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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
Date of Report (date of earliest event reported): December 2, 1997
THE COOPER COMPANIES, INC.
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(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 1-00041 94-3019135
- ------------------------------- ---------------------- ---------------------
(State or other jurisdiction of (Commission File Number) (I.R.S. Employer
Incorporation) Identification Number)
</TABLE>
6140 Stoneridge Mall Road, Pleasanton, California 94588
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(Address of principal executive offices) (Zip Code)
(510) 460-3600
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(Registrants' telephone number, including area code)
n/a
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(former name or former address, if changed since last report)
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ITEM 2. Acquisition or Disposition of Assets
On December 2, 1997 (the "Closing Date"), The Cooper Companies,
Inc., a Delaware corporation (the "Company"), through its wholly owned
subsidiary, Aspect Vision Holdings Limited, an English company ("AVH"), acquired
(the "Acquisition") all of the outstanding capital stock of the following
privately held English companies: New Focus Health Care Limited ("NFHC"),
Contact Lens Technologies Limited ("CLT") and Aspect Vision Care Limited
("AVC"). The Company also acquired a majority of the outstanding capital stock
of Aspect Vision Italia S.R.L., a privately held Italian company ("AVI"), and
intends to purchase the remainder of AVI's stock pursuant to certain put and
call option arrangements, at prices to be agreed upon by the parties. NFHC, AVC,
AVI and CLT are herein collectively referred to as the "Aspect Companies." The
Aspect Companies manufacture contact lenses sold primarily in the United Kingdom
and other European countries.
The Acquisition was accomplished pursuant to the following
agreements: an Umbrella Agreement dated November 20, 1997, among the agent for
the Aspect Companies, who is also a stockholder of certain of the Aspect
Companies (the "Agent"), AVH and the Company; an Agreement for the sale and
purchase of NFHC dated November 20, 1997, among the Agent, AVH, the Company and
the former stockholders of NFHC; an Agreement for the sale and purchase of AVC
dated November 20, 1997, among AVH, the Company and the former stockholders of
AVC; an Agreement for the sale and purchase of CLT dated November 20, 1997,
among AVH, the Company and the former stockholders of CLT; and an Agreement for
the sale and purchase of AVI dated November 20, 1997, among AVH, the Company and
the former stockholders of AVI (collectively, the "Purchase Agreements").
On the Closing Date, AVH paid the former stockholders of the
Aspect Companies an aggregate of approximately 'L'30 million (equal to $50.4
million at the closing exchange rate of $1.68 on the Closing Date), consisting
of 'L'15 million in cash and an aggregate principal amount of approximately
'L'15 million in 8% five year notes of AVH (the "Notes"), guaranteed by the
Company, pursuant to the terms of a Loan Note Instrument executed by AVH as
issuer and the Company as guarantor, dated December 2, 1997. Pursuant to the
terms of a Third Party Charge Over Shares dated December 2, 1997, between the
Agent and the Company, the Company granted the holders of the Notes a security
interest in AVH's stock, par value 10 pence per share, owned by the Company.
The purchase price was determined through arms-length
negotiations. 'L'10.5 million of the cash portion of the purchase price was
financed by a 5 year loan from Midland Bank plc at a current interest rate of
8.1% per annum, which is locked in until February 27, 1998 and will adjust from
time to time under LIBOR-based options provided in the loan agreement. The
remainder of the purchase price was funded by cash on hand.
Pursuant to an Earn Out Agreement dated December 2, 1997 between
the Agent, AVH and the Company (the "Earn Out Agreement") and a stock option
arrangement established by AVH (the "AVH Option Scheme"), the Agent and others
(the "Optionholders"), primarily
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consisting of certain employees of the Aspect Companies, will receive certain
earn out payments, as described herein and in the Earn Out Agreement.
Under the Earn Out Agreement, AVH has agreed to pay to the Agent
and to the Optionholders an amount ("the Earn Out Amount") calculated primarily
by reference to a percentage of the adjusted pre-tax profits (as defined in the
Earn Out Agreement) of AVH and the Aspect Companies for each of the fiscal years
ended in 1998, 1999 and 2000, multiplied by certain multiples. AVH has agreed to
issue to the Agent in early 2001 a note payable for an amount not less than a
certain percentage of the Earn Out Amount. Such note is repayable (subject to
certain pre-payment rights) on the fifth anniversary of issue. The minimum
amount of the Earn-Out Amount is 'L'5,000,000 and the maximum amount is not
limited.
The Aspect Companies will operate under their current names and
management as a part of the group that includes CooperVision, Inc. ("CVI"), the
Company's contact lens business. In the opinion of the Company's management, the
Aspect Companies' businesses are complementary to CVI's business, both in terms
of products offered and geography served.
The Aspect Companies manufacture and market broad lines of
traditional, frequent replacement and disposable soft lenses using a number of
polymers and a range of lens "geometries," i.e. the parameters, diameters, base
curves and lens edges included in the design of a contact lens. The Aspect
Companies manufacture and distribute their lenses from two facilities in the
United Kingdom having an aggregate of approximately 145,000 square feet, where
the Aspect Companies employ approximately 650 people. The Aspect Companies
manufacture their lenses using their patented UltraSYNC'r' molding technology,
which produces completely finished lenses with a minimal labor component.
A copy of each of the Purchase Agreements, the Loan Note
Instrument, the Third Party Charge Over Shares and the Earn Out Agreement
(collectively, the "Agreements") are filed as exhibits hereto and incorporated
herein by reference. The descriptions of the Agreements set forth herein do not
purport to be complete and are qualified in their entirety by the provisions of
the Agreements. Exhibits A through K (collectively, the "Umbrella Exhibits") of
the Umbrella Agreement, listed below, do not contain information which is
material to an investment decision and have therefore not been attached to this
filing, pursuant to Item 601 of Regulation S-K. The Company will supplementally
furnish the Commission with a copy of any of the Umbrella Exhibits upon request.
The following list identifies the contents of the Umbrella Exhibits:
Exhibit A: Accounts
Exhibit B: Management Accounts
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Exhibit C: Memorandum and Articles of Association
Exhibit D: Financial facilities
Exhibit E: Insurance policies
Exhibit F: Material contracts
Exhibit G: Particulars of employees
Exhibit H: List of members of group personal pension scheme
Exhibit I: Particulars of Pension Schemes
Exhibit J: Particulars of Intellectual Property
Exhibit K: Intellectual Property Agreements
ITEM 7. Financial Statements, Pro Forma Financial Information and
Exhibits.
(a) Financial Statements of Business Acquired.
The Company has not included the required financial statements of
the Aspect Companies at the time of filing this Current Report on Form 8-K. The
required financial statements will be filed by amendment to this Report as soon
are they are available, but in any event no later than 60 days after December
17, 1997.
(b) Pro Forma Financial Information.
The Company has not included the required pro forma financial
information pertaining to the Acquisition at the time of filing this Current
Report on Form 8-K. The required pro forma financial information will be filed
by amendment to this Report as soon as it is available, but in any event no
later than 60 days after December 17, 1997.
(c) Exhibits: The following exhibits are filed as part of this
Report:
2.1 Umbrella Agreement among the Agent, AVH and the Company.
2.2 Agreement for the sale and purchase of NFHC among the Agent,
AVH, the Company and the former stockholders of NFHC.
2.3 Agreement for the sale and purchase of AVC among AVH,
the Company and the former stockholders of AVC.
2.4 Agreement for the sale and purchase of CLT among AVH, the
Company and the former stockholders of CLT.
2.5 Agreement for the sale and purchase of AVI among AVH,
the Company and the former stockholders of AVI.
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99.1 Loan Note Instrument.
99.2 Third Party Charge Over Shares between Anthony Galley
and the Company.
99.3 Earn Out Agreement between Anthony Galley, AVH
and the Company.
ITEM 9. Sales of Equity Securities Pursuant to Regulation S.
On the Closing Date, pursuant to the terms of a Put and Call
Option Agreement dated November 20, 1997, between the Company and one of the
former stockholders of AVC (the "Stockholder"), entered into in connection with
the Purchase Agreements, the Company purchased from the Stockholder Notes in the
aggregate principal amount of 'L'888,100. In exchange, the Company issued to
the Stockholder 38,013 shares (the "Shares") of the Company's common stock, par
value $.10 per share. The Shares were issued in reliance on the exemptions from
registration under the Securities Act of 1933, as amended (the "Securities Act")
contained in Sections 4(2) and 4(6) of the Securities Act, Rules 505 and 506 of
Regulation D thereunder and Rule 903 of Regulation S thereunder. The Stockholder
is an accredited investor (as defined in Regulation D) and not a U.S. person (as
defined in Regulation S). The Company did not make any directed selling efforts
(as defined in Regulation S) in the United States with respect to the Shares and
the Shares were not issued by any form of general solicitation or general
advertising.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
THE COOPER COMPANIES, INC.
By: /s/ Stephen C. Whiteford
----------------------------
Stephen C. Whiteford
Vice President and
Corporate Controller
(Principal Accounting Officer)
Dated: December 16, 1997
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EXHIBIT INDEX
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2.1 Umbrella Agreement among the Agent, AVH and the Company.
2.2 Agreement for the sale and purchase of NFHC among the Agent,
AVH, the Company and the former stockholders of NFHC.
2.3 Agreement for the sale and purchase of AVC among AVH,
the Company and the former stockholders of AVC.
2.4 Agreement for the sale and purchase of CLT among AVH, the
Company and the former stockholders of CLT.
2.5 Agreement for the sale and purchase of AVI among AVH,
the Company and the former stockholders of AVI.
99.1 Loan Note Instrument.
99.2 Third Party Charge Over Shares between Anthony Galley
and the Company.
99.3 Earn Out Agreement between Anthony Galley, AVH
and the Company.
STATEMENT OF DIFFERENCES
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The British pound sterling sign shall be expressed as................. 'L'
The registered trademark symbol shall be expressed as................. 'r'
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EXHIBIT 2.1
Dated November 1997
ANTHONY DAVID GALLEY (1)
ASPECT VISION HOLDINGS LIMITED (2)
AND
THE COOPER COMPANIES, INC. (3)
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Umbrella Agreement
for the sale and purchase
of the issued share capital
of Aspect Vision Care Limited and other companies
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CAMERON MCKENNA
MITRE HOUSE
160 ALDERSGATE STREET
LONDON EC1A 4DD
T + 44(0)171-367 3000
F + 44(0)171-367 2000
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TABLE OF CONTENTS
1. Definitions and interpretation......................................1
2. Condition..........................................................10
3. Sale and purchase..................................................11
4. Consideration......................................................11
5. Completion.........................................................12
6. Completion Accounts................................................13
7. Warranties.........................................................14
8. Limitation of Vendor's liability...................................15
9. Indemnities........................................................16
10. Set Off............................................................16
11. TCC Stock Options and the Scheme...................................17
12. Environmental Indemnity............................................18
13. RTPA...............................................................19
14. Announcements......................................................19
15. Assignment.........................................................20
16. Remedies cumulative................................................20
17. Waiver, variation and release......................................20
18. Costs and expense..................................................21
19. Notices............................................................21
20. Counterparts.......................................................22
21. Language...........................................................22
22. Invalidity.........................................................22
23. Agreement to continue in full force and effect.....................22
24. Confidentiality....................................................23
25. Governing law and jurisdiction.....................................23
Schedule 1 The Sellers.................................................25
Part 1 - Aspect Vision Care Limited...............................25
Part 2 - New Focus Health Care Limited............................25
Part 3 - Contact Lens Technologies Limited........................26
Part 4 - Aspect Vision Italia s.r.l...............................26
Schedule 2 Part 1 - The Companies......................................27
Part 2 - The Subsidiaries.........................................31
Schedule 3 Properties..................................................35
Part 1 - General description......................................35
Part 2 - Leases...................................................36
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Schedule 4.............................................................37
Schedule 5 The Warranties..............................................38
Schedule 6 Basis for preparation of the Completion Accounts............71
Schedule 7 Completion Part 1 - Delivery of documents by Vendor.........74
Part 2 - Actions by Vendor......................................74
Part 3 - Delivery of documents and actions by the Purchaser.....75
Part 4 - Delivery of documents and actions by TCC...............75
Schedule 8 Limitation of Vendor's liability............................76
Part 1 - General limitations...........................................76
Part 2 - Financial limitations under the Warranties,
Indemnities and the Deed of Tax Covenant.........................77
Part 3 - Time limitations under the Warranties (other than Tax
Warranties and Environmental Warranties).........................78
Part 4 - Time limitations under the Tax Warranties...............78
Part 5 - Environmental Warranties and Environmental Indemnity....79
Part 6 - Other provisions........................................79
Schedule 9 Part 1 - Exhibits...........................................80
Part 2 - Documents in the agreed terms...........................80
Schedule 10 TCC Stock Options..........................................81
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THIS AGREEMENT is made the day of November 1997
BETWEEN:-
(1) ANTHONY GALLEY of Beacon Wey, The Hangers, Bishops Waltham Hampshire S032
1FZ (the "Vendor");
(2) ASPECT VISION HOLDINGS LIMITED (registered in England with number 3448379)
whose registered office is at Mitre House, 160 Aldersgate Street, London
EC1A 4DD (the "Purchaser"); and
(3) THE COOPER COMPANIES, INC. a company incorporated in Delaware whose
principal office is at 6140 Stoneridge Mall Road, Suite 590 Pleasanton CA
94588 ("TCC").
