and conditions of all Environmental
Permits and Environmental Laws have been complied with.
8.3 STATUS OF ENVIRONMENTAL PERMITS
8.3.1 All Environmental Permits are in full force and effect.
8.3.2 There are no facts or circumstances known to the Vendor indicating
that any Environmental Permits would or might be revoked, suspended,
cancelled, varied or not renewed.
8.3.3 All appropriate or necessary action in connection with the renewal or
extension of any Environmental Permits has been taken.
8.3.4 The execution or performance of this Agreement and all other
documents which are to be executed at Completion will not result in
any Environmental Permits being revoked, suspended, cancelled, varied
or not renewed.
8.3.5 None of the Environmental Permits nor any of the conditions to which
any Environmental Permits are subject is personal to the Vendor or
any Subsidiary.
8.4 ENVIRONMENTAL PROCEEDINGS
There is no civil, criminal or administrative action, claim,
complaint, investigation or other proceedings or suit being taken or
made, or (to the knowledge of the Vendor) pending or threatened in
connection with Business or any of the Assets or any liability
(whether actual
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or contingent) to make good, repair, re-instate or clean up any land
or other asset now or previously owned, occupied or used by the
Vendor, any Subsidiary, or any other person, in connection with the
Business, nor any act, omission, event or circumstance giving rise or
likely to give rise in the future to any such action, claim,
investigation, proceedings or suit or any such liability or any other
liabilities under any Environmental Laws.
9. CONTRACTS
9.1 In respect of the Major Contracts only:-
9.1.1 There are no terms or conditions or variations from the
written provisions as disclosed to the Purchasers which are
material to the performance of the contract or which render
the written terms misleading.
9.1.2 There are no disputes or claims nor to the knowledge of the
Vendor (no enquiry having been made) are there any
circumstances likely to give rise to any such dispute or
claim.
9.1.3 No party has given notice of any actual or intended
amendment or termination (including as to prices) or has
otherwise sought to repudiate or disclaim the contract.
9.1.4 Neither the Vendor nor any Subsidiary has knowledge of the
invalidly or enforceability or grounds for recision of any
such contract.
9.2 In respect of those Contracts other than the Material Contracts:
(i) such Contracts have been entered into in the ordinary and
usual course of business; and
(ii) such Contracts contain no terms which are material in
relation to the Business.
10. TERMS OF TRADE AND BUSINESS
10.1 CREDITORS
The Vendor and the Subsidiaries have paid their respective creditors
within the times agreed with the creditors and there are no debts
owing by them other than those Trade Credits listed in Schedule 7.
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10.2 SUPPLIERS AND CUSTOMERS
10.2.1 During the 12 months ending on the date of this Agreement no
substantial customer or supplier of the Business has:
(a) ceased, or indicated an intention to cease, trading with or
supplying the Business;
(b) reduced, or indicated an intention to reduce, substantially
its trading with or supplies to the Business; or
(c) changed, or indicated an intention to change, substantially
the terms on which it is prepared to trade with or supply
the Business (other than normal price and quota changes).
10.2.2 To the best of the knowledge, information and belief of the directors
of the Vendor (no enquiry having been made) no substantial customer
or supplier of the Business is likely to:
(a) cease trading with or supplying the Business;
(b) reduce substantially its trading with or supplies to the
Business; or
(c) change the terms on which it is prepared to trade with or
supply the Business (other than normal price and quota
changes).
10.2.3 To the best of the knowledge, information and belief of the directors
of the Vendor (no enquiry having been made) the attitude of
customers, suppliers and employees with regard to the Business will
not be prejudicially affected by the execution or performance of this
Agreement and all other documents which are to be executed at
Completion.
10.2.4 Neither during the financial period of the Vendor and the
Subsidiaries ended on the Last Accounting Date nor during the period
commencing on the Last Accounting Date and ending on the date of this
Agreement has any person (either individually or jointly with any
other person) purchased from or sold to the Business more than ten
per cent. of the aggregate amount of all purchases or sales made by
the Business during these periods.
10.3 LICENCES, AUTHORISATIONS AND CONSENTS
10.3.1 The Vendor and each Subsidiary has obtained all licences,
authorisations and consents required for the proper carrying on of
the Business and all licences, authorisations and
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consents (short particulars of which are set out in the Disclosure
Letter) are valid and subsisting and are freely transferable to the
Purchasers.
10.3.2 Neither the Vendor nor any Subsidiary is in breach of any licences,
authorisations or consents and there are no circumstances which
indicate that any of them may be revoked or not renewed, in whole or
in part.
10.4 COMPUTER RECORDS
10.4.1 None of the records, systems, data or information of the Business are
recorded, stored, maintained, operated or otherwise wholly or partly
dependent on or held or accessible by any means (including, without
limitation, any electronic, mechanical or photographic process
whether computerised or not) which are not included amongst the
Assets.
10.4.2 The records, systems, data or information of the Business which are
recorded and stored on or held by electronic, mechanical or
photographic process are backed up on a daily basis.
10.5 DATA PROTECTION
10.5.1 The Vendor and each Subsidiary has obtained and maintained in full
force and effect all registrations under the Data Protection Act 1984
and similar legislation in other jurisdictions in which the Business
operates necessary or appropriate in relation to the Business
including, without limitation, the registrations covering the
obtaining, holding, processing, transfer and disclosure of all
personal data effected by the Vendor and the Subsidiaries (including
the transfer and disclosure to the Purchasers).
10.5.2 The Vendor and the Subsidiaries have in respect of personal data
relating to the Business at all times complied with the Data
Protection Principles contained in Schedule 1 to the Data Protection
Act 1984 or similar principles in respect of other similar
legislation in other jurisdictions in which the Business operates.
11. EMPLOYEES
11.1 GENERAL
11.1.1 Save as disclosed in the Disclosure Letter, there is not in existence
any contract of employment with any of the Employees which cannot be
terminated by three months' notice or less without giving rise to any
claim for damages or compensation (other than a statutory redundancy
payment or statutory compensation for unfair dismissal) other than in
relation to the provisions of Belgian employment law on labour
contracts dated 3 July 1978 in relation to the Belgian Employees and
Dutch employment laws in relation to the Dutch
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Employees and neither the Vendor nor any Subsidiary has given to or
received notice of resignation from any Transferring Employee earning
pounds sterling 30,000 p.a. or more (or its equivalent in any
jurisdiction).
11.1.2 Full particulars are contained in the Disclosure Letter of:
(a) the total number of Employees including those who are on
maternity leave or absent on the grounds of disability or
other long term leave of absence, and who have or may have a
statutory or contractual right to return to work in the
Business;
(b) the name, date of commencement of employment, period of
continuous employment, salary and other benefits, grade, and
age, of each of the Employees and where any of the Employees
has been continuously absent from work for a period in
excess of one month, the reason for the absence;
(c) the terms of each service agreement of each of the Employees
entitled to salary at a rate in excess of pounds sterling
30,000 a year (or its equivalent in any jurisdiction); and
(d) the terms of all consultancy agreements and/or contracts for
services relating to the Business.