WHEREAS:-
(A) The Vendor is a shareholder in and/or a director of each of the Companies
(as defined below).
(B) The Purchaser wishes to purchase, directly or indirectly, the entire issued
share capitals of the Companies from the Sellers (as defined below) and the
Vendor has agreed to use all reasonable endeavours to procure the sale of
the Companies in each case upon and subject to the terms and conditions of
this Agreement.
WHEREBY IT IS AGREED as follows:-
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following words and expressions have the meanings
set opposite them:
"ACCOUNTS": the audited balance sheet as at the Balance Sheet
Date and the audited profit and loss account for
each Group Company and the notes, reports,
statements and other documents which are or would
be required by law to be annexed to the Accounts
of the company concerned and to be laid before
such company in general meeting for such
Financial Year, a copy of each of which is
contained in EXHIBIT A;
"ACCOUNTING STANDARDS": statements of standard accounting practice
(including financial reporting standards) issued
pursuant to section 256, CA 85 by the ASB;
"AGREED PROPORTIONS": has the meaning set out in clause 4 of the Deed
of Contribution;
"ASB": Accounting Standards Board Limited (registered
number 2526824) or such other body prescribed by
the Secretary of State from time to time pursuant
to section 256, CA 85;
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"AFFILIATE": in relation to any body corporate, any Holding
Company or subsidiary undertaking of such body
corporate or any subsidiary undertaking of a
Holding Company of such body corporate;
"AGREEMENT": this Agreement including its recitals and the
schedules hereto but not the Deed of Tax Covenant
or the Exhibits;
"AVC AGREEMENT": the agreement in the agreed terms to be entered
into at Completion between the Purchaser and
those Sellers holding shares in Aspect Vision
Care Limited relating to the sale and purchase of
those Shares;
"AUDITORS": Leonard Gold Chartered Accountants;
"AVI AGREEMENT": the agreement in the agreed terms to be entered
into at Completion between the Purchaser and
those Sellers holding shares in Aspect Vision
Italia s.r.l relating to the sale and purchase of
those Shares;
"BALANCE SHEET DATE": 31 March 1997;
"BENEFICIARIES": means any and all of the Purchaser, TCC and the
Companies and in each case their directors,
officers, employees, agents and shareholders;
"BUSINESS": collectively the businesses of each Group Company
as carried on at any time in the twelve months
prior to the date hereof;
"BUSINESS DAY": a weekday (other than a Saturday) when banks are
open for business in London;
"CA 85": Companies Act 1985;
"CAA": Capital Allowances Act 1990;
"CASH CONSIDERATION": the cash consideration payable for the Shares;
"CLAIM AMOUNT": has the meaning set out in CLAUSE 10.2;
"CLT AGREEMENT": the agreement in the agreed terms to be entered
into at Completion between the Purchaser and
those Sellers holding shares in Contact Lens
Technologies Limited relating to the sale and
purchase of those Shares;
"COMPANIES": the companies details of which are set out in
PART 1 of SCHEDULE 2;
"COMPANIES ACTS": as defined in section 744, CA 85 together with
the Companies Act 1989;
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"COMPETENT
AUTHORITY": means any person or legal entity (including
any government or government agency) having
regulatory authority and/or any court of law
or tribunal, or any local or national agency,
authority, department, inspectorate, minister,
ministry, official or public or statutory person
(whether autonomous or not) of, or the government
of, the United Kingdom or the European Community;
"COMPLETION": completion of the sale and purchase of the Shares
pursuant to this Agreement and the Purchase
Agreements;
"COMPLETION ACCOUNTS": the accounts referred to in CLAUSE 6.1.1,
prepared in accordance with SCHEDULE 6;
"CONDITION": the condition referred to in CLAUSE 2.1;
"CONFIDENTIAL
INFORMATION": all information received or obtained by the
Vendor or supplied to the Vendor in the
negotiations leading to this Agreement and which
relates to TCC or any of its subsidiaries;
"CONNECTED PERSON": a person connected with any of the Sellers or the
Directors (or any former director of any Group
Company) within the meaning of section 839, TA
88;
"CONTAMINATED LAND
PROVISIONS": means Section 57 and Schedule 22 paragraph 162
respectively of the Environment Act 1995 and all
notices, codes of practice, guidance notes and
all subordinate legislation made under the above
statutory provisions;
"COPYRIGHT": copyright, design rights, topography rights and
database rights, whether or not the same are
registered or unregistered (including any
applications for registration of any such thing),
and rights under licences and consents in
relation to any such thing) and any similar or
analogous rights to any of the foregoing whether
arising or granted under the law of England or of
any other jurisdiction;
"DEED OF CONTRIBUTION": the deed of contribution in the agreed terms to
be entered into at Completion between the
Purchaser, TCC and the Sellers;
"DEED OF TAX
COVENANT": the deed in the agreed terms to be entered into
at Completion between the Vendor and the
Purchaser containing taxation covenants and
indemnities in respect of each Group Company;
"DIRECTORS": the directors of the Group Companies named as
such in SCHEDULE 2;
"DISCLOSED": fairly disclosed by the Disclosure Documents and
"Disclosure" shall be construed accordingly;
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"DISCLOSURE DOCUMENTS": the Disclosure Letter and the two identical
bundles of documents collated by or on behalf of
the Vendor, the outside covers of each of which
have been signed for identification by or on
behalf of the Vendor and the Purchaser;
"DISCLOSURE LETTER": the letter described as such of even date
herewith addressed by the Vendor to the
Purchaser;
"EARN-OUT AGREEMENT": the agreement in the agreed terms to be entered
in at Completion between TCC, the Purchaser and
the Vendor relating to the EOLN and the Earn Out
Shares and conduct of the business and affairs of
the Purchaser;
"EARN OUT SHARES": the 4,500 ordinary shares of 10 pence each in the
capital of the Purchaser which may be the subject
of options pursuant to the Scheme in favour of
certain of the employees of the Group, following
Completion and which may be purchased by the
Purchaser pursuant to the Earn-Out Agreement;
"ENCUMBRANCE": any interest or equity of any person (including
any right to acquire, option or right of
pre-emption) or any mortgage, charge, pledge,
lien, assignment, hypothecation, security
interest, title retention or any other security
agreement or arrangement;
"ENVIRONMENT": any and all organisms (including without
limitation man and his senses), ecological
systems, property and the following media: air
(including without limitation, the air within
buildings and the air within other natural or
man-made structures made whether above or below
ground); water (including without limitation,
water under or within land or in drains or sewers
and coastal and inland waters); and land
(including without limitation, land under water);
"ENVIRONMENTAL
AGREEMENTS": any and all leases or licences or other
agreements which are binding upon any of the
Group Companies but only to the extent that they
relate, either wholly or in part, to the
protection of the Environment, and/or the
prevention of Harm or Damage;
"ENVIRONMENTAL
INDEMNITY": means the covenant in respect of Environmental
Losses in CLAUSE 12;
"ENVIRONMENTAL LAWS": any and all laws including European
Community or European Union regulations,
directives and decisions; statutes and
subordinate legislation; regulations, orders,
ordinances, Permits, codes of practice,
circulars, guidance notes and the like; common
law, local laws and bylaws; judgments, notices,
orders, directions, instructions or awards of any
Competent
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Authority applicable to any Group Company, the
Property and/or the Further Property and/or
conduct of the Business and which have as a
purpose or effect the protection of the
Environment, and/or prevention of Harm or Damage
and/or the provision of remedies in respect of
Harm or Damage;
"ENVIRONMENTAL
LIABILITY": liability (including liability in respect of
Remedial Action) on the part of any Group Company
and/or any of their directors or officers or
shareholders under Environmental Laws;
"ENVIRONMENTAL LOSS": means any and all losses, damages and liabilities
(including without limitation, consequential
loss, loss of profits, fines, penalties, Remedial
Action costs), and reasonably incurred costs and
expenses (including without limitation legal and
other professional fees) suffered by the
Beneficiaries under Environmental Laws and
arising out of any Environmental Matter;
"ENVIRONMENTAL
MATTERS": means any and all events, states of affairs,
conditions, circumstances, activities, practices,
incidences or actions which have occurred or are
occurring or have been or are in existence in,
at, on, under or about either the Property and or
Further Properties or in or about the conduct of
the Business at any time;
"ENVIRONMENTAL
WARRANTIES:" the warranties set out in PARAGRAPH 9 of SCHEDULE
5;
"EOLN": the loan note to be issued by the Purchaser to
the Vendor by way of further consideration for
the Shares purchased from the Vendor, in
accordance with the terms of the Earn Out
Agreement;
"ERA": the Employment Rights Act 1996;
"EXHIBITS": the exhibits referred to in this Agreement and
signed for the purposes of identification by or
on behalf of each party;
"FA": Finance Act;
"FINANCIAL YEAR": a financial year within the meaning ascribed to
such expression by section 223, CA 85;
"FURTHER PROPERTIES": means any and all land or property, other than
the Properties, owned or occupied at any time by
any one or more of the Companies;
"GAAP": Accounting Standards, the legal principles set
out in schedules 4 and 4A to CA 85, rulings and
abstracts of the urgent issues task force of the
ASB and guidelines, conventions, rules and
procedures of accounting practice in the United
Kingdom
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which are regarded as permissible by the ASB in
each case as generally accepted by the
accountancy profession;
"GROUP": together the Companies and each of the
Subsidiaries;
"GROUP COMPANY": any of the Companies or any of the Subsidiaries;
"HARM OR DAMAGE": harm or damage to, or other interference with,
the Environment;
"HAZARDOUS MATTER": any and all matter (whether alone or in
combination with other matter) which may or is
liable to cause Harm or Damage;
"HOLDING COMPANY": a holding company within the meaning ascribed to
such expression by sections 736 and 736A, CA 85;
"INDEMNITIES": the indemnities given by the Vendor in CLAUSE 9
and the Environmental Indemnity;
"INTELLECTUAL
PROPERTY": Patent Rights, Know How, Copyright, Trade Marks,
Software and IP Materials;
"INTELLECTUAL
PROPERTY
AGREEMENTS": material agreements or arrangements relating to
Intellectual Property owned, used or exploited by
any Group Company to which a Group Company is a
party;
"IP MATERIALS": all documents, records, tapes, discs, diskettes
and any other materials whatsoever containing
Copyright works, Know How or Software;
"ITA": the Inheritance Tax Act 1984;
"KNOW HOW": trade secrets and confidential business
information including details of supply
arrangements, customer lists and pricing policy;
sales targets, sales statistics, market share
statistics, marketing surveys and reports;
marketing research; unpatented technical and
other information including inventions,
discoveries, processes and procedures, ideas,
concepts, formulae, specifications, procedures
for experiments and tests and results of
experimentation and testing; information
comprised in Software; together with all common
law or statutory rights protecting the same
including by any action for breach of confidence
and any similar or analogous rights to any of the
foregoing whether arising or granted under the
law of England or any other jurisdiction;
"LOSSES": actions, proceedings, losses, damages,
liabilities, claims, costs and expenses including
legal and other professional fees;
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"MANAGEMENT ACCOUNTS": the management accounts for each Group Company
for the period from 1 April 1997 to 30 September
1997, a copy of each of which is contained in
EXHIBIT B;
"NET ASSETS": in relation to the Group, its consolidated fixed
assets plus its consolidated current assets less
its consolidated liabilities as set out in the
Completion Accounts;
"NFHC AGREEMENT": the agreement in the agreed terms to be entered
into at Completion between the Purchaser and
those Sellers holding shares in New Focus Health
Care Limited relating to the sale and purchase of
those Shares;
"NON-COMPETITION
AGREEMENTS": the agreements in the agreed terms to be entered
into at Completion between the Purchaser and the
Sellers relating to the protection of the
goodwill of the Business;
"PATENTS": the patents listed in SCHEDULE 4;
"PATENT LICENCE": the licence in the agreed terms to be entered
into at Completion between the CooperVision Inc.
and the Patent Owners relating to the Patents;
"PATENT OWNERS": Anthony Galley, Geoffrey Galley, Albert Morland,
Ivor Atkinson and Barrie Bevis;
"PATENT RIGHTS": patent applications or patents, author
certificates, inventor certificates, utility
certificates, improvement patents and models and
certificates of addition including any divisions,
renewals, continuations, refilings,
confirmations-in-part, substitutions,
registrations, confirmations, additions,
extensions or reissues thereof and any similar or
analogous rights to any of the foregoing whether
arising or granted under the law of England or
any other jurisdiction;
"PENSION SCHEMES": agreements or arrangements (whether legally
enforceable or not) for the payment of any
pensions, allowances, lump sums or other like
benefits on retirement or on death or during
periods of sickness or disablement for the
benefit of any present or former director,
officer or employee of any of the Group Companies
or for the benefit of the dependants of any such
persons;
"PERMITS": any and all licences, consents, permits,
authorisations or the like, made or issued
pursuant to or under, or required by,
Environmental Laws in relation to the carrying on
of the Business at the Property;
"PROCEEDINGS": any proceeding, suit or action arising out of or
in connection with this Agreement or the Deed of
Tax Covenant;
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"PROPERTIES": the properties of which short particulars are set
out in SCHEDULE 3 and the expression "Property"
shall mean, where the context so admits, any one
or more of such properties and any part or parts
thereof;
"PURCHASE AGREEMENTS": together the NFHC Agreement, the AVC Agreement,
the CLT Agreement and the AVI Agreement;
"PURCHASE NOTES": the loan notes in the agreed terms to be issued
to the Sellers at Completion by the Purchaser and
guaranteed by TCC;
"PURCHASER'S GROUP": the Purchaser and its Affiliates;
"PURCHASER'S
SOLICITORS": Cameron McKenna of Mitre House, 160 Aldersgate
Street, London EC1A 4DD;
"REGISTERED
INTELLECTUAL
PROPERTY": such of the Intellectual Property used or
exploited by any Group Company as is (a) licenced
to or (b) registered in any public registry as
being owned by a Group Company;
"REMEDIAL ACTION": (a) preventing, limiting, removing, remedying,
cleaning-up, abating, containing or ameliorating
the presence or effect of any Hazardous Matter in
the Environment (including without limitation the
Environment at the Property and/or at the Further
Property) or (b) carrying out investigative work
and obtaining legal and other professional advice
as is reasonably required in relation to (a);
"RTPA": Restrictive Trade Practices Act 1976;
"SCHEME": the unapproved share option scheme to be adopted
by the Purchaser, as exhibited to the Earn-Out
Agreement;
"SELLERS": the persons whose names and details are set out
in COLUMN (1) of SCHEDULE 1;
"SERVICE AGREEMENTS": the service agreements to be entered into between
Aspect Vision Care Limited and each of the
Vendor, R. Poole, I. Atkinson, B. Bevis, M.
Kelly, W. Brooker, I. McDermott, F. Lambertini
and G. Grassi;
"SERVICE DOCUMENT": a writ, summons, order, judgment or other
document relating to or in connection with any
Proceedings;
"SHARE CHARGE": the charge over the shares in the Purchaser held
by TCC to be granted by TCC to the Vendor in the
agreed terms;
"SHARES": the shares or, in respect of Aspect Vision Italia
s.r.l., the quotas in the capitals of each of the
Companies set out in COLUMN (2) of SCHEDULE 1;
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"SOFTWARE": any and all computer programs in both source and
object code form, including all modules, routines
and sub-routines thereof and all source and other
preparatory materials, relating thereto including
user requirements, functional specifications and
programming specifications, ideas, principles,
programming languages, algorithms, flow charts,
logic, logic diagrams, orthographic
representations, file structures, coding sheets,
coding and including any manuals or other
documentation relating thereto and computer
generated works;
"SSAP": a statement of standard accounting practice or
financial reporting standard in force at the date
hereof as issued by the Institute of Chartered
Accountants in England and Wales and adopted by
the ASB as an Accounting Standard;
"STOCK EXCHANGE": London Stock Exchange Limited;
"SUBORDINATION
AGREEMENT": the subordination agreement in the agreed terms
to be entered into at Completion between TCC,
Keybank National Association and the holders of
the Purchase Notes;
"SUBSIDIARY": a subsidiary within the meaning ascribed to such
expression by sections 736 and 736A, CA 85;
"SUBSIDIARY
UNDERTAKING": a subsidiary undertaking within the meaning
ascribed to such expression by section 258, CA
85;
"SUBSIDIARIES": the subsidiaries of Aspect Vision Care Limited
details of which are set out in PART 2 of
SCHEDULE 2;
"TA 88": the Income and Corporation Taxes Act 1988;
"TAXATION": (a) all forms of taxation excluding business
rates but including and without any limitation
any charge, tax, duty, levy, impost, withholding
or liability wherever chargeable imposed for
support of national, state, federal, municipal or
local government or any other person and whether
of the UK or any other jurisdiction; and
(b) any penalty, fine, surcharge, interest,
charges or costs payable in connection with any
taxation within (a) above;
"TAXATION AUTHORITY": the Inland Revenue, Customs & Excise, Department
of Social Security and any other, governmental,
or other authority whatsoever competent to impose
any Taxation whether in the United Kingdom or
elsewhere;
"TAXATION STATUTE": any directive, statute, enactment, law or
regulation wheresoever enacted or issued, coming
into force or entered into providing for or
imposing any Taxation and shall include orders,
regulations, instruments, bye-laws or other
subordinate
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legislation made under the relevant statute or
statutory provision and any directive, statute,
enactment, law, order, regulation or provision
which amends, extends, consolidates or replaces
the same or which has been amended, extended,
consolidated or replaced by the same;
"TAX WARRANTIES": the warranties set out in PART 2 of SCHEDULE 5;
"TCC STOCK OPTIONS": the options over shares of TCC common stock to be
issued by TCC to those persons listed in SCHEDULE
10 in accordance with CLAUSE 10;
"TCGA": the Taxation of Chargeable Gains Act 1992;
"TMA": the Taxes Management Act 1970;
"TRADE MARKS": trade or service mark applications or registered
trade or service marks, registered protected
designations of origin, registered protected
geographic origins, refilings, renewals or
reissues thereof, unregistered trade or service
marks, get up and company names in each case with
any and all associated goodwill and all rights or
forms of protection of a similar or analogous
nature including rights which protect goodwill
whether arising or granted under the law of
England or of any other jurisdiction;
"TRADE UNION": as defined in section 1, TULRCA;
"TULRCA": the Trade Union and Labour Relations
(Consolidation) Act 1992;
"TUPE": the Transfer of Undertakings (Protection of
Employment) Regulations 1981;
"UNREGISTERED
INTELLECTUAL PROPERTY": Intellectual Property owned, licensed, used or
exploited by any Group Company other than
Registered Intellectual Property;
"VAT": value added tax;
"VATA": the Value Added Tax Act 1994;
"VENDOR'S SOLICITORS": Travers Smith Braithwaite of 10, Snow Hill,
London EC1A 2AL;
"WARRANTIES": the warranties set out in CLAUSE 7 and SCHEDULE
5; and
"IN THE AGREED TERMS": in the form agreed between the Vendor and the
Purchaser and signed for the purposes of
identification by or on behalf of each party.
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1.2 The table of contents and headings in this Agreement are inserted for
convenience only and shall not affect its construction.
1.3 Unless the context otherwise requires words denoting the singular shall
include the plural and vice versa, references to any gender shall include
all other genders and references to persons shall include bodies
corporate, unincorporated associations and partnerships in each case
whether or not having a separate legal personality. References to the word
"include" or "including" are to be construed without limitation.
1.4 References to recitals, schedules and clauses are to recitals and
schedules to and clauses of this Agreement unless otherwise specified and
references within a schedule to paragraphs are to paragraphs of that
schedule unless otherwise specified.
1.5 References in this Agreement to any statute, statutory provision or EC
Directive include a reference to that statute, statutory provision or EC
Directive as amended, extended, consolidated or replaced from time to time
(whether before or after the date of this Agreement) and include any
order, regulation, instrument or other subordinate legislation made under
the relevant statute, statutory provision or EC Directive and any such
references in the Warranties shall be deemed to include, as regards Aspect
Vision Italia s.r.l., that which most approximates them in Italy.
1.6 References to any English legal term for any action, remedy, method of
judicial proceeding, legal document, legal status, court, official or any
legal concept or thing shall in respect of any jurisdiction other than
England be deemed to include that which most approximates in that
jurisdiction to the English legal term.
1.7 Any reference to "writing" or "written" includes faxes and any
non-transitory form of visible reproduction of words.
1.8 References to times of the day are to London time and references to a day
are to a period of 24 hours running from midnight to midnight.
2. CONDITION
2.1 Condition precedent
Subject to CLAUSE 2.3, this Agreement is subject to and conditional upon
the Vendor receiving from the Board of Inland Revenue clearances under
section 138 TCGA and under section 707 TA on terms reasonably satisfactory
to him.
2.2 Time limit for satisfaction of Condition
2.2.1 If the condition in CLAUSE 2.1 has not been fulfilled or waived (by
mutual agreement of the parties) by 31 December 1997 (or by such
later date as may be agreed in writing between the parties) this
Agreement shall thereupon become null and void at initio and none
of the parties shall have any rights against any other party
hereunder.
2.2.2 The Vendor shall notify the Purchaser, TCC and the Purchaser's
Solicitor in writing forthwith upon satisfaction of the Condition.
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2.3 Operations provisions
Notwithstanding CLAUSE 2.1, CLAUSES 14 - 17 (inclusive), 18 (other than
CLAUSE 18.2) and 19 - 25 (inclusive) shall come into force on the
execution and exchange of this Agreement and the remainder of the
Agreement shall come into force on the fulfilment and/or waiver of the
Condition.
3. SALE AND PURCHASE
3.1 Obligation to sell and purchase
Subject to the terms of this Agreement the Vendor shall use all reasonable
endeavours to procure that each of the Sellers shall, with effect from 1
November 1997, sell those Shares set opposite his name in COLUMN (2) of
SCHEDULE 1 and the Purchaser shall purchase such interests in the same
together with all rights attaching thereto with effect from 1 November
1997.
3.2 Dividends and distributions
From Completion the Purchaser shall be entitled to receive all dividends
and distributions declared, paid or made by any of the Companies in
respect of the Shares on or after 1 November 1997.
3.3 Sale of all Shares
The Purchaser shall not be obliged to complete the purchase of any of the
Shares unless the purchase of all the Shares is completed simultaneously.
4. CONSIDERATION
4.1 Consideration
The consideration for the Shares shall be as set out in the Purchase
Agreements and shall be:
4.1.1 in part payable in cash;
4.1.2 in part satisfied by the issue of the Purchase Notes but subject to
adjustment as provided in CLAUSE 6.2; and
4.1.3 the right for the Vendor to be issued the EOLN in accordance with
the terms of the Earn Out Agreement.
4.2 Entitlement to consideration
The consideration, other than the right to the EOLN which shall be for the
Vendor, shall be allocated such that the Cash Consideration and the
Purchase Notes shall belong or, as the case may be, be issued to the
Sellers in the proportions set out in the Purchase Agreements.
4.3 Reduction in consideration
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Any payment made by the Vendor in respect of a breach of any Warranties
or payment made under the Indemnities or the Deed of Tax Covenant, or any
other payment made pursuant to this Agreement, shall be and shall be
deemed to be pro tanto a reduction in the price paid for the Shares under
this Agreement.
4.4 Guarantee of Purchase Notes
TCC agrees to guarantee the obligations of the Purchaser in respect of the
Purchase Notes on the terms set out in the Purchase Notes.
5. COMPLETION
5.1 Time and location
Subject as provided in CLAUSE 5.5, Completion shall take place at the
offices of the Purchaser's Solicitors on the fifth Business Day following
satisfaction or waiver of the condition or such other date as may be
agreed in writing between the Purchaser and the Vendor.
5.2 Vendor's obligations
At Completion:-
5.2.1 the Vendor shall deliver to the Purchaser each of the documents
listed in PART 1 of SCHEDULE 7;
5.2.2 the Vendor shall use all reasonable endeavours to procure that all
necessary steps are taken properly to effect the matters listed in
PART 2 of SCHEDULE 7.
5.3 Purchaser's obligations
Subject to the Vendor complying with his obligations under CLAUSE 5.2, the
Purchaser shall at Completion deliver the documents and effect the actions
listed in PART 3 of SCHEDULE 7.
5.4 TCC's obligations
Subject to the Vendor complying with his obligations under CLAUSE 5.2, TCC
shall at Completion deliver the documents and effect the actions listed in
PART 4 of SCHEDULE 7.
5.5 Failure to comply
If in any respect material to the Purchaser the provisions of CLAUSE 5.2
and PARTS 1 and 2 of SCHEDULE 7 or if in any respect material to the
Vendor the provisions of CLAUSES 5.3 and 5.4 and PARTS 3 and 4 of SCHEDULE
7 are not complied with on the date of Completion referred to under CLAUSE
5.1, the Purchaser or, as the case may be, the Vendor shall not be obliged
to complete this Agreement and may:-
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5.5.1 defer Completion to a date not more than twenty-eight days after
the date set by CLAUSE 5.1 (and so that the provisions of this
CLAUSE 5.5 shall apply to Completion as so deferred); or
5.5.2 proceed to Completion so far as practicable and without prejudice
to their rights under this Agreement; or
5.5.3 rescind this Agreement without prejudice to their rights and
remedies under this Agreement; or
5.5.4 waive all or any of the requirements contained in CLAUSE 5.2 or, as
the case may be, CLAUSES 5.3 and 5.4, at their discretion.
6. COMPLETION ACCOUNTS
6.1 Preparation of Completion Accounts
6.1.1 The Vendor shall procure that accounts are prepared by the Auditors
for the Group as at the close of business on 31 October 1997 and
that a draft of such accounts is submitted to the Purchaser for
review within 75 days after Completion. The Vendor shall be
entitled to submit amendments to the draft accounts to the
Purchaser at any time prior to the later of 150 days from
Completion and the agreement of such accounts with the Purchaser.
The Purchaser shall be entitled to not less than 30 days to
consider any amendments to the draft accounts submitted by the
Vendor.
6.1.2 If the Vendor shall fail to procure the preparation of Completion
Accounts in accordance with CLAUSE 6.1.1 the Purchaser may procure
the same at the Vendor's expense.
6.1.3 The Completion Accounts shall be prepared in accordance with the
principles set out in SCHEDULE 6.
6.1.4 Unless within 60 days after receipt of the Completion Accounts
pursuant to CLAUSE 6.1.1 the Purchaser notifies the Vendor in
writing of any disagreement or difference of opinion relating to
the Completion Accounts, the parties shall be deemed to have
accepted such accounts as accurate but without prejudice to any
claim which the Purchaser may have against the Vendor in respect of
any breach of the Warranties or any other provisions of this
Agreement.