11.1.3 The basis of the remuneration payable to the Employees is the same as
that in force at the Last Accounting Date and neither the Vendor nor
any Subsidiary is obliged to increase nor has it made any provision
to increase the aggregate annual remuneration payable to any of the
Employees by more than five per cent. or to increase the rates of
remuneration of any of the Employees entitled to remuneration in
excess of pounds sterling 30,000 a year or its equivalent in any
jurisdiction.
11.1.4 There are no amounts owing to any of the Employees or any former
employees of the Business other than remuneration accrued due or for
reimbursement of business expenses.
11.1.5 Other than the Disclosed Schemes referred to in Clause 14 of this
Schedule there is no agreement or arrangement between the Vendor or
any of its Subsidiaries and any of the Employees or former employees
of the Business with respect to his employment, his ceasing to be
employed or his retirement which is not included in the written terms
of his employment or previous employment (as the case may be)
referred to in the Disclosure Letter.
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11.1.6 The Vendor has maintained current, adequate and suitable records
regarding the service of each of the Employees and any former
employees of the Business whose employment has terminated in the last
12 months (including, without limitation, details of terms of
employment, payments of statutory sick pay, statutory maternity pay,
disciplinary and health and safety matters, income tax and social
security contributions) and termination of employment.
11.1.7 During the last two years ColourCare International B.V. has not been
involved in any dispute with any of the Dutch Employees or the
Belgian Employees and there are no circumstances which may result in
any such dispute resulting from the transactions contemplated by this
Agreement or otherwise. No person previously employed in connection
with the Business now has or may in the future have a right to
contest, a dismissal or notice of termination given to such person
prior to the date of Completion or file a claim in relation thereto.
11.1.8 Save as disclosed in the Disclosure Letter, there are no pension,
stock option, share saving or profit sharing schemes, whether legally
enforceable or not, relating to all or part of the Employees in
operation or proposed.
11.1.9 There are no persons employed or engaged in the Business other than
the Employees.
11.1.10 Neither the Vendor nor any of its Subsidiaries is now, or has been in
the last 12 months, engaged or involved in any dispute or legal
proceedings with any of the Employees or any former employees of the
Business whose employment terminated in the last 12 months.
11.1.11 All payments in respect of Social Security and other contributions in
respect of that part of the Business carried on by Nexus S.N.C. have
been fully and timely paid and no payments are outstanding in respect
of any social charges for any of the Employees engaged in such
Business.
11.2 PAYMENTS ON TERMINATION
Except as disclosed in the Accounts or in the Disclosure Letter:
11.2.1 no liability has been incurred by the Vendor or any of its
Subsidiaries for breach or termination of any contracts of
employment with any of the Employees or any former employees
of the Business whose employment has terminated in the last
12 months including, without limitation, redundancy
payments, protective awards, compensation for wrongful
dismissal or unfair dismissal or failure to comply with any
order for the reinstatement or re-engagement of any of the
Employees; and
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11.2.2 neither the Vendor nor any Subsidiary has made or agreed to
make any payment or provided or agreed to provide any
benefit to any of the Employees or former employees of the
Business or any dependent of any of the Employees or former
employees in connection with the actual or proposed
termination or suspension of employment or variation of any
contract of employment of any of the Employees or former
employees.
11.3 COMPLIANCE WITH RELEVANT LEGISLATION
11.3.1 The Vendor and each Subsidiary has complied with:
11.3.1.1 all obligations imposed on it by, and all orders and
awards made under, all statutes, regulations, codes
of conduct and practice, collective agreements,
customs and practices relevant to the relations
between it and the Employees or any Union or the
terms of employment of the Employees including all
obligations imposed on it under the Works Council
Act (Wet op de Ondernemingsraden) and the Employment
Conditions Act (Arbeidsomstandighedenwet) of 1
January 1994 and relevant decrees and instructions
relating hereto; and
11.3.1.2 all recommendations made by the Advisory
Conciliation and Arbitration Service and with all
awards and declarations made by the Central
Arbitration Committee (or equivalent body in any
jurisdiction in which the Business operates).
11.3.2 Neither the Vendor nor any Subsidiary has, in carrying out the
Business, infringed or breached and is not likely to infringe or
breach the pay freeze legislation introduced by the Belgian
government by royal decree of 24 December 1993 and in force at the
date of this Agreement in Belgium.
11.4 REDUNDANCIES AND TRANSFER OF BUSINESS
Within the period of one year ending on the date of this Agreement
neither the Vendor nor any Subsidiary has:
11.4.1 given notice of any redundancies to the relevant
Secretary of State or started consultations with any
trade union under Part IV of the Trade Union and
Labour Relations (Consolidation) Act 1992 or, in
relation to ColourCare International (Northern
Ireland) Limited only under Part IV of the
Industrial Relations (Northern Ireland) Order 1976
nor has such person failed to comply with any of its
obligations
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under Part IV of that Act or, in relation to ColourCare
International (Northern Ireland) Limited only under Part IV
of the Order or in relation to that part of the Business
carried on by Nexus S.N.C. started consultations with any
Union with a view to collective redundancies; and
11.4.2 been a party to any relevant transfer as defined in the
Transfer of Undertakings (Protection of Employment)
Regulations 1981 nor has such person failed to comply with
any duty to inform and consult any trade union under those
Regulations.
11.5 TRADE UNIONS
11.5.1 Neither the Vendor nor any Subsidiary has an agreement or arrangement
with any trade union or other body representing any of the Employees
and neither the Vendor nor any Subsidiary recognises (or has
recognised in the last 12 months) any trade union or other body
representing any of the Employees for any negotiating or consultation
purposes and in so far as that part of the Business carried on by
Nexus S.N.C. is concerned, neither the Vendor nor any Subsidiary has
a trade union section or trade union delegate.
11.5.2 Neither the Vendor nor any Subsidiary is involved in, and there are
no circumstances likely to give rise to, any industrial or trade
dispute or any dispute or negotiation regarding a claim of material
importance with any trade union or other body representing any of the
Employees.
11.6 INCENTIVE SCHEMES
Neither the Vendor nor any Subsidiary has in existence nor is it
proposing to introduce any share incentive, share option, phantom
share option, commission, profit sharing, bonus or other incentive,
scheme for any of the Employees.
11.7 TRAINING
There is no training scheme, arrangement or proposal in existence at
the date of this Agreement in relation to the Business nor has there
been any training scheme, arrangement or proposal in the past in
respect of which a levy may in the future become payable by the
Vendor nor any Subsidiary under the Industrial Training Act 1982 or,
in relation to ColourCare International (Northern Ireland) Limited
only under the Industrial Training (Northern Ireland) Order 1984, as
amended, or similar legislation in other jurisdictions in which the
Business operates.
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11.8 ColourCare International (Northern Ireland) Limited has complied with
the Fair Employment (Northern Ireland) Act 1976 as amended and the
Fair Employment (Northern Ireland) Act 1989 (as amended) and the Code
of Practice and all Regulations and Orders made thereunder including,
registration with the Fair Employment Commission, compliance with the
annual monitoring and the Code of Practice and all the requirements
relating to selection and employment matters, and no reports or
investigations have been carried out by the Fair Employment
Commission and no complaints have been lodged with the Fair
Employment Commission now or at any time heretofore.
11.9 All the employees of ColourCare International S.L. including the
managers, are duly registered on the appropriate payrolls. No third
party, counsel, agent or other person acting for or on behalf of
ColourCare International S.L. may claim recognition as an employee of
ColourCare International S.L. None of the employees may claim any
right other than those resulting from or provided for in the
accounting records of ColourCare International S.L., or may claim
higher employment levels or categories other than those attributed to
them and duly recorded on the payroll and in the accounting books of
ColourCare International S.L. or their written terms of employment.
11.10 ColourCare International S.L. has fully and timely paid all Social
Security contributions due to governmental agencies pursuant to any
applicable law and/or statutory regulation, and has received no
notice of assessment or proposed assessment of any additional
provision or Social Security contributions.
11.11 ColourCare International S.L. has duly applied all withholdings and
other retention provided for by applicable laws or regulations in
respect of employees' salaries and has fully and punctually paid the
proceeds of any such withholdings or retention to the competent
governmental agencies.
11.12 ColourCare International S.L. has correctly reserved in its accounts
all the funds corresponding to the accrued employment termination
indemnities due to the employees, including managers, and has duly
calculated and fully and timely paid the accrued employment
termination indemnities to the employees whose employment has been
terminated during the last five years.
11.13 So far as the Vendor is aware, no labour actions or claims on the
part of the employees or trade unions are pending or threatened
against ColourCare International S.L. nor does any employee whose
employment was terminated during the last five years have any valid
claim
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or title against ColourCare International S.L. in respect of
compensation, indemnities, severance, holidays and other rights
accrued pursuant to the employment contracts.
12. INSOLVENCY
12.1 No order has been made or petition presented or resolution passed for
the winding up of the Vendor or any Subsidiary or for the appointment
of a provisional liquidator to the Vendor or to any Subsidiary or for
an administration order in respect of the Vendor or any Subsidiary.
12.2 No receiver or receiver and manager has been appointed by any person
of the whole or any part of the business or assets of the Vendor or
any Subsidiary.
12.3 Neither the Vendor nor any Subsidiary has proposed, agreed or
sanctioned any arrangements with its creditors whether on a voluntary
or a court administered basis.
12.4 Neither the Vendor nor any Subsidiary is insolvent or unable to pay
its debts within the meaning of section 123 of the Insolvency Act
1986 or, in respect of ColourCare International (Northern Ireland)
Limited only under Article 103 of the Insolvency (Northern Ireland)
Order 1989, if appropriate.
12.5 No application has been made or granted for the bankruptcy
(faillissement) of ColourCare International B.V. or for a moratorium
of creditors (surseance van betaling) with respect to ColourCare
International B.V. and, so far as the Vendor is aware, no such
application has been threatened.
12.6 Neither the Vendor nor any Subsidiary has stopped paying its debts as
they fall due.
12.7 No distress, execution or other process has been levied on any of the
Assets.
12.8 There is no unfulfilled or unsatisfied judgment or Court order
outstanding against the Vendor nor any Subsidiary.
13. COMPETITION
13.1 UNDERTAKINGS AND ORDERS
Neither the Vendor nor any member of the Vendor's Group has given any
undertaking or written assurance (whether legally binding or not) to
any governmental authority or any authority of the European
Communities under the Fair Trading Act 1973, the Competition Act
1980, the Restrictive Trade Practices Acts 1976 and 1977, the Resale
Prices Act 1976,
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the Treaty of Rome or any other statute or legal instrument of the
United Kingdom or any other country in relation to the Business or
matters which may affect the Business, nor is the Vendor nor any
member of the Vendor's Group affected by any order or regulation made
under the Fair Trading Act 1973 or the Competition Act 1980 or by any
decision made by the Commission of the European Communities in
connection with the Business or matters which may affect the
Business.
13.2 INVESTIGATIONS
None of the Vendor, any member of the Vendor's Group or the Business
(either alone or in connection with other businesses competing with
the Business) has received any communication or request for
information from or by the Director General of Fair Trading, the
Monopolies and Mergers Commission, the Secretary of State for Trade
and Industry or the Commission of the European Communities, or any
competition or governmental authority of any other country, relating
to any aspect of the Business, nor has any agreement, arrangement or
conduct (whether by omission or otherwise) of the Vendor or a member
of the Vendor's Group in relation to the Business, been the subject
of an investigation, report or decision by any of the previously
named people or bodies.
13.3 MARKET POSITION
The Business does not have a share of the mail order photoprocessing
market in Belgium in excess of 20%, a dominant position in the
European Union, or any substantial part of any market in the European
Union, for the purposes of Article 86 of the Treaty of Rome.
14. PENSIONS AND OTHER BENEFITS
14.1 DEFINITIONS
For the purposes of the Warranties in paragraphs 14.2 to 14.8:
"APPROVED" means approved by the UK Board of Inland Revenue for the
purposes of Chapter I of Part XIV of the Taxes Act and references to
"APPROVAL" shall be construed accordingly;
"DEFINED CONTRIBUTION SCHEME" means a scheme under which the amount
of the benefits or the amount of the benefits other than some or all
of the benefits payable on death before becoming a pensioner, payable
to or in respect of a member of the scheme is calculated by reference
to the contributions made to the scheme by and in respect of the
member;
"DISCLOSED SCHEME" means the Dutch Scheme, the Eire Scheme, the UK
Scheme and any other agreement, arrangement, custom or practice in
operation for the payment of or
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contribution towards any pensions, allowances, lump sums or other
like benefits on retirement, death, termination of employment
(whether voluntary or not) or during periods of sickness or
disablement, for the benefit of any Relevant Employee or for the
benefit of the dependants of any Relevant Employee which has been
disclosed in the Disclosure Letter;
"DUTCH SCHEME" means the AMEV Levensverzekering N.V. Scheme;
"EIRE SCHEME" means the London International Group Eire Pension
Scheme;
"RELEVANT EMPLOYEE" means any of the Employees or former employees of
the Business; and
"UK SCHEME" means the ColourCare International Pension and Life
Assurance Scheme.