6.1.5 If within the period of 60 days referred to in CLAUSE 6.1.4 the
Purchaser notifies the Vendor of any disagreement or difference of
opinion relating to the Completion Accounts ("Notice of
Disagreement") and if they are able to resolve such disagreement or
difference of opinion within 30 days of the date of the Notice of
Disagreement, the parties shall be deemed to have accepted the
Completion Accounts as accurate but without prejudice to any claim
which the Purchaser may have against the Vendor in respect of any
breach of the Warranties or any other provision of this Agreement.
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6.1.6 If the Vendor and the Purchaser are unable to reach agreement
within 30 days of the date of the Notice of Disagreement, the
matter in dispute shall be referred to the decision of an
independent chartered accountant (the "Independent Accountant") to
be appointed (in default of nomination by agreement between the
Vendor and the Purchaser) by the President for the time being of
the Institute of Chartered Accountants in England and Wales.
6.1.7 The Independent Accountant shall act as an expert and not as an
arbitrator, the Arbitration Acts 1950 and 1979 shall not apply and
his decision on the matter in dispute shall (in the absence of
manifest error) be final and binding on the Vendor and the
Purchaser. The costs of the Independent Accountant shall be
apportioned between the Vendor and the Purchaser as the Independent
Accountant shall decide but each party shall be responsible for its
own costs of presenting its case to the Independent Accountant.
6.2 Adjustment of consideration
The consideration payable by the Purchaser to each Seller shall be
adjusted after Completion in accordance with the following provisions of
this CLAUSE 6.2 such that:
6.2.1 subject to CLAUSE 6.2.2, if the Net Assets are less than 'L'6
million but more than 'L'5.5 million the Vendor shall, subject
to CLAUSE 10, pay to the Purchaser the amount of the deficiency
below 'L'6 million; but
6.2.2 if the Net Assets are less than 'L'5.5 million the Vendor
shall, subject to CLAUSE 10, pay to the Purchaser the sum of
'L'500,000 plus an amount ascertained by multiplying the
deficiency below 'L'5.5 million by two and the provisions of
CLAUSE 6.2.1 shall not apply.
6.3 Any amount due to the Purchaser from the Vendor pursuant to CLAUSE 6.2
shall be paid in accordance with CLAUSE 10.
7. WARRANTIES
7.1 Extent of Warranties
In consideration of the Purchaser agreeing to purchase the Shares on the
terms contained in this Agreement, the Vendor hereby:-
7.1.1 in relation to each Group Company warrants, represents and
undertakes to the Purchaser, in the terms set out in SCHEDULE 5;
and
7.1.2 undertakes to the Purchaser that upon becoming aware of the
occurrence or the impending or threatened occurrence or
non-occurrence of any matter, event or circumstance (including any
omission to act) which he knows would or might reasonably be
expected to cause or constitute a breach of any of the Warranties
or which he knows would or might give rise to a claim under the
Deed of Tax Covenant he will promptly give written notice of such
matter, event or circumstance to the Purchaser.
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7.2 Obligation to make enquiries
Where any of the Warranties referred to in COLUMN (2) of SCHEDULE 12 are
made or given "so far as the Vendor is aware", such Warranties shall be
deemed to be given to the best of the knowledge, information and belief of
the Vendor after making due and careful enquiries of the Sellers and Glen
Carroll.
7.3 Investigation by Purchaser
None of the Warranties or the Indemnities or the Deed of Tax Covenant
shall be deemed in any way modified or discharged by reason of any
investigation or inquiry made by or on behalf of the Purchaser, and no
information relating to any Group Company of which the Purchaser has
knowledge (actual or constructive) other than by reason of its being
Disclosed shall prejudice any claim which the Purchaser shall be entitled
to bring or shall operate to reduce any amount recoverable by the
Purchaser under this Agreement.
7.4 Information supplied by the Group Companies
7.4.1 Subject to CLAUSES 7.4.2, any information supplied by or on behalf
of any Group Company (or by any officer, employee or agent of any
of them) to the Vendor or his advisers in connection with the
Warranties, the Indemnities, the Deed of Tax Covenant or the
information Disclosed shall not constitute a warranty,
representation or guarantee as to the accuracy of such information
in favour of the Vendor and the Vendor hereby undertakes to the
Purchaser to waive any and all claims which he might otherwise have
against any Group Company or against any officer, employee or agent
of any of them in respect of such claims but so that this shall not
preclude the Vendor from claiming against any Seller under any
right of contribution or indemnity to which he may be entitled.
7.4.2 Nothing contained in CLAUSE 7.4.1 shall preclude any action against
any adviser to any Group Company to the extent that such action
shall not result in any liability for any Group Company.
7.5 Separate and independent warranties
Each of the Warranties set out in the separate paragraphs of SCHEDULE 5
shall be separate and independent and save as expressly otherwise provided
shall not be limited by reference to any other such Warranty.
7.6 Reliance
The Purchaser has entered into this Agreement and the Purchase Agreements
upon the basis of and in reliance upon the Warranties and the Indemnities
and the same together with any provision of this Agreement or the Deed of
Tax Covenant which shall not have been fully performed at Completion shall
remain in force notwithstanding that Completion shall have taken place.
8. LIMITATION OF VENDOR'S LIABILITY
8.1 Limitations on liability
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The liability of the Vendor in respect of any claim under the Warranties,
the Indemnities and the Deed of Tax Covenant shall be limited as provided
in SCHEDULE 8 but so that the limitations on the liability of the Vendor
under this CLAUSE 8.1 and SCHEDULE 8 shall not apply in relation to the
Warranties set out in PARAGRAPH 2.4.1 of SCHEDULE 5.
8.2 Exclusions from CLAUSE 8
Notwithstanding any other provision of this Agreement, the provisions of
this CLAUSE 8 and SCHEDULE 8 shall not apply to any claim made against the
Vendor in the case of any fraudulent misrepresentation or dishonest act or
omission by or on behalf of the Vendor as against the Purchaser.
8.3 Other operative provisions
The provisions of SCHEDULE 8 shall have immediate effect.
9. INDEMNITIES
9.1 The Vendor undertakes to indemnify and keep the Purchaser indemnified from
and against and in respect of and to pay on demand to the Purchaser an
amount equivalent to:-
9.1.1 all Losses incurred by the Purchaser or any Group Company prior to
the fifth anniversary of Completion in relation to or arising from
any breach or alleged breach prior to Completion by any Group
Company of the patents held by Allergan, Inc. (such Losses not to
include any Losses resulting from any decision to continue any
process after Completion);
9.1.2 all Losses incurred by any Group Company or the Purchaser prior to
the second anniversary of Completion in relation to claims by any
employees of any Group Company in respect of their cessation of
employment prior to Completion but only to the extent such Losses
exceed (pound)25,000; and
9.1.3 all Losses incurred by or arising from any Group Company or the
Purchaser prior to the second anniversary of Completion, including
any revenues lost by any Group Company, as a result of or arising
from any material breach or alleged material breach prior to
Completion by a Group Company of any OEM Agreement.
9.2 Any sum payable by the Vendor pursuant to this CLAUSE 9 shall be paid free
and clear of any deduction or withholding whatsoever, save only as may be
required by law.
9.3 If any deduction or withholding is required by law to be made from any
payment by the Vendor pursuant to this CLAUSE 9 or if the Purchaser is
subject to Taxation in respect of such payment the Vendor shall increase
the amount of the payment by such additional amount as is necessary to
ensure that the net amount received and retained by the Purchaser (after
taking account of all deductions or withholdings or Taxation) is equal to
the amount which it would have received and retained had the payment in
question not been subject to any deductions or withholdings or Taxation.
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10. SET OFF
10.1 In the event that the Purchaser has any claim against the Vendor pursuant
to the Net Asset adjustment mechanism in CLAUSE 6.2 ("Net Asset Claim"),
the Warranties, the Indemnities or the Deed of Tax Covenant (a "Claim"),
all or part of the Claim Amount shall be divided amongst the Sellers in
the Agreed Proportions or, in respect of a Net Asset Claim, pro rata to
the aggregate of the Cash Consideration and the Purchase Notes received by
each Seller for the Shares, and shall be satisfied in the following
order:-
10.1.1 firstly, the Claim Amount shall be set off against the Purchase
Notes in the Agreed Proportions or, in respect of a Net Asset
Claim, pro rata to the aggregate of the Cash Consideration and the
Purchase Notes received by each Seller for the Shares, and the
amounts (whether of principal, interest or otherwise) outstanding
under the Purchase Notes shall reduce and be cancelled accordingly
and in accordance with the terms of the Purchase Notes;
10.1.2 secondly, if a Purchase Note held by any Seller has been repaid or
has been reduced to zero by operation of CLAUSE 10.1.1, the balance
of that Seller's Agreed Proportion of the Claim Amount shall be
deducted from that Seller's share of the First Option Price or, if
that has already been paid or reduced to zero, the Second Option
Price (as each such term is defined in the Earn Out Agreement), or,
in the case of the Vendor, from the EOLN and retained by the
Purchaser; and
10.1.3 to the extent set-off is not available for any reason, the balance
of any Seller's Agreed Proportion of the Claim Amount shall be
payable in cash by the Vendor.
10.2 For the purposes of CLAUSE 10.1, a "Claim Amount" shall mean, in relation
to any Claim:-
10.2.1 the amount which is agreed by the Vendor; or
10.2.2 the amount which shall have been adjudged at first instance by a
court of competent jurisdiction to be payable by the Vendor to the
Purchaser.
11. TCC STOCK OPTIONS, THE SCHEME AND A TCC UNDERTAKING
11.1 Subjectto CLAUSE 11.2, TCC agree to use all reasonable endeavours
following Completion to procure that The Cooper Companies, Inc. 1988 Long
Term Incentive Plan (the "TCC Plan") is amended so as to enable United
Kingdom employees and full time directors of the Group to be granted
options over TCC common stock which have been approved under Schedule 9 to
the Income and Corporation Taxes Act 1988 ("ICTA"), by the United Kingdom
Board of Inland Revenue ("Approved Options").
11.2 The parties agree that:
11.2.1 if the amendments required to the TCC Plan referred to in CLAUSE
11.1 require the approval of the holders of TCC common stock then
TCC shall not be obliged to seek such approval of such stockholders
and CLAUSE 11.1 shall not apply; and
11.2.2 all costs of TCC (up to a maximum of 'L'3,000) in seeking to
make and in effecting any amendment of the TCC Plan pursuant to
CLAUSE 11.1 shall be borne by the
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Vendor and the Vendor hereby agrees to fully indemnify TCC and keep
TCC fully indemnified against all such costs.
11.3 TCC agrees that on the execution and exchange of this Agreement it shall
procure the grant to each of the persons listed in COLUMN 1 of PART A of
SCHEDULE 10 of such number of options over TCC common stock as are set
against their respective names in COLUMN 2 of PART A of SCHEDULE 10. The
exercise of any such options shall be conditional on Completion.
11.4 TCC agrees that within 30 days of approval being given (if given) by the
Board of Inland Revenue to the TCC Plan pursuant to CLAUSE 11.1 it shall
procure the grant to each of the persons listed in COLUMN 1 of PART B of
SCHEDULE 10 of such number of options over TCC common stock as are set
against their respective names in COLUMN 2 of PART B of SCHEDULE 10 of
which the maximum number permissible under paragraph 28 of schedule 9 to
ICTA shall be Approved Options.
11.5 If the TCC Plan shall not be amended pursuant to CLAUSE 11.1, whether
because approval of TCC stockholders would be required or because the
United Kingdom Inland Revenue refuses to grant approval of the amendments
or otherwise, then TCC shall, as soon as reasonably practicable, grant to
each of the persons listed in COLUMN 1 of PART B of SCHEDULE 10 such
number of options over TCC common stock as are set against their
respective names in COLUMN 2 of PART B of SCHEDULE 10.
11.6 Subject always to the rules of the TCC Plan, all options granted pursuant
to CLAUSES 11.3 to 11.5 shall have an exercise price per share of TCC
common stock equivalent to the average of the high and low selling price
of TCC common stock on the New York Stock Exchange ("Market Price") on the
last trading day prior to the execution and exchange of this Agreement or
in the case of the Approved Options, an exercise price per share
determined by reference to such other method of calculating the Market
Value of TCC common stock at their date of grant as the Board of Inland
Revenue may allow.
TCC agrees that, following Completion, it shall grant options over TCC
common stock, up to the maximum number of options set out in PART C of
SCHEDULE 11, to such employees of the Group as the Vendor may direct in
writing. The options granted pursuant to this CLAUSE 11.7 shall have an
exercise price which is the Market Price on the last trading day prior to
the date of grant. The options shall be granted by TCC within 30 days of a
written request from the Vendor.
11.7 The Purchaser agrees to grant, as soon as reasonably practicable following
Completion, options over the Earn-Out Shares pursuant to the Scheme to
such of the employees of the Group and in such numbers as the Vendor
shall, at any time within the three month period following Completion,
direct.
11.8 The Purchaser and TCC agree to use all reasonable endeavours to procure
that any Sellers who have given personal guarantees in respect of the
Group Companies shall be released from such personal guarantees and,
pending the obtaining of such releases, the Purchaser and TCC agree to
indemnify and keep indemnified such Sellers from and against all
liabilities in respect of such guarantees.