14.2 SCHEMES - GENERAL
Other than the Disclosed Schemes there is not in operation, and no
proposal has been announced to enter into or establish, any
agreement, arrangement, custom or practice (whether legally
enforceable or not or whether or not Approved) for the payment of, or
payment of any contribution towards, any pensions, allowances, lump
sums or other like benefits on retirement, death, termination of
employment (whether voluntary or not) or during periods of sickness
or disablement, for the benefit of any Relevant Employee or for the
benefit of the dependants of any Relevant Employee.
14.3 SCHEMES - DISCLOSED
14.3.1 Full details of each Disclosed Scheme have been given to the
Purchasers in the form of:
(a) copies of all agreements, deeds and rules governing or
relating to the Disclosed Scheme including, without
limitation, agreements between the Vendor or any Subsidiary
and any Relevant Employee relating to the provision of any
of the benefits referred to in paragraph 14.2;
(b) copies of the explanatory literature issued to Relevant
Employees who are or may become members of the Disclosed
Scheme;
(c) copies of any announcement issued to any Relevant Employees
who are members of the Disclosed Scheme in respect of
benefit improvements or other amendments not yet
incorporated into the documentation of the Disclosed Scheme;
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<PAGE> 91
(d) copies of all policies effected with and agreements with any
insurance company for the purposes of the Disclosed Scheme;
and
(e) a list of the Relevant Employees who are members of the
Disclosed Scheme with all particulars of them relevant to
their membership of the Disclosed Scheme and necessary to
establish their entitlements to benefits.
14.3.2 No discretion or power has been exercised under any Disclosed Scheme
in respect of any Relevant Employee to:
(a) augment benefits;
(b) admit to membership any Relevant Employee who would not
otherwise have been eligible for admission to membership;
(c) provide a benefit which would not otherwise be provided; or
(d) pay a contribution which would not otherwise have been paid.
14.3.3 All benefits (other than refunds of contributions) payable under each
Disclosed Scheme on the death of a member of the Disclosed Scheme or
during periods of sickness or disability of the member are at the
date of this Agreement fully insured under a policy effected with an
insurance company of good repute and each member has been covered for
such insurance by such insurance company at its normal rates and on
its normal terms for persons in good health and all insurance
premiums payable have been paid.
14.3.4 No plan, proposal or intention to amend, discontinue in whole or in
part or exercise any discretion in relation to any Disclosed Scheme
has been communicated to any Relevant Employee who is a member of the
Disclosed Scheme.
14.3.5 The trustees of the Eire Scheme have legal title to all the assets of
the relevant Scheme and there are no Encumbrances over any of the
assets of the Scheme.
14.3.6 There has been no breach of the trusts of any Disclosed Scheme and
there are no actions, suits or claims (other than routine claims for
benefits) outstanding, pending or threatened against the trustees or
administrator of any Disclosed Scheme or against the Vendor or any
other employer participating in the Disclosed Scheme in respect of
any act, event, omission or other matter arising out of or in
connection with the Disclosed Scheme and after making
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due and careful enquiries the Vendor is not aware of any
circumstances which may give rise to any such claim.
14.4 FUNDING OF DISCLOSED SCHEME - CONTRIBUTIONS
There is not at the date of this Agreement any contribution to any
Disclosed Scheme which has fallen due but is unpaid.
14.5 FUNDING OF DISCLOSED SCHEME - DEFINED CONTRIBUTION SCHEME
14.5.1 The UK Scheme and the Eire Scheme are Defined Contribution Schemes
and there is set out in or annexed to the Disclosure Letter a
statement of the basis on which the Vendor has undertaken to
contribute to each of these Schemes.
14.5.2 No assurance, promise or guarantee (whether oral or written) has been
made or given to any Relevant Employee who is a member of the UK
Scheme or the Eire Scheme of any particular level or amount of
benefits (other than insured lump sum death in service benefits
referred to in paragraph 14.3.3) to be provided for or in respect of
him under the Scheme on retirement, death or leaving service and the
Vendor may terminate any obligation it may have to contribute to the
UK Scheme or the Eire Scheme without incurring any liability to any
Relevant Employee who is a member of such Scheme under any agreement
or arrangement with the member.
14.6 DISCLOSED SCHEMES - COMPLIANCE
14.6.1 The UK Scheme has been designed so as to be capable of receiving
Approval and the Vendor is not aware of any circumstances which might
give the Board of Inland Revenue reason to withhold the grant of
Approval so as to have effect from the date of commencement of the UK
Scheme.
14.6.2 The UK Scheme is a contracted-out scheme for the purposes of the
Pension Schemes Act 1993 and has been administered in accordance with
the contracting-out requirements of that Act.
14.6.3 Each Disclosed Scheme has been designed to comply with, and has been
administered in accordance with, all applicable local laws including,
without limitation, all relevant local statutes and subordinate
legislation and all relevant provisions of the law of the European
Communities, and subject to all applicable laws in accordance with
the trusts, powers and provisions of the Disclosed Scheme.
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14.7 THE DUTCH SCHEME
14.7.1 As regards the Dutch Scheme, all backservice obligations in relation
to the Dutch Scheme as at the date of Completion have either been
fully paid or will be fully paid at the date of Completion. The
Dutch Scheme is in accordance with the Dutch Pension Act (Pensioen en
Spaarfondsenwet). The funding of the Dutch Scheme is sufficient,
using the actuarial assumptions employed by the insurer to secure all
benefits currently, prospectively and contingently payable to the
Dutch Employees on the basis of agreements made with them on or
before the date of Completion.
15. LITIGATION AND COMPLIANCE WITH LAW
15.1 LITIGATION
15.1.1 Neither the Vendor nor any Subsidiary nor any person for whose acts
or defaults they may respectively be vicariously liable is involved,
or has during the two years ending on the date of this Agreement been
involved, in any civil, criminal, arbitration or other proceedings in
relation to the Business or any of the Assets and no civil, criminal,
arbitration or other proceedings are pending, or threatened, by or
against the Vendor or any Subsidiary or any person for whose acts or
defaults they may respectively be vicariously liable in relation to
the Business or any of the Assets.
15.1.2 To the best of the knowledge, information and belief of the Vendor
(enquiries having been made of the senior managers of the Business)
no fact or circumstance exists which is likely to give rise to any
civil, criminal, arbitration or other proceedings in relation to the
Business or any of the Assets involving the Vendor or any Subsidiary
or any person for whose acts or defaults such person may be
vicariously liable.
15.1.3 There is no outstanding judgment, order, decree, arbitral award or
decision of any court, tribunal, arbitrator or governmental agency
relating to the Business or any of the Assets against the Vendor or
any Subsidiary or any person for whose acts or defaults they may
respectively be vicariously liable.
15.2 COMPLIANCE WITH LAW
To the best of the knowledge, information and belief of the Vendor,
the Vendor and the Subsidiaries have conducted the Business in all
material respects in accordance with all applicable legal and other
requirements in any part of the world.
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15.3 INVESTIGATIONS
There have been and are no governmental or other investigations or
enquiries or disciplinary proceedings concerning the Business; none
are pending or threatened; and to the best of the knowledge,
information and belief of the Vendor no fact or circumstance exists
which is likely to give rise to any such investigation, enquiry or
proceedings.
16. INSIDER AGREEMENTS
There is not, and there has not been at any time during the three
years ending on the date of this Agreement, any agreement or
arrangement (whether legally enforceable or not) affecting the
Business (including the Contracts) to which the Vendor or any
Subsidiary is or was a party and which any of the directors or former
directors of the Vendor or any Subsidiary or any person connected
with any of them as described in section 839 Taxes Act (save that in
construing section 839, the term "CONTROL" shall have the meaning
given by section 840 or section 416 of the Taxes Act so that there
shall be control whenever either of sections 840 or 416 would
require) is interested in any way whatsoever.
17. FRENCH SHARES
17.1 There is no Encumbrance, and there is no agreement, arrangement or
obligation to create or give an Encumbrance, in relation to any of
the French Shares.
17.2 The accounting records of Nexus S.N.C. are up-to-date, in its
possession or under its control and fully and accurately completed in
accordance with the law and applicable standards, principles and
practices generally accepted in France and all the business documents
are held in originals at the registered office of the Company.
17.3 Since the Completion of the Hivedown Agreement:
17.3.1 the business of Nexus S.N.C. has been conducted in the usual
way so as to maintain that business as a going concern;
17.3.2 there has been no adverse change in the financial or trading
position or prospects of Nexus S.N.C.; and
17.3.3 no material change has occurred in the assets and
liabilities contributed for in the Hivedown Agreement.
17.4 Since the Completion of the Hivedown Agreement:
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17.4.1 Nexus S.N.C. has not disposed of an asset (including,
without limitation, trading stock) or supplied a service or
business facility of any kind (including, without
limitation, a loan of money or the letting, hiring or
licensing or tangible or intangible property) in
circumstances where the consideration actually received or
receivable for the disposal or the supply, as the case may
be, was less than the consideration which would be deemed to
have been received for the purposes of tax, or charged in
any manner whatsoever all or part of its business or assets.
17.4.2 Nexus S.N.C. has not, other than in the usual course of its
business:
(a) acquired or disposed of, or agreed to acquire or
dispose of, an asset; or
(b) assumed or incurred, or agreed to assume or incur, a
liability, obligation or expense (actual or
contingent) or hired or promised to hire or dismiss
any employee;
17.4.3 no resolution of the shareholders of Nexus S.N.C. has been
passed.
17.5 Each asset contributed for in the Hivedown Agreement (other than
stock disposed of in the usual course of business) and each asset
used by Nexus S.N.C. or which is in the reputed ownership of Nexus
S.N.C. is:
(a) legally and beneficially owned by Nexus S.N.C. free from any
Encumbrance;
(b) where capable of possession, in the possession or under the
control of Nexus S.N.C.; and
(c) situated in France.
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SCHEDULE 6
APPORTIONMENTS
Nashua Corporation
Purchase Price Allocation
Nexus Acquisition
Sterling (000's)
<TABLE>
<CAPTION>
FRANCE SPAIN HOLLAND BELGIUM DEAL MO-I-RANA U.K. OWNED TOTAL IRELAND TOTAL
U.K. EQUIPMENT TRADEMARK MAIL
TRADENAME ORDER
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Cash 246 - - - - - - 246 - 246
Property nil 1 1 1 2 - - 5 650 655
Equipment 141 - 12 11 571 1,896 - 2,631 1574 4,205
Inventories 340 113 6 6 209 - - 674 271 945
Receivable 377 58 406 501 - - - 1,342 744 2,086
Other Assets 81 36 - 126 90 - - 333 65 398
Trademarks, Tradename 1,565 - - - - - 883 2,448 - 2,448
Customer List 2,378 - 292 424 - - - 3,094 - 3,094
Goodwill, Knowhow etc. - 248 88 383 391 - - 1,126 5,197 6,307
----- --- --- ----- ----- ----- ----- ------ ----- ------
Total 5,128 456 805 1,452 1,263 1,896 883 11,899 8,501 20,384
</TABLE>
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<PAGE> 97
<TABLE>
<CAPTION>
FRANCE SPAIN HOLLAND BELGIUM DEAL MO-I-RANA U.K. OWNED TOTAL IRELAND TOTAL
U.K. EQUIPMENT TRADEMARK MAIL
TRADENAME ORDER
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Assumed Payables &
Accruals 2,423 103 284 350 543 - - 3,703 769 4,472
----- --- --- ----- --- ----- --- ----- ----- ------
Net Price Allocation 2,705 353 521 1,102 720 1,896 883 8,196 7,732 15,912
===== === === ===== === ===== === ===== ===== ======
</TABLE>
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<TABLE>
<CAPTION>
MARKETING COSTS ADDITIONAL EQUIPMENT TOTAL
<S> <C> <C> <C>
Cash - - 246
Property 655
Equipment - 472 4,677
Inventories - - 945
Receivables - - 2,086
Other Assets 45 - 443
Trademarks, Tradename - - 2,448
Customer List - - 3,094
Goodwill, Knowhow etc. - - 6,307
- ---------------------------------------------------------------------------------------------------------------------------
Total 45 472 20,901
Assumed Payables & Accruals - - 4,472
- ---------------------------------------------------------------------------------------------------------------------------
Net Price Allocation 45 472 16,429
</TABLE>
- 95 -
<PAGE> 99
SCHEDULE 7
CREDITORS TO BE DISCHARGED BY PURCHASERS
Schedule has been omitted in accordance with S-K 601(b)(2) and will be submitted
to the Commission upon request.
- 96 -
<PAGE> 100
SCHEDULE 8
PENSION ARRANGEMENTS
1) The parties acknowledge that after Completion Nederland may wish to
continue the pension arrangements previously made available by
ColourCare International B.V. to the Dutch Employees. The Vendor
shall provide and will procure that ColourCare International B.V. will
also provide, upon request, all reasonable assistance to Nederland to
have the insurer of the pensions of those of the Dutch Employees that
have a pension insurance and to have those Dutch employees, consent to
the assignment of the relevant pension insurance agreements from
ColourCare International B.V. to Nederland. If any such consent
cannot be obtained or if Nederland does not wish to continue the
pension arrangements previously made available by ColourCare
International B.V. to the Dutch Employees, each of the Dutch Employees
in question shall receive a paid-up policy (premie vrije polis) fully
paid by the Vendor or ColourCare International B.V. in accordance with
the pension policy concerned and the Pension Act (Pensioen en
Spaarfondsenwet) representing the pension benefits due to him up to
the date of Completion.