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12. ENVIRONMENTAL INDEMNITY
12.1 The Vendor undertakes to indemnify the Purchaser, for and on behalf of
itself and as trustee for each of the Beneficiaries, and keep the
Beneficiaries indemnified from and against and in respect of and to pay on
demand to the Purchaser (acting as aforesaid) an amount equal to:-
12.1.1 half of any Environmental Loss to the extent that such
Environmental Loss arises under any Environmental Law which is
enacted after the date hereof (in respect of which the parties
hereby acknowledge that the Contaminated Land Provisions were
enacted before the date of this Agreement);
12.1.2 half of any cost incurred by the Purchaser or any Group Company in
relation to the Purchaser or any Group Company complying with a
direction from a Competent Authority to undertake Remedial Action
in relation to the land adjacent to the temporary car park at the
Hamble Properties identified in the Dames & Moore reports to the
Purchaser as being contaminated. Provided that no such claim shall
be made in circumstances where the said direction of the Competent
Authority arises out of any proposed change of use of the said
land;
12.1.3 the costs of removing asbestos and/or asbestos containing materials
from any buildings at or on the Thermoking Property;
12.1.4 any Losses which result from a failure by the Purchaser or any
Group Company to obtain a Permit in respect of the discharge of
wastewater from the Properties at Hamble referred to in the Dames &
Moore reports to the Purchaser; and
12.1.5 any Environmental Losses incurred by any Group Company or the
Purchaser where the Environmental Matter has arisen as a result of
ground contamination of gravels by hydrocarbons leaking from the
storage tank at the Thermoking Property that has been identified by
Dames & Moore in a report to the Purchaser PROVIDED ALWAYS THAT the
Purchaser shall not voluntarily notify any environmental authority
(save where it is legally obliged to do so or is acting in the
ordinary course of business) of any matter which could give rise to
a claim against the Vendor under this CLAUSE 12.1.4.
12.2 Any sum payable by the Vendor pursuant to this CLAUSE 12 shall be paid
free and clear of any deduction or withholding whatsoever, save only as
may be required by law.
12.3 If any deduction or withholding is required by law to be made from any
payment by the Vendor pursuant to this CLAUSE 12 or if the Purchaser is
subject to Taxation in respect of such payment the Vendor shall increase
the amount of the payment by such additional amount as is necessary to
ensure that the net amount received and retained by the Purchaser (after
taking account of all deductions or withholdings or Taxation) is equal to
the amount which it would have received and retained had the payment in
question not been subject to any deductions or withholdings or Taxation.
13. RTPA
13.1 If there is any provision of this Agreement, or of any agreement or
arrangement of which this Agreement forms part, which causes or would
cause this Agreement or that agreement or
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<PAGE>
arrangement to be subject to registration under the RTPA, then that
provision shall not take effect until the day after particulars of this
Agreement or of that agreement or arrangement (as the case may be) have
been furnished to the Director General of Fair Trading pursuant to section
24, RTPA.
13.2 The Purchaser shall furnish such particulars as are referred to in CLAUSE
13.1 as soon as is reasonably practicable after the date of this Agreement
and within the time limits specified in the RTPA and the Vendor undertakes
to provide such information and assistance as the Purchaser may reasonably
require in connection therewith.
14. ANNOUNCEMENTS
14.1 Restrictions on announcements
No announcement shall be made in relation to the subject matter of this
Agreement or a matter ancillary to this Agreement without the prior
written consent of the other party save as may be required by any:-
14.1.1 law;
14.1.2 existing contractual arrangements; or
14.1.3 the Stock Exchange or the Panel on Takeovers and Mergers or any
other applicable regulatory authority to which the Sellers are
subject where such requirement has the force of law,
provided such communication shall be made only after consultation with the
Purchaser.
14.2 Continuing effect
The restrictions contained in this clause shall continue to apply after
Completion without limit in time.
14.3 Legal and regulatory requirements
The Purchaser and the Vendor undertake to provide all such information
known to him or it as may reasonably be required by the Vendor or the
Purchaser, as the case may be, for the purpose of complying with the
requirements of law or of any applicable regulatory authority to which
either party is subject where such requirement has the force of law.
15. ASSIGNMENT
15.1 No party may assign the benefit of this Agreement whether absolutely or by
way of security except in the case of an absolute assignment of all or
part by the Purchaser to an Affiliate of the Purchaser and provided and so
long as it remains an Affiliate (failing which the benefit of this
Agreement shall no longer be available to such assignee nor to any
assignor) save that the Purchaser may assign such benefit absolutely or by
way of security to a person other than an Affiliate of the Purchaser with
the prior consent in writing of the Vendor such consent not to
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be unreasonably withheld or delayed and any purported assignment in
contravention of this clause shall be ineffective.
15.2 Subject to CLAUSE 15.1, this Agreement shall be binding upon and enure for
the benefit of the personal representatives and assigns and successors in
title of each of the parties.
16. REMEDIES CUMULATIVE
16.1 The rights, powers and remedies provided in this Agreement or expressly
referred to herein are cumulative and do not exclude any rights, powers or
remedies provided by law or by any other document other than this
Agreement.
16.2 Nothing in this Agreement, the Deed of Tax Covenant, the Disclosure
Documents or in any document in the agreed terms shall be read or
construed as excluding any liability or remedy as a result of fraud.
16.3 Nothing in this Agreement shall entitle the Purchaser to rescind this
Agreement.
17. WAIVER, VARIATION AND RELEASE
17.1 No omission to exercise or delay in exercising on the part of any party to
this Agreement any right, power or remedy provided by law or under this
Agreement shall constitute a waiver of such right, power or remedy or any
other right, power or remedy or impair such right, power or remedy. No
single or partial exercise of any such right, power or remedy shall
preclude or impair any other or further exercise thereof or the exercise
of any other right, power or remedy provided by law or under this
Agreement.
17.2 Any waiver of any right, power or remedy under this Agreement must be in
writing and may be given subject to any conditions thought fit by the
grantor. Unless otherwise expressly stated any waiver shall be effective
only in the instance and only for the purpose for which it is given.
17.3 No variation to this Agreement shall be of any effect unless it is agreed
in writing and signed by or on behalf of each party.
18. COSTS AND EXPENSE
18.1 General
Save as otherwise stated in this Agreement, each party shall pay its own
costs and expenses in relation to the negotiation, preparation, execution
and carrying into effect of this Agreement and other agreements forming
part of the transaction.
18.2 TCC's contribution
TCC shall contribute 'L'50,000, including VAT, towards the legal costs
and expenses of the Vendor.
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18.3 Group Companies to pay no costs
For the avoidance of doubt, no Group Company shall pay any legal or other
professional charges and expenses in connection with any investigation of
the affairs of the Group or the negotiation, preparation, execution and
carrying into effect of this Agreement or any other agreement forming part
of the transaction.
19. NOTICES
19.1 Any communication to be given in connection with the matters contemplated
by this Agreement shall except where expressly provided otherwise be in
writing and shall either be delivered by hand or sent by first class
pre-paid post or sent by air mail. Delivery by courier shall be regarded
as delivery by hand.
19.2 Such communication shall be sent to the address of the relevant party
referred to in this Agreement or to such other address as may previously
have been communicated to the other party in accordance with this clause.
Each communication shall be marked for the attention of the relevant
person.
19.3 A communication shall be deemed to have been served:-
19.3.1 if delivered by hand at the address referred to in CLAUSE 19.2, at
the time of delivery;
19.3.2 if sent by first class pre-paid post to the address referred to in
CLAUSE 19.2, at the expiration of two clear days after the time of
posting; and
19.3.3 if sent by air mail to the address referred to in CLAUSE 19.2, at
the expiration of five clear days after posting.
If a communication would otherwise be deemed to have been delivered
outside of normal business hours (being 9:30 a.m. to 5:30 p.m. on a
Business Day) in the time zone of the territory of the recipient under the
preceding provisions of this clause, it shall be deemed to have been
delivered at the opening of business on the next Business Day.
19.4 In proving service of the communication, it shall be sufficient to show
that delivery by hand was made or that the envelope containing the
communication was properly addressed and posted as a first class pre-paid
letter or air mail letter.
19.5 A party may notify the other parties to this Agreement of a change to its
name, relevant person or address for the purposes of CLAUSE 19.1 PROVIDED
THAT such notification shall only be effective on:-
19.5.1 the date specified in the notification as the date on which the
change is to take place; or
19.5.2 if no date is specified or the date specified is less than five
clear Business Days after the date on which notice is deemed to
have been served, the date falling five clear Business Days after
notice of any such change is deemed to have been given.
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<PAGE>
19.6 For the avoidance of doubt, the parties agree that the provisions of this
clause shall not apply in relation to the service of Service Documents.
20. COUNTERPARTS
20.1 This Agreement may be executed in any number of counterparts and by the
parties on different counterparts, but shall not be effective until each
party has executed at least one counterpart.
20.2 Each counterpart shall constitute an original of this Agreement but all
the counterparts shall together constitute one and the same Agreement.
21. LANGUAGE
21.1 This Agreement is drawn up in the English language and if this Agreement
is translated into any language other than English, the English language
text shall prevail.
21.2 Each notice, instrument, certificate or other communication to be given by
one party to another hereunder or in connection with this Agreement shall
be in the English language (being the language of negotiation of this
Agreement) and in the event that such notice, instrument, certificate or
other communication or this Agreement is translated into any other
language, the English language text shall prevail.
22. INVALIDITY
Each of the provisions of this Agreement is severable. If any such
provision is or becomes illegal, invalid or unenforceable in any respect
under the law of any jurisdiction, the legality, validity or
enforceability in that jurisdiction of the remaining provisions of this
Agreement of that provision or any other provision of this Agreement,
shall not in any way be affected or impaired thereby.
23. AGREEMENT TO CONTINUE IN FULL FORCE AND EFFECT
This Agreement shall, to the extent that it remains to be performed,
continue in full force and effect notwithstanding Completion.
24. CONFIDENTIALITY
24.1 The Vendor hereby undertakes with the Purchaser that it shall both during
and after the term of this Agreement keep confidential and not directly or
indirectly reveal, report, publish, disclose or transfer or use for his
own or any other purposes Confidential Information except:-
24.1.1 in the circumstances set out in CLAUSE 24.2; or
24.1.2 to the extent otherwise expressly permitted by this Agreement; or
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<PAGE>
24.1.3 with the prior consent in writing of the party to whose affairs
such Confidential Information relates. The circumstances referred
to in CLAUSE 24.1.1 above are:-
24.2.1 where the Confidential Information, before it is furnished to or
comes into the knowledge or possession of the Vendor, is in the
public domain; or
24.2.2 where the Confidential Information, after it is furnished to or
comes into the knowledge or possession of the Vendor enters the
public domain otherwise than as a result of (a) a breach by the
Vendor of its obligations in this CLAUSE 24 or (b) a breach by the
person who disclosed that Confidential Information of his
confidentiality obligation and the Vendor is aware of such breach;
or
24.2.3 if and to the extent the Vendor makes disclosure of the
Confidential Information to any person:
(a) in compliance with any requirement of law; or
(b) in response to a requirement of the Stock Exchange or the Panel
on Take-overs and Mergers or any other applicable Competent
Authority to which the Vendor is subject where such requirement
has the force of law; or
(c) in order to obtain tax or other clearances or consents from the
Inland Revenue or other relevant taxing or regulatory
authorities; or
24.2.4 to the consultants and professional advisers of the Vendor, in each
case on the basis that they will comply with the Vendor's
obligations of confidence hereunder,
PROVIDED THAT any such information disclosable pursuant to CLAUSES 24.2.3
(A), (B) OR (C) shall be disclosed to the extent permitted by law and only
after consultation with the other party.
24.3 The restrictions contained in this clause shall continue to apply after
the Completion without limit in time.
25. GOVERNING LAW AND JURISDICTION
25.1 English law
This Agreement shall be governed by and construed in accordance with
English law.
25.2 Courts of England and Wales
The parties to this Agreement irrevocably agree that the courts of England
shall have the non-exclusive jurisdiction to settle any dispute which may
arise out of or in connection with this Agreement and that accordingly any
Proceedings may be brought in such courts.
25.3 Acceptance by Vendor and Purchaser
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<PAGE>
For the avoidance of doubt, the Vendor and the Purchaser expressly and
specifically agree and accept the terms of this clause and signs below in
recognition of this fact.
AS WITNESS the hands of the parties or their duly authorised representatives on
the date first appearing at the head of this Agreement.
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<PAGE>
SCHEDULE 1
THE SELLERS
PART 1 - ASPECT VISION CARE LIMITED
(1) (2)
Name address and fax number (if any) Number of Shares
John De Carle 200,899
Clive De Carle 66,966
Ian McDermott 105,233
Ron Poole 105,233
Barrie Bevis 60,421
Ivor Atkinson 15,105
PART 2 - NEW FOCUS HEALTH CARE LIMITED
(1) (2)
Name address and fax number (if any) Number of Shares
Geoffrey Galley 221,303
Anthony Galley 261,302
Trevor Brooker 208,303
Brooker Family Trust 33,000
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<PAGE>
PART 3 - CONTACT LENS TECHNOLOGIES LIMITED
(1) (2)
Name address and fax number (if any) Number of Shares
Geoffrey Galley 200
Norma Galley 200
Anthony Galley 350
Barrie Bevis 200
Ivor Atkinson 25
Mike Kelly 25
PART 4 - ASPECT VISION ITALIA s.r.l.
(1) (2)
Name address and fax number (if any) Value of Quotas (Lire)
Giacomi Grassi 177,687,000
Fabrizio Lambertini 11,464,000
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<PAGE>
SCHEDULE 2
PART 1 - THE COMPANIES
Name: NEW FOCUS HEALTHCARE LIMITED
Date and place of 12 September 1984
incorporation: England and Wales
Registered number: 1847802
Registered office: Unit 2, South Point, Hamble, Southampton,
Hampshire, SO31 4RF
Authorised share capital: 'L'30,000 divided into 500,000 ordinary shares of
1p each, 900,000 convertible redeemable preferred
ordinary shares of 1p each 1,600,000 preferred
ordinary shares of 1p each
Issued share capital: 'L'7,239.08
Registered and beneficial owner Number and Class
- ------------------------------- ----------------
Geoffrey Harrison Galley 221,303 Ordinary
Anthony David Galley 261,302 Ordinary
Wilfred Trevor Brooker 208,303 Ordinary
Wilfred Trevor Brooker and 33,000 Ordinary
Barbara Joan Brooker as trustees
for the WT Brooker Family
Trust.
Directors: Wilfred Trevor Brooker
Anthony David Galley
Geoffrey Harrison Galley
Secretary: Ian Robert Bussey
Auditor: Leonard Gold Chartered Accountants
Bank: National Westminster Bank plc
Accounting reference date: 31 March
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<PAGE>
Name: CONTACT LENS TECHNOLOGIES LIMITED
Date and place of 14 March 1994
incorporation: England and Wales
Registered number: 02908056
Registered office: Unit 2, South Point, Hamble, Southampton,
Hampshire, SO31 4RF
Authorised share capital: 'L'5,000,000 divided into 5,000,000 ordinary shares
of 'L'1 each
Issued share capital: 'L'1,000
Registered and beneficial owner Number and class
- ------------------------------- ----------------
Geoffrey Harrison Galley 200 Ordinary
Anthony David Galley 350 Ordinary
Barrie Bebis 200 Ordinary
Ivor Atkinson 25 Ordinary
Michael J Kelley 25 Ordinary
Norma Galley 200 Ordinary
Directors: Geoffrey Harrison Galley
Anthony David Galley
Barrie Bevis
Secretary: Ian Robert Bussey
Auditor: Leonard Gold Chartered Accountants
Bank: National Westminster Bank plc
Accounting reference date: 31 March
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<PAGE>
Name: ASPECT VISION CARE LIMITED
Date and place of 17 September 1973
incorporation: England and Wales
Registered number: 01134463
Registered office: Unit 2, South Point, Hamble, Southampton,
Hampshire, SO31 4RF
Authorised share capital: 'L'5,000,000 divided into 5,000,000 ordinary shares
of 'L'1 each
Issued share capital: 'L'1,510,522
Registered and beneficial owner Number and class
- ------------------------------- ----------------
New Focus Healthcare Limited 994,428 Ordinary
J T De Carle 183,048 Ordinary
I A McDermott 97,680 Ordinary
R B Poole 97,680 Ordinary
C T De Carle 62,160 Ordinary
B Bevis 60,421 Ordinary
I Atkinson 15,105 Ordinary
Directors: Barrie Bevis
Wilfred Trevor Brooker
John Trevor De Carle
Anthony David Galley
Geoffrey Harrison Galley
Ian Arthur McDermott
Secretary: Ian Robert Bussey
Auditor: Leonard Gold Chartered Accountants
Bank: National Westminster Bank plc
Accounting reference date: 31 March
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Name: ASPECT VISION ITALIA s.r.l.
Date of incorporation: 15 April 1992
Registered number: 325566
Taxpayer number: 10653750157
Registered office: 27 Via P. Lomazzo, Milan
Capital: Lire 590 million (registered, subscribed and paid)
Capital holders:
Name Value of capital (Lire)
---- -----------------------
Giacomo Grassi 177,687,000
Fabrizio Lambertini 11,464,000
Aspect Vision Care Limited 400,849,000
Directors: Giacorno Grassi
Anthony D Galley
Wilfrid T Brooker
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PART 2 - THE SUBSIDIARIES
Name: FOCUS SOLUTIONS LIMITED
Date and place of 7 May 1987
incorporation: England and Wales
Registered number: 02128972
Registered office: Unit 2, South Point, Hamble, Southampton,
Hampshire, SO31 4RF
Authorised share capital: 'L'100 divided into 100 ordinary shares of 'L'1 each
Issued share capital: 'L'100
Registered and beneficial owner Number and class
- ------------------------------ ----------------
Aspect Vision Care Limited 99 Ordinary
Geoffrey Harrison Galley 1 Ordinary
Directors: Wilfred Trevor Brooker
Anthony David Galley
Geoffrey Harrison Galley
Secretary: Ian Robert Bussey
Auditor: Leonard Gold Chartered Accountants
Bank: N/A
Accounting reference date: 31 March
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<PAGE>
Name: ASPECT SPECIALITY LIMITED
Date and place of 2 March 1988
incorporation: England and Wales
Registered number: 02226443
Registered office: Unit 2, South Point, Hamble, Southampton,
Hampshire, SO31 4RF
Authorised share capital: 'L'5,000,000 divided into 5,000,000 ordinary shares
of 'L'1 each
Issued share capital: 'L'10,000
Registered and beneficial owner Number and class
- ------------------------------ ----------------
Aspect Vision Care Limited 10,000 Ordinary
Directors: Wilfred Trevor Brooker
Anthony David Galley
Geoffrey Harrison Galley
Secretary: Ian Robert Bussey
Auditor: Leonard Gold Chartered Accountants
Bank:
Accounting reference date: 31 March
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Name: AVERLAN COMPANY LIMITED
Date and place of 22 October 1971
incorporation: England and Wales
Registered number: 01028262
Registered office: Unit 5, Eastern Road, Aldershot, Hampshire
Authorised share capital: 'L'62,065 divided into 40,000 A ordinary shares of
'L'1 each and 22,065 B ordinary shares of 'L'1 each
Issued share capital: 'L'57,143 divided into 40,000 A ordinary shares of
'L'1 each and 17,143 B ordinary shares of 'L'1 each
Registered and beneficial owner Number and class
- ------------------------------- ----------------
Aspect Vision Care Limited 40,000 A Ordinary Shares
Aspect Vision Care Limited 17,143 B Ordinary Shares
Directors: Wilfrid Trevor Brooker
Anthony David Galley
Secretary: Anthony David Galley
Auditor: Leonard Gold Chartered Accountants
Bank:
Accounting reference date: 31 March
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Name: ASPECT CONTACT LENSES LIMITED
Date and place of 24th September 1986
incorporation: England and Wales
Registered number: 2057962
Registered office: Unit 2, South Point, Hamble, Southampton,
Hampshire, SO31 4RF
Authorised share capital: 'L'100 divided into 100 ordinary shares of 'L'1 each
Issued share capital: 'L'100
Registered and beneficial owner Number and class
- ------------------------------- ----------------
Aspect Vision Care Limited 99
John De Carle (as nominee 1
for Aspect Vision Care
Limited)
Directors: Ian McDermott
Ron Poole
J de Carle
C de Carle
Secretary: Ian Robert Bussey
Auditor: Leonard Gold Chartered Accountants
Bank: N/A
Accounting reference date: 31 March
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<PAGE>
SCHEDULE 3
PROPERTIES
PART 1 - GENERAL DESCRIPTION
(1) (2) (3) (4)
Title number and
Description of Registered or grade of title
Property Tenure unregistered (if registered)
- ------------- ------ -------------- -----------------
Former Thermo King
Building Freehold Registered HP 359537
Hamble
Unit 1, Southpoint
Industrial Park, Freehold Registered HP 513392
Hamble
Unit 2, Southpoint
Industrial Park, Freehold Registered HP 525215
Hamble
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<PAGE>
PART 2 - LEASES
<TABLE>
<CAPTION>
(1) (2) (3) (4) (5)
Property Date Term Parties Current yearly rent
- -------- ---- ---- ------- --------------------
<S> <C> <C> <C> <C>
Unit 5, Eastern Road 12th January 1983 25 years Gibbswood Builders Limited(1) No details of current rent
Trading Estate, Averlan Company Limited (2)
Aldershott
Unit B, Northbridge 18th June 1992 3 years Hillgate Industrial Estates Ltd(1) No details of current
Road New Focus Health Care Ltd(2) rent
Berkhamsted
Unit 1, River Park 31st August 1995 3 years Jarvis Intercom Limited(1) 'L'40,000 (exclusive of VAT)
Industrial Estate, Aspect Vision Care Ltd(2)
Billitt Lane
Berkhamstead
Via L. Pentimali 46 2 July 1995 1 year Aspect Vision Italia s.r.l.
Roma, Italy Critina Grassi
Via Borgogna 5 7 July 1995 6 years Aspect Vision Italia s.r.l.
Milano Italy Ralari, Spa
</TABLE>
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SCHEDULE 4
A: Granted Patents
- ----------------------------------------------------------------------------
NO. COUNTRY PATENT NO. STATUS
- ----------------------------------------------------------------------------
1. Australia 629280 Granted Patent
- ----------------------------------------------------------------------------
2. Great Britain 2,226,977 A Lapsed and replaced by
European Patent
- ----------------------------------------------------------------------------
3. Singapore 1137/93 Registered European Patent
- ----------------------------------------------------------------------------
4. Europe 0,383,425 Granted Patent Austria,
Belgium, Switzerland,
Liechtenstein, Germany,
Denmark, Spain, France,
Greece, Italy, Luxembourg,
Netherlands, Sweden
- ----------------------------------------------------------------------------
5. Taiwan 39682 Granted Patent
- ----------------------------------------------------------------------------
6. USA 5,087,015 Granted Patent
- ----------------------------------------------------------------------------
B: Patent Applications
- ----------------------------------------------------------------------------
COUNTRY APPLICATION NO. STATUS
- ----------------------------------------------------------------------------
7. Canada 2,007,536 Pending
- ----------------------------------------------------------------------------
8. Japan 3697/90 Pending
- ----------------------------------------------------------------------------
9. S Korea 90355 Pending
- ----------------------------------------------------------------------------
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SCHEDULE 5
THE WARRANTIES
PART 1
1. PRELIMINARY
1.1 Power to contract
The Vendor has full power to enter into and perform this Agreement, the
Deed of Tax Covenant and such other of the documents in the agreed terms
as he is a party to respectively and all such agreements and deeds
constitute binding obligations on the Vendor in accordance with their
terms.
2. THE COMPANY
2 The particulars of each Group Company set out in schedule 2 are true and
complete.
2.2 Memorandum and articles of association
The copies of the memorandum and articles of association of each Group
Company which are comprised in the EXHIBIT C are true and complete in all
respects and have embodied in them or annexed to them a copy of every such
resolution and agreement as is referred to in section 380(4), CA 85 and
each Group Company has at all times carried on its business and affairs in
all respects in accordance with its memorandum and articles of association
and all such resolutions and agreements.
2.3 Statutory returns
Each Group Company has complied with the provisions of the Companies Acts
and all returns, particulars, resolutions and other documents required to
be filed with or delivered to the Registrar of Companies or to any other
authority whatsoever by a Group Company have been correctly and properly
prepared and so filed or delivered.
2.4 Share capital
2.4.1 There is no Encumbrance or any form of agreement (including
conversion rights and rights of pre-emption) on, over or affecting
the Shares being transferred by the Vendor or any unissued shares,
debentures or other securities of any Group Company and there is no
agreement or commitment to give or create any of the foregoing. No
claim has been made by any person to be entitled to any of the
foregoing and no person has the right (exercisable now or in the
future and whether contingent or not) to call for the issue of any
share or loan capital of any Group Company under any of the
foregoing.
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2.4.2 No Group Company has at any time:-
(a) repaid, redeemed or purchased (or agreed to repay, redeem or
purchase) any of its shares, or otherwise reduced (or agreed
to reduce) its issued share capital or any class of it or
capitalised (or agreed to capitalise) in the form of shares,
debentures or other securities or in paying up any amounts
unpaid on any shares, debentures or other securities, any
profits or reserves of any class or description or passed
(or agreed to pass) any resolution to do so; or
(b) directly or indirectly provided any financial assistance for
the purpose of the acquisition of shares in the Company or
any holding company of the Company or for the purpose of
reducing or discharging any liability incurred in such an
acquisition whether pursuant to sections 155 and 156, CA 85
or otherwise.
2.5 Solvency
2.5.1 No Group Company is insolvent or unable to pay its debts
according to section 123, Insolvency Act 1986.
2.5.2 No order has been made or petition presented or resolution
passed for the winding up of any Group Company and no distress,
execution or other process has been levied on any of their
assets. No administrative or other receiver has been appointed
by any person over the business or assets of any Group Company
or any part thereof, nor has any order been made or petition
presented for the appointment of an administrator in respect of
any Group Company.
3. CONNECTED BUSINESS
3.1 Subsidiaries
The particulars of the Subsidiaries set out in PART 2 of SCHEDULE 2
are true and complete and the shares of the Subsidiaries are held and
owned as shown in PART 2 of SCHEDULE 2 free from all Encumbrances and
with all rights now or hereafter attaching thereto.