2) Prior to or as soon as practicable after Completion the Vendor will
supply the Purchasers with copies of all trust deeds and rules
governing or relating to the LIG Eire Pension Scheme and if so
requested by the Purchasers the Vendor will cooperate with the
Purchasers in relation to the assignment or transfer of the LIG Eire
Pension Scheme to the Purchasers or to the establishment of a similar
arrangement with Standard Life and if so requested by the Purchasers
the Vendor will execute a Deed of Substitution in such form as may
reasonably be agreed by the parties under which Photo (or whichever
other company within the Nashua Group as Nashua may decide) will be
substituted as the Principal Employer of the LIG Eire Pension Scheme.
3) The Vendor will indemnify and keep indemnified on a continuing basis
and fully reimburse on demand the Purchasers against all and any
awards, losses, damages, liabilities, penalties, interest and expenses
(including all reasonable fees) which the Purchasers and/or any member
of the Nashua Group may incur by reason or on account of or arising
from any action, claim or other legal recourse of any kind whatsoever
arising directly or indirectly from any non-compliance of any
Disclosed Scheme (as defined in paragraph 14 of Schedule 5) with
applicable local laws including, without limitation, all relevant
local statutes and subordinate legislation and all relevant provisions
of the law of the European Communities and all applicable laws in
accordance with the trusts, powers and provisions of the Disclosed
Scheme provided that the Purchasers shall not settle or make any
payment in respect of any claim without having first obtained the
consent of the Vendor (such consent not to be unreasonably withheld)
and the Purchasers shall notify the Vendor immediately any claim is
notified to them.
- 97 -
<PAGE> 101
SCHEDULE 9
CONTRACTS
PART A
1. CONTRACTS OF THE BELGIAN BUSINESS OF COLOURCARE INTERNATIONAL B.V.
(a) CONTRACTS WITH SUPPLIERS AND THE PROVIDERS OF SERVICES
Contract for Advertising services
Dated : 1 December 1992
Between : ColourCare Belgium - McCann-Erikson
Contract for distribution of samples and brochures
Dated : 28 May 1991
Between : MaxiColor and SNMPME S.A.
Contract for distribution of samples and brochures
Dated : 3 November 1993
Between : ColourCare and ACI S.A.
Contract for distribution of mail
Undated
Between : MaxiColor and The Post Office
Contract for management of marketing services
Dated : 15 November 1992
Between : MaxiColor and Management Consulting
and Listbroking Services N.V.
Contract for inspections
Dated: 1 June 1992
Between: ColourCare Belgium and De Verenigde
Industrieen
- 98 -
<PAGE> 102
(b) CONTRACTS FOR THE MAINTENANCE AND THE LEASING OF OFFICE
EQUIPMENT
Contract for a lease of the telephone system
Dated : 12 July 1989
Between : Trifca and Siemens S.A.
Maintenance contract for telephone system
Undated
Between : Trifca and Siemens S.A.
Contract for lease of a franking machine
Dated : 16 December 1993
Between : Trifca and Ascom
Contract for rent of a container
Dated : 26 January 1993
Between : MaxiColor and Containerdienst Van
Heede BVBA
(c) CONTRACTS FOR THE LEASING OF VEHICLES USED BY MEMBERS OF STAFF
Renault Safrane
Dated : 11 February 1993
Between : Trifca and Intrans
Volkswagen Golf GTI
Dated : 15 September 1993
Between : Trifca and Intrans S.A.
2. CONTRACTS OF THE BUSINESS OF COLOURCARE INTERNATIONAL S.L.
(a) CONTRACTS WITH SUPPLIERS AND THE PROVIDERS OF SERVICES
Contract for courier services
Dated: 30 April 1991
Between: Labopost S.L. and MRW Worldwide
Contract whereby Labopost undertakes to accept various
credit cards
Dated: 10 April 1992
Between: Labopost S.L. and Caja Postal S.A.
- 99 -
<PAGE> 103
Contract for developing films sent by Codorniu's customers
Dated: 18 October 1993
Between: Labopost S.L. and Cordiorniu
Contract for security services
Dated: [ ]
Between: Labopost S.L. and Prosegur
(b) CONTRACTS FOR THE MAINTENANCE AND LEASING OF OFFICE EQUIPMENT
Contract for the maintenance of 2 typewriters and 1 calculator
Dated: 3 May 1993
Between: Labopost S.L. and Navarro Maquinas
de Officina
Contract for the maintenance of hardware (computers)
Dated: 11 October 1991
Between: Labopost S.L. and NCR Espana S.A.
Contract for the cleaning and maintenance of premises
Dated: 31 March 1991
Between: Labopost S.L. and GAENAN S.A.
Contract for the maintenance of photocopiers
Dated: 4 July 1991
Between: Labopost S.L. and Agfa-Gevaert S.A.
Contract for the maintenance and upkeep of two computers
Dated: 1 June 1993
Between: Labopost S.L. and Microman S.A.
Contract for the maintenance of software
Dated: 2 April 1993
Between: Labopost S.L. and Sybel Informatica
(c) OTHER CONTRACTS
Contract allowing PDM to use data in Labopost's possession to
carry out direct marketing (mailings)
Dated: 1 July 1993
- 100 -
<PAGE> 104
Between: Labopost S.L. and PDM, Marketing,
Publicidad Directa, S.A.
3. CONTRACTS OF THE BUSINESS OF COLOURCARE INTERNATIONAL (NORTHERN
IRELAND) LIMITED
(a) CONTRACTS WITH SUPPLIERS AND THE PROVIDERS OF SERVICES
Packet Post Daily Rate Contract
Dated: 31 January 1994
Between: ColourCare International (UK) Limited
and The Royal Mail
Packet Post Daily Rate Contract
Dated: 31 January 1994
Between: ColourCare International (NI) Limited
and The Royal Mail
Planned Service Inspection Contract
Dated: 31 January 1994
Between: Bel-Air Refrigeration Limited and
ColourCare International (NI) Limited
Belmont Maintenance Contracts [see details attached]
Service Contract Agreement
Dated: 1 September 1993
Between: Photographic Maintenance Services
and ColourCare International (NI)
Limited
Service Agreement
Dated: 31 May 1993
Between: Photographic Maintenance Services
and ColourCare International (NI)
Limited
Contract for Collection and Delivery
There are no formal contracts in place
Between: United Drug plc
and ColourCare International (NI)
Limited
Mini-Lab Maintenance Contracts and Main-Lab
Maintenance Contracts [see attached schedule]
- 101 -
<PAGE> 105
(b) CONTRACT FOR THE MAINTENANCE AND LEASING OF OFFICE EQUIPMENT
Contract re Miracle Licence Fees with Deal and Belmont [see
attached].