3.2 Connected transactions
No Group Company:-
3.2.1 is or has agreed to become the holder or other owner of any
class of any shares, debentures or other securities of any
other company (whether incorporated in the United Kingdom or
elsewhere) other than the Subsidiaries;
3.2.2 has agreed to become a subsidiary of any other company or under
the control of any group of companies or consortium;
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3.2.3 is or has agreed to become a member of any partnership, joint
venture, consortium or other unincorporated association other
than a recognised trade association or agreement or arrangement
for sharing commissions or other income;
3.2.4 has a branch, place of business or substantial assets outside
England and Wales or any permanent establishment (as that
expression is defined in any relevant Order in Council made
pursuant to section 788, Taxes Act) in any country outside the
United Kingdom; and
3.2.5 save as otherwise Disclosed pursuant to PARAGRAPHS 3.2.1 TO
3.2.4, has any interest, legal or beneficial, in any shares or
other capital or securities or otherwise howsoever in any other
firm, company, association, venture or legal person or entity.
4. ACCOUNTS
4.1 General
The Accounts:-
4.1.1 were prepared in accordance with the requirements of all
relevant statutes, with good accounting principles and
practices generally accepted at the date hereof in the United
Kingdom (including the Accounting Standards) for companies
carrying on a similar business to that of the Group Companies
and on a basis consistent with preceding accounting periods of
the Group Company concerned and with the books of account of
the Group Company concerned and are true and accurate in all
material respects; and
4.1.2 show a true and fair view of the assets and liabilities of the
relevant Group Company at the Balance Sheet Date and of its
profits for the financial year ended on such date.
4.2 Stock-in-trade and work-in-progress
The basis of valuation for stock-in-trade and work-in-progress has
remained in all material respects consistent with that adopted for
the purpose of the Group's audited accounts of the Group Company
concerned in respect of the beginning and end of each of the
accounting periods of the Group Company for the last three financial
years.
4.3 Profits
The profits of the Group Companies for the three years ended on the
Balance Sheet Date as shown by the Accounts and by the audited
accounts of the Company for previous periods delivered to the
Purchaser and the trend of profits shown by them have not (except as
disclosed in them) been affected to a material extent by
inconsistencies of accounting practices, by the inclusion of
non-recurring items of income or expenditure, by transactions entered
into otherwise than on normal commercial terms or so far as the
Vendor is aware by any other factors rendering such profits for all
or any of such periods exceptionally high or low.
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4.4 Management Accounts
The Management Accounts:-
4.4.1 have been prepared on a proper and consistent basis in
accordance with applicable standards, principles and practices
generally accepted in the United Kingdom and on a basis
consistent with the Accounts; and
4.4.2 without prejudice to the generality of the foregoing, do not
reflect the turnover and the cost of sales of the Group for the
period they cover in a materially inaccurate way.
5. POST-BALANCE SHEET DATE EVENTS
5.1 Since the Balance Sheet Date each Group Company:-
5.1.1 has carried on its business in the ordinary and usual course
and without entering into any transaction, assuming any
liability or making any payment not provided for in the
Accounts which is not in the ordinary course of business and
without any interruption or alteration in the nature, scope or
manner of its business;
5.1.2 has not experienced any material deterioration in its financial
position or, so far as the Vendor is aware, in its prospects or
turnover or, so far as the Vendor is aware, suffered any
diminution of its assets by the wrongful act of any person and
no Group Company has had its business, profitability or
prospects materially and adversely affected by the loss of any
important customer or source of supply or, so far as the Vendor
is aware, by any other factor and, so far as the Vendor is
aware, there are no facts which are likely to give rise to any
such effects;
5.1.3 has not acquired or disposed of or agreed to acquire or dispose
of any assets or assumed or incurred or agreed to assume or
incur any material liabilities (actual or contingent) otherwise
than in the ordinary course of business;
5.1.4 has not declared, made or paid any dividend, bonus or other
distribution of capital or income (whether a qualifying
distribution or otherwise) and (excluding fluctuations in
overdrawn current accounts with bankers) no loan or loan
capital of any Group Company has been repaid in whole or in
part or has become due or is liable to be declared due by
reason of either service of a notice or lapse of time or
otherwise howsoever;
5.1.5 has not made any change to the remuneration, terms of
employment, emoluments or pension benefits of any present or
former director, officer or employee of any Group Company who
on the Balance Sheet Date was entitled to remuneration in
excess of 'L'30,000 per annum and has not appointed or employed
any additional director, officer or employee entitled as
aforesaid;
5.1.6 has not entered into contracts involving capital expenditure in
an amount exceeding 'L'100,000 in the aggregate;
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5.1.7 has not become aware that any event has occurred which would
entitle any third party to terminate any contract or any
benefit enjoyed by it or call in any money before the normal
due date therefor;
5.1.8 has not purchased stocks in quantities or at prices materially
greater than was the practice of the relevant Group Company
prior to the Balance Sheet Date;
5.1.9 where applicable, has paid its creditors within the times
agreed with such creditors and does not have any debts
outstanding which are overdue for payment by more than
four weeks;
5.1.10 has not borrowed or raised any money or taken any financial
facility (except such short term borrowings from bankers as are
within the amount of any overdraft facility which was available
to the relevant Group Company at the Balance Sheet Date) or
since the Balance Sheet Date renegotiated or received any
notice from any banker that such banker wishes to renegotiate
any overdraft facility available to the relevant Group Company
at the Balance Sheet Date;
5.1.11 has not made any change to its accounting reference date and
no accounting period of a Group Company has ended since the
Balance Sheet Date;
5.1.12 (including any class of its members) has not passed any
resolution whether in general meeting or otherwise.
6. TRANSACTIONS WITH THE SELLERS, DIRECTORS AND CONNECTED PERSONS
6.1 Loans and debts
There is not outstanding:-
6.1.1 any indebtedness or other liability (actual or contingent)
owing by any Group Company to any Seller or Director or any
Connected Person or owing to any Group Company by any Seller,
or Director or any Connected Person; or
6.1.2 any guarantee or security for any such indebtedness or
liability as aforesaid.
6.2 Arrangements with Connected Persons
There is not outstanding any agreement, arrangement or
understanding (whether legally enforceable or not) to which any
Group Company is a party and in which any Seller, Director or
former director of any Group Company or any Connected Person is
or has been interested whether directly or indirectly (other
than any form of service agreement).
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6.3 Competitive interests
6.3.1 Neither the Vendor nor, so far as the Vendor is aware, any
Seller, Director, former director of any Group Company nor any
Connected Person, either individually, collectively or with any
other person or persons, has any estate, right or interest,
directly or indirectly, in any business (including, without
prejudice to the generality of the foregoing, Ocular Sciences,
Inc.) other than that now carried on by the Group Company which
is or is likely to be or become competitive with the Business
save as registered holder or other owner of any class of
securities of any company if such class of securities is listed
on any recognised investment exchange (as defined in the
Financial Services Act 1986) and if such person (together with
Connected Persons and Affiliates) holds or is otherwise
interested in less than five per cent of such class.
6.3.2 Neither the Vendor nor, so far as the Vendor is aware, the
other Sellers either individually, collectively or with any
other person or persons are interested in any way whatsoever in
any Intellectual Property used and not wholly owned by the
Company.
7. FINANCE
7.1 Borrowings
The total amount borrowed by any Group Company from any source does
not exceed any limitation on its borrowing contained in the articles
of association of any Group Company concerned or in any debenture or
loan stock trust deed or instrument or any other document executed by
any Group Company concerned and the amount borrowed by each Group
Company from each of its bankers does not exceed the overdraft
facility agreed with such banker. No Group Company has outstanding
loan capital.
7.2 Financial facilities
EXHIBIT D contains full details and true and correct copies of all
documents relating to all debentures, acceptance lines, overdrafts,
loans or other financial facilities outstanding or available to each
Group Company and all Encumbrances to which any asset of any Group
Company is subject. Neither the Seller nor any Group Company has done
anything whereby the continuance of any such facility or Encumbrance
in full force and effect might be affected or prejudiced.
7.3 Grants
Full details of all material grants made to any Group Company in the
last three years have been disclosed. So far as the Vendor is aware
no act or transaction has been effected in consequence whereof any
Group Company is or may be held liable to refund in whole or in part
any grant or loan received by virtue of any statute or in consequence
whereof any such grant or loan for which application has been made by
it will not or may not be paid or will or may be reduced.
7.4 Options and guarantees
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7.4.1 No Group Company is responsible for the indebtedness of any
other person nor party to any option or pre-emption right or
any guarantee, suretyship or any other obligation (whatever
called) to pay, purchase or provide funds (whether by the
advance of money, the purchase of or subscription for shares or
other securities or the purchase of assets or services or
otherwise) for the payment of, or as an indemnity against the
consequence of default in the payment of, any indebtedness of
any other person.
7.4.2 So far as the Vendor is aware no person other than a Group
Company has given any guarantee of or security for any
overdraft, loan or loan facility granted to any other Group
Company.
7.5 Payment of obligations
There has been no material delay by any Group Company in the payment
of any material obligation due for payment.
8. THE PROPERTIES
For the purposes of this paragraph 8 the term "Freehold Properties"
shall mean the freehold properties listed at schedule 3.
8.1 General
8.1.1 The Properties comprise all the land and premises owned,
controlled, used or occupied by the Group and all the rights or
interests vested in the Group relating to any land and premises
at the date hereof and the particulars set out in SCHEDULE 3
are true and accurate and not misleading.
8.1.2 The relevant Group Company has disposed of all its rights,
title and interest in and to any properties (other than the
Properties) and has carried out its obligations in relation to
those properties and the disposal of the rights, title and
interest therein in such a manner as to ensure it has no
liability (whether actual, contingent or otherwise) in relation
thereto.
8.1.3 Each Group Company has in its possession or unconditionally
held to its order all the documents of title and other
documents and papers relating to each of the Properties.
8.1.4 So far as the Vendor is aware, the Freehold Properties, the
title deeds and documentation relating thereto, and all
fixtures and fittings and plant, equipment and other chattels
on the Freehold Properties, are not subject to any Encumbrance
or overriding interest (as defined in section 70, Land
Registration Act 1925) nor is there any person in possession or
occupation of or who has or claims any right of any kind in
respect of any of the Freehold Properties adversely to the
estate, interest, right or title therein of any Group Company.
8.1.5 The Leasehold Properties, the title deeds and documentation
relating thereto, and all fixtures and fittings and plant,
equipment and other chattels on the Leasehold Properties, are
not subject to any Encumbrance or
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overriding interest (as defined in section 70, Land
Registration Act 1925) nor is there any person in possession
or occupation of or who has or claims any right of any kind in
respect of any of the Leasehold Properties adversely to the
estate, interest, right or title therein of any Group Company.
8.1.6 So far as the Vendor is aware, there are no rights, interests,
covenants, restrictions, reservations, licences or easements
nor any disputes or outstanding notices (whether given by a
landlord, a local authority or any other person) nor (without
prejudice to the generality of the foregoing) any other matters
or things which adversely affect the value of any of the
Leasehold Properties or the proper use and enjoyment of any of
the Leasehold Properties.
8.1.7 None of the Properties is subject to the payment of any
outgoings other than the usual rates and taxes and all sums due
to date in respect thereof have been paid.
8.1.8 No proposal relating to the rateable value of any of the
Properties has been determined by the Valuation and Community
Charge Tribunal or Land Tribunal and there is no subsisting
proposal to challenge the rateable value of any of the
Properties.
8.1.9 Each of the Leasehold Properties:-
(a) enjoys access and egress over roads and footpaths which have
been adopted by the appropriate highway authority and are
maintainable at the public expense;
(b) drains foul sewage and surface water to public sewers, is
served by water, electricity, gas and telephone utilities
and either the pipes, sewers, wires, cables, conduits and
other conducting media serving the Properties connect
directly to the mains without passing through land in the
occupation or ownership of any third party; and
(c) has the benefit of all other easements and rights necessary
for its proper use and enjoyment and such easements and
rights are held on terms which do not entitle any person to
terminate or curtail the same.
8.1.10 No Group Company has entered into any commitment (whether
legally binding or not) and no Group Company is a party to any
subsisting agreement with any person or company whereby a fee
(including but not limited to an abort fee) will be paid to
such person or company in respect of the management, use,
development, letting or sale of any of the Leasehold
Properties.
8.1.11 There are no unpaid charges for the construction or adoption
of any road or sewer or other service serving the Leasehold
Property.
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8.2 Planning
8.2.1 There are no lawfully enforceable restrictions or prohibitions
which restrict or prohibit the existing use of any of the
Leasehold Properties.
8.2.2 The existing use of each of the Leasehold Properties is the
permitted use under the Town and Country Planning legislation
(which term includes the Town and Country Planning Act 1990,
the Planning (Listed Buildings and Conservation Areas) Act
1990, the Planning (Hazardous Substances) Act 1990 and the
Planning (Consequential Provisions) Act 1990) and is not a
temporary or personal use.
8.2.3 All development carried out in relation to each of the
Properties has been lawful and all necessary consents and
permissions have been obtained for such development and the
aforesaid do not contain any onerous or unusual conditions.
8.2.4 No Group Company is aware of any resolution, proposal, order or
act made or contemplated for the compulsory acquisition of any
of the Leasehold Properties by the local or any other authority
nor any outstanding order, notice or other requirement of any
such authority that affects the existing use of any of the
Leasehold Properties or involves expenditure in compliance with
it nor any other circumstances which may result in any such
order or notice being made or served or which may otherwise
affect any of the Leasehold Properties.