(c) CONTRACTS FOR THE LEASING OF VEHICLES [USED BY MEMBERS OF
STAFF?]
See attached Schedule of Vehicles.
The leasing arrangements are with Lombard & Ulster Leasing
Facilities, Ulster Bank Limited, Northern Bank Industrial
Leasing Limited, Northern Bank Commercial Leasing Limited,
Lombard & Ulster Plant Limited, Northern Bank Equipment
Leasing Limited, Lombard & Ulster Leasing Limited, Lombard &
Ulster Leasing Partnership, Lombard & Ulster Facilities
Limited, Lombard & Ulster Industrial Limited or Anglo Irish
Bank Corporation plc or Denis Mahony (Contract Rentals).
4) CONTRACTS OF THE BUSINESS OF THE DUTCH BRANCH OF COLOURCARE
INTERNATIONAL B.V.
a) CONTRACTS WITH SUPPLIERS AND THE PROVIDERS OF SERVICES
(1) parties: ColourCare International B.V. and PTT
Post
date: 8 November 1993
subject: PTT Mail Tariffs 1994
(2) parties: Trifca International B.V. (now
ColourCare) and PTT Telecommunicatle
date: 12 February 1988
subject: installation telephone
(3) parties: ColourCare International B.V. and
EMS the courier of PTT Post
date: 1 November 1993
subject: courier services
(4) parties : Trifca International B.V. (now
ColourCare) and Gemeente
Energiebedrijf Rotterdam
date: 27 January 1988
subject: electricity supply
(5) parties: Trifca International B.V. (now
ColourCare) and Veenman kantoor
machines B.V.
date: 14 January 1988
- 102 -
<PAGE> 106
subject: purchase and services contract for copier
(6) parties: ColourCare International B.V. and Exact
Automatisering B.V.
date: unknown
subject: maintenance of software
(7) parties: ColourCare International B.V. and McCann
Direct Amsterdam B.V.
date: [28 February 1992/12 January 1993]
subject: advertising services
(8) [car lease contract]
5) FREEPRINT LIMITED/COLOURCARE INTERNATIONAL LIMITED
(1) parties: Erskine Communications and ColorCare
Limited
date: 7 July 1989
subject: rent of Nefax 400 fax machine
(2) parties: Sovereign Finance plc and ColourCare
Limited
date: [ ]
subject: finance lease agreement
(3) parties: Freeprint Limited and Erskine
Communications Limited
date: 9 November 1993
subject: supply of 3 copiers
(4) parties: Freeprint Limited and Wilman Business
Machines Limited
date: 19 September 1990
subject: copier
(5) parties: Freeprint Limited and [ ]
date: [ ]
subject: finance lease obligations re: Granada
Scorpio 2.0
6) COLOURCARE INTERNATIONAL S.A.
(1) parties: SLET and Trifca International S.A.
date: 30 June 1987
subject: electronic weighing machine
- 103 -
<PAGE> 107
(2) parties: SMH Neopost and ColourCare France
S.A.
date: [ ]
subject: stamping machines
(3) parties: SMH Neopost and Trifca International
S.A.
date: [ ]
subject: maintenance contract
(4) parties: Opus alcatel and ColourCare France
S.A.
date: [ ]
subject: stamping machine
(5) parties: Nord Mecanographic and Trifca
International S.A.
date: 13 February 1991
subject: maintenance of computer equipment
(6) parties: Moore Paragon and ColourCare France
S.A.
date: [ ]
subject: [ ]
(7) parties: Pitney Bowes France S.A. and
ColourCare France S.A.
date: [ ]
subject: maintenance contract
(8) parties: [ ] and ColourCare Trifca
date: 1 November 199[2]
subject: maintenance contract
(9) parties: Reprox 3 and ColourCare France S.A.
date: [ ]
subject: maintenance contract re. Canon
photocopier
(10) parties: Minolta and ColourCare France
date: 25 May 1992
subject: photocopying machine
(11) parties: Sovac and ColourCare France S.A.
date: [ ]
subject: [ ]
- 104 -
<PAGE> 108
(12) parties: Intercopy and ColourCare France S.A.
date: [ ]
subject: maintenance contract of Minolta
EP 8600 photocopier
(13) parties: Location and ColourCare International
date: [ ]
subject: rental contract of Peugeot 306 XRD
(14) parties: Fin Saab and ColourCare International
date: 7 June 1993
subject: Saab car rental contract
(15) parties: Medior Cible la Redoute and
ColourCare France
date: [ ]
subject: advertising contract
(16) parties: Compagnie du Credit Universal and
ColourCare France S.A.
date: 1 March 1993
subject: leaseback agreement
(17) parties: Boekels GmbH & Co & ColourCare France
S.A.
date: 5 August 1994
subject: stamping machine maintenance contract
(18) parties: Serit & ColourCare International
date: [ ]
subject: Bagneux telephone equipment
(19) parties: Locafrance equipment & Colourcare
International
date: [ ]
subject: photocopying machine rental
(20) parties: IMA and ColourCare France S.A.
date: [ ]
subject: maintenance contract
(21) parties: Transbank and ColourCare France S.A.
date: 1 March 1991
subject: service contract
- 105 -
<PAGE> 109
(22) parties: Minolta France and ColourCare
International
date: [ ]
subject: photocopying machine
- 106 -
<PAGE> 110
SCHEDULE 10
EQUIPMENT
PART A
(SCANDINAVIAN EQUIPMENT)
Schedule has been ommitted in accordance with S-K 601(b)(2) and will be
submitted to the Commission upon request.
- 107 -
<PAGE> 111
PART B
(U.K. EQUIPMENT)
<TABLE>
<CAPTION>
NO. OF UNITS MAKE MODEL DESCRIPTION APPROX
YEAR RELEASE
AMOUNT
<S> <C> <C> <C> <C> <C>
1 CALDER 60 ft/min Film Processor 1988 27,000
2 GRETAG 40K Finishing Stations 1990 34,000
Complete
1 AGFA APS2 35mm splicer 1990 25,000
2 NORITSU Not Known 16mm paper processors 1986 51,000
4 GRETAG 3141 Printers 1984 136,000
9 AGFA APS1 35mm Splicers 1986 93,000
2 CALDER 60 ft/min Film processors 1987 34,000
TOTAL 400,000
=======
</TABLE>
- 108 -
<PAGE> 112
SCHEDULE 11
EMPLOYEES
Schedule has been omitted in accordance with S-K 601(b)(2) and will be submitted
to the Commission upon request.
- 109 -
<PAGE> 113
SCHEDULE 12
SELLING SUBSIDIARIES
<TABLE>
<S> <C>
NAME OF SUBSIDIARY DESCRIPTION OF ASSETS
ColourCare International B.V. Belgian Assets
ColourCare International B.V. Dutch Assets
ColourCare International Limited Equipment
ColourCare International S.L. Spanish Assets
ColourCare International Limited/Freeprint UK Assets
Limited
ColourCare International (Northern Ireland) Irish Assets
Limited
ColourCare International Limited and ColourCare Intellectual Property Rights other than the
International (Northern Ireland) Limited MaxiColor trade mark
Freeprint Limited Property
ColourCare International (Northern Ireland)
Limited
ColourCare International B.V.
ColourCare International S.L.
</TABLE>
- 110 -
<PAGE> 114
SCHEDULE 13
MAJOR CONTRACTS
A) ASSET LEASES:
28.04.1990 Northern Bank Commercial Leasing Limited and BPS;
22.03.1992 Northern Bank Industrial Leasing Limited and Belmont
Photographic Services Limited (BPS);
23.04.1992 Northern Bank Commercial Leasing Limited and BPS;
27.04.1992 Northern Bank Commercial Leasing Limited and BPS;
18.08.1993 Northern Bank Leasing Limited and ColourCare International
(Northern Ireland) Limited;
22.11.1993 Northern Bank Equipment Leasing Limited and ColourCare
International (Northern Ireland) Limited;
08.12.1993 Northern Bank Equipment Leasing Limited and ColourCare
International (Northern Ireland) Limited;
12.06.1990 Lombard & Ulster Leasing Facilities and BPS;
11.06.1991 Lombard & Ulster Leasing Facilities and BPS;
02.08.1991 Lombard & Ulster Leasing Limited and BPS;
02.08.1991 Lombard & Ulster Leasing Facilities and BPS;
26.02.1992 Three Agreements between Lombard & Ulster Leasing
Partnership and BPS;
07.05.1992 Lombard & Ulster Leasing Facilities and BPS;
Undated Lombard & Ulster Plant Limited and BPS;
16.08.1992 Lombard & Ulster Leasing Limited and ColourCare
International (Northern Ireland) Limited (two Agreements);
22.12.1992 Lombard & Ulster Facilities Limited and BPS;
01.02.1993 Lombard & Ulster Industrial Limited and BPS; and
- 111 -
<PAGE> 115
16.03.1993 Lombard & Ulster Leasing Limited and ColourCare
International (Northern Ireland) Limited.
B) OTHERS:
Contract Hire Lease Agreement dated 15 May 1992 between (1) Anglo
Irish Bank Corporation plc and (2) Belmont Photographic Services
(Ireland) Limited;
Contract between (1) Bel-Air Refrigeration Ltd and (2) ColourCare
International (Northern Ireland) Limited dated 31 January 1994;
PMS Service Contract between (1) Photographic Maintenance Services and
(2) ColourCare International (Northern Ireland) Limited dated 1
September 1993;
PMS Service Agreement between (1) Photographic Maintenance Services
and (2) ColourCare International (Northern Ireland) Limited dated 31
May 1993;
Agreement dated 18 November 1994 and made between (1) Connor's
Chemists Limited and (2) ColourCare International (Northern Ireland)
Limited;
Contract dated [ ] and made between (1) SuperColor S.A.
and (2) ColourCare International S.L. relating to the processing of
films;
La Redoute Contract.
- 112 -
<PAGE> 116
EXECUTED by the parties
Signed by PETER SKERROW ) P. SKERROW
for and on behalf of )
NEXUS PHOTO LIMITED )
in the presence of: )
Name of Witness : Duncan McDonald
---------------------
Signature of Witness: DUNCAN MCDONALD
---------------------
Address of Witness: 190 Strand
---------------------
London WC2R 1JN
---------------------
Occupation of Witness: Solicitor
---------------------
Signed by PETER CLARKE ) P. CLARKE
for and on behalf of )
NASHUA PHOTO LIMITED )
in the presence of: )
Name of Witness : Sarah Cloke
---------------------
Signature of Witness: SARAH CLOKE
---------------------
Address of Witness: 200 Aldersgate Street
---------------------
London EC1A 4JJ
---------------------
Occupation of Witness: Solicitor
---------------------
- 113 -
<PAGE> 117
Signed by JOHN MAPLEY ) JOHN MAPLEY
for and on behalf of )
NASHUA NEDERLAND B.V. )
in the presence of: )
Name of Witness : Sarah Cloke
---------------------
Signature of Witness: SARAH CLOKE
---------------------
Address of Witness: 200 Aldersgate Street
---------------------
London EC1A 4JJ
---------------------
Occupation of Witness: Solicitor
---------------------
Signed by JOHN MAPLEY ) JOHN MAPLEY
for and on behalf of )
NASHUA PHOTO LICENSING )
INC. in the presence of: )
Name of Witness : Sarah Cloke
---------------------
Signature of Witness: SARAH CLOKE
---------------------
Address of Witness: 200 Aldersgate Street
---------------------
London EC1A 4JJ
---------------------
Occupation of Witness: Solicitor
---------------------
- 114 -
<PAGE> 118
Signed by PETER ANASTOS ) PETER ANASTOS P.C.A
for and on behalf of )
NASHUA CORPORATION )
in the presence of: )
Name of Witness : Sarah Cloke
---------------------
Signature of Witness: SARAH CLOKE
---------------------
Address of Witness: 200 Aldersgate Street
---------------------
London EC1A 4JJ
---------------------
Occupation of Witness: Solicitor
---------------------
Signed by JOHN MAPLEY ) JOHN MAPLEY
for and on behalf of )
NASHUA BELMONT LIMITED )
in the presence of: )
Name of Witness : Sarah Cloke
---------------------
Signature of Witness: SARAH CLOKE
---------------------
Address of Witness: 200 Aldersgate Street
---------------------
London EC1A 4JJ
---------------------
Occupation of Witness: Solicitor
---------------------
- 115 -
<PAGE> 119
Signed by JOHN MAPLEY ) JOHN MAPLEY
for and on behalf of )
NASHUA PHOTO )
INTERNATIONAL )
INVESTMENTS INC. )
in the presence of: )
Name of Witness : Sarah Cloke
---------------------
Signature of Witness: SARAH CLOKE
---------------------
Address of Witness: 200 Aldersgate Street
---------------------
London EC1A 4JJ
---------------------
Occupation of Witness: Solicitor
---------------------
Signed by JOHN MAPLEY ) JOHN MAPLEY
for and on behalf of )
NASHUA PHOTO EUROPEAN )
INVESTMENTS, INC. )
in the presence of: )
Name of Witness : Sarah Cloke
---------------------
Signature of Witness: SARAH CLOKE
---------------------
Address of Witness: 200 Aldersgate Street
---------------------
London EC1A 4JJ
---------------------
Occupation of Witness: Solicitor
---------------------
- 116 -