8.2.5 None of the buildings or other structures or erections on any
of the Leasehold Properties have been listed under section 1,
Planning (Listed Buildings and Conservation Areas) Act 1990
("PLBCA") nor has the relevant local authority authorised the
service of any building preservation notice under section 3,
PLBCA or any repairs notice under section 48, PLBCA in respect
of any of the Leasehold Properties or any building structure or
erection thereon nor has the relevant local authority made or
resolved to make any noise abatement zone order under section
63, Control of Pollution Act 1974 for any of the areas in which
any of the Leasehold Properties are included.
8.2.6 None of the Leasehold Properties is within an area of
archaeological importance nor is any building or erection on
any of the Leasehold Properties a scheduled monument within the
meaning set out in the Ancient Monuments and Archaeological
Areas Act 1979.
8.3 Leasehold Properties
8.3.1 Where any of the Properties is leasehold, particulars of each
lease vested in a Group Company are set out in PART 2 of
SCHEDULE 3 and in relation to each such lease:-
(a) the landlord and all superior landlords had good title to
grant the lease and any superior leases respectively and all
abstracts and epitomes of all superior titles have been
placed with the title deeds to the Property to which the
lease relates;
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(b) any consent necessary for the grant of the lease has been
obtained and a copy of the consent is with the title deeds
to the Property to which the lease relates;
(c) where the current annual rent is not the same as the annual
rent originally reserved in the lease, evidence of its
agreement or determination has been placed with the
documents of title and no rent reviews are or should be
currently under negotiation or the subject of a reference to
an expert or arbitrator or the Courts;
(d) the receipt for the payment of rent which fell due
immediately prior to the date hereof is unqualified;
(e) no notices of breaches of any covenants or conditions
contained in the lease have been given or received on the
part of either the landlord or the relevant Group Company
and the landlord has not refused to accept rent or made any
complaint of breach of covenant;
(f) no alterations, improvements or additions have been made to
the Property to which the lease relates since the grant of
the lease or in respect of all such alterations,
improvements or additions made all necessary consents and
approvals have first been obtained where required;
(g) sections 24 to 28, Landlord and Tenant Act 1954 have not
been excluded; and
(h) no surety has been released either expressly or by
implication.
8.4 Condition and Repair
8.4.1 There are (and there have been) no structural or other defects
in respect of the buildings and structures on or comprising any
of the Properties and all such buildings and structures are in
good and substantial repair and condition.
8.4.2 So far as the Vendor is aware, in respect of the Freehold
Properties there are no latent or patent defects in the
buildings and structures on or comprising the Properties and in
the construction of the buildings and its structures on or
comprising the Properties or any alterations thereto none of
the following materials were used:-
(a) high alumina cement in structural elements;
(b) wood wool slabs in permanent formwork to concrete or in
structural elements;
(c) calcium chloride in admixtures for use in reinforced
concrete;
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(d) asbestos or asbestos containing products as defined in the
Asbestos Regulations 1969 and 1987;
(e) naturally occurring aggregates for use in reinforced
concrete which do not comply with British Standard
Specification 882:1983 and naturally occurring aggregates
for use in concrete which do not comply with the provisions
of British Standard Specification 8110:1985;
(f) urea formaldehyde foam or materials which may release
formaldehyde in quantities which may be hazardous with
reference to the limits set from time to time by the Health
and Safety Executive;
(g) materials which are generally comprised of mineral fibres
either man-made or naturally occurring which have a diameter
of 3 microns or less or which contain fibre not sealed or
otherwise stabilised to ensure that fibre migration is
prevented; or
(h) any other materials not in accordance with good design
standards and good building practice at the time of
construction of any such buildings.
9. ENVIRONMENTAL
9.1 Compliance with Environmental Law
The Property and the Further Property has been used, and the Business
has been conducted, at all times in compliance with Environmental Law
and with the terms and conditions relating to the Environment under
leases and other agreements applicable to the Properties.
9.2 Permits
9.2.1 All Permits have been obtained and have been disclosed to the
Purchaser and are in full force and effect and their terms and
conditions have been complied with. No Permits are limited in
duration or subject to onerous conditions.
9.2.2 No circumstance exists which may or is liable to result to the
detriment of any Group Company in modification, suspension, or
revocation of any Permit or may or is likely to result in any
such Permit not being extended, renewed, granted or (where
necessary) transferred and no Environmental Law currently
adversely affects the use of any of the Properties or the
conduct of the Business.
9.2.3 No work, repairs, remedy, construction, or capital expenditure
is or may be required under any Environmental Law or in order
to carry on lawfully the Business at the Property.
9.3 Hazardous Matter
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No Hazardous Matter has been generated, used, kept, treated,
transported, spilled, deposited, disposed of, discharged, emitted or
otherwise dealt with or managed at, on, under or from any of the
Properties.
9.4 No requirement for Remedial Action
There are no events, states of affairs, conditions, circumstances,
activities, practices, incidents, or actions (including without
limitation the generation, use, treatment, storage, transport,
deposit, disposal, discharge or management of Hazardous Matter) which
have occurred or are occurring or have been or are in existence at,
in, under or about the Property or the Further Property or in or
about the conduct of the Business which may or are liable to give
rise to Environmental Liability including, for the avoidance of
doubt, under the Contaminated Land Provisions.
9.5 No storage tanks
No storage tanks of any kind, including related pipework, are or have
been located at any time whatsoever on or under any of the
Properties.
9.6 Notice of claims
At no time has the any member of the Group had knowledge of and/or
received any notice claim or other communication alleging any actual
or potential Environmental Liability.
10. OTHER ASSETS
10.1 Title
10.1.1 Each Group Company has legal and beneficial title to all
assets of relevant Group Company which are included in the
Accounts or have otherwise been represented as being the
property of relevant Group Company and (except for assets
disposed of or realised by the relevant Group Company in the
ordinary course of business) each Group Company retains such
title to all such assets free from any Encumbrance, hire or
hire purchase agreement or leasing agreement or agreement for
payment on deferred terms and all such assets are in the
possession and control of relevant Group Company and are sited
within the United Kingdom.
10.1.2 No Group Company has acquired or agreed to acquire any
material asset on terms that title to such asset does not pass
to the relevant Group Company until full payment is made.
10.2 Encumbrances
Each Group Company has legal and beneficial title to all assets
which have been acquired by the relevant Group Company since
the Balance Sheet Date and the same are in the possession and
control of the relevant Group Company and none is the subject
of any Encumbrance nor has any Group Company created or agreed
to create any Encumbrance or entered into any factoring
arrangement, hire-purchase, conditional sale or credit sale
agreement and in respect of any such Encumbrance, arrangement
or
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agreement disclosed there has been no default by the relevant
Group Company in the performance or observance of any of the
provisions thereof.
10.3 Condition of assets
The plant and machinery (including fixed plant and machinery) and all
vehicles and office and other equipment shown in the Accounts or
acquired since the Balance Sheet Date or otherwise used in connection
with the Business which have not been disposed of in the ordinary
course of business:-
10.3.1 so far as the Vendor is aware, do not contravene any
requirement or restriction having the force of law;
10.3.2 are in satisfactory repair and condition, fully serviceable
and in satisfactory working order;
10.3.3 are each capable of doing the work for which they were
designed and/or purchased; and
10.3.4 are not surplus to the Group's requirements.
11. INSURANCE
11.1 Extent of insurance
All the assets of each Group Company which are of an insurable nature
are and have at all material times been fully insured to their full
replacement value with a well established and reputable insurer
against fire and all other risks normally insured against by
companies carrying on similar businesses or owning property of a
similar nature to those of the relevant Group Company and each Group
Company is and has at all material times been adequately covered
against all legal liability and risks normally insured against by
such companies (including liability to employees or third parties for
personal injury or loss or damage to property, product liability and
loss of profit).
11.2 Premiums and claims
Particulars of all policies of insurance of each Group Company now in
force are set out in EXHIBIT E and such particulars are true and
correct and all premiums due on such policies have been duly paid and
so far as the Vendor is aware all such policies are valid and in
force. So far as the Vendor is aware there are no circumstances which
might lead to any liability under such insurance being avoided by the
insurers or the premiums being increased. There is no claim
outstanding under any such policies and so far as the Vendor is aware
there are no circumstances likely to give rise to a claim.
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12. LITIGATION
12.1 Litigation and arbitration proceedings
12.1.1 Save as plaintiff in the collection of debts (not exceeding
'L'50,000 in the aggregate) arising in the ordinary course of
business, no Group Company is now engaged in any litigation
or arbitration proceedings and there are no lawsuits or
arbitration proceedings pending or threatened by or, so far as
the Vendor is aware, against any Group Company or any person
for whose acts or defaults any Group Company may be vicariously
liable.
12.1.2 No Group Company has, in the three years prior to the date of
this Agreement been involved in any material litigation,
arbitration or material dispute with any person who is or was a
supplier or customer of importance to the Group or the
Business, or where such litigation, arbitration or dispute
resulted so far as the Vendor is aware in adverse publicity or
loss of goodwill.
12.1.3 So far as the Vendor is aware there is no matter or fact in
existence which might give rise to any legal proceedings or
arbitration involving any Group Company including any which
might form the basis of any criminal prosecution against any
Group Company.
12.2 Injunctions, etc
No injunction or order for specific performance has been granted
against any Group Company within the last three years.
12.3 Orders and judgements
No Group Company is subject to any order or judgment given by any
court or governmental agency which is still in force and has not
given any undertaking to any court or to any third party arising out
of any legal proceedings.
13. LICENCES
13.1 General
So far as the Vendor is aware, each Group Company has all necessary
licences (including statutory licences), permits, consents and
authorities (public and private) for the proper carrying on of the
Business (including for the sale of products into the countries in
which they are sold) and in the manner in which the Business is now
carried on and, so far as the Vendor is aware, all such licences,
permits, consents and authorities are valid and subsisting and the
Vendor knows of no reason why any of them should be suspended,
cancelled or revoked whether in connection with the sale to the
Purchaser or otherwise and so far as the Vendor is aware there are no
factors that might in any way prejudice the continuance or renewal of
any of those licences, permits, consents or authorities and no Group
Company is restricted by contract from carrying on any activity in
any part of the world.
13.2 Financial Services Act
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No Group Company carries on, or purports to carry on, nor have any of
them at any time since 28th April, 1988 carried on, or purported to
carry on, investment business in the United Kingdom within the
meaning of section 3, Financial Services Act 1986 nor has it
contravened any provision of such Act.
13.3 Data Protection Act 1984
Each Group Company has registered or applied to register all
registrable personal data held by it and all due and requisite fees
in respect of the registrations under the Data Protection Act 1984
have been paid. The details contained in such registrations or
applications to register are correct, proper and suitable for the
purpose(s) for which the relevant Group Company holds or uses the
personal data which are the subject of such registrations or
applications to register, and the contents of all such registrations
or applications to register have been made available to the
Purchaser. All personal data held by each Group Company has been held
in accordance with the data protection principles and there has been
no unauthorised disclosure of personal data held by any Group
Company. There are no outstanding enforcement, deregistration or
transfer prohibition notices or any other nature of notice under the
Data Protection Act 1984 currently outstanding against any Group
Company, nor is there any outstanding appeal against such notices nor
is any Group Company aware of any circumstances which may give rise
to the giving of any such notices to any Group Company. There are no
unsatisfied requests to any Group Company made by data subjects in
respect of personal data held by any Group Company, nor any
outstanding applications for rectification or erasure of personal
data. There are no outstanding claims for compensation for
inaccuracy, loss or unauthorised disclosure of personal data nor is
any personal data held by any Group Company inaccurate nor has any
Group Company lost or made any unauthorised disclosure of any such
data. Without prejudice to the specific provisions above, each Group
Company and its employees have complied in all respects with the
requirements of the Data Protection Act 1984. The Company has/has not
registered or applied for a registration as a computer bureau.
14. TRADING
14.1 Tenders, etc
No offer, tender or the like is outstanding (the value of which to
any Group Company could exceed 'L'50,000 in any year) which is
capable of being converted into an obligation of any Group Company by
an acceptance or other act of some other person.
14.2 Delegation of powers
There are in force no powers of attorney given by any Group Company
other than to the holder of an encumbrance solely to facilitate its
enforcement nor any other authority (express, implied or ostensible)
given by any Group Company to any person to enter into any contract
or commitment or do anything on its behalf other than any authority
of employees to enter into routine trading contracts in the normal
course of their duties.
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14.3 Consequence of acquisition of Shares by Purchaser
The acquisition of the Shares by the Purchaser or compliance with the
terms of this Agreement will not:-
14.3.1 so far as the Vendor is aware, cause any Group Company to lose
the benefit of any right or privilege it presently enjoys or
cause any person who normally does business with the Group not
to continue to do so on the same basis as previously;
14.3.2 so far as the Vendor is aware, relieve any person of any
obligation to any Group Company (whether contractual or
otherwise) or legally entitle any person to determine any such
obligation or any right or benefit enjoyed by any Group Company
or to exercise any right whether under an agreement with or
otherwise in respect of any Group Company;
14.3.3 conflict with or result in the breach of or constitute a
default under any of the terms, conditions or provisions of any
material agreement or instrument to which any Group Company is
now a party or any loan to or mortgage created by any Group
Company or of its memorandum or articles of association;
14.3.4 result in any present or future indebtedness of any Group
Company becoming due and payable or capable of being declared
due and payable prior to its stated maturity;
14.3.5 so far as the Vendor is aware, cause any director, officer or
senior employee of any Group Company to leave employment;
14.3.6 so far as the Vendor is aware, conflict with, violate or
result in a breach of any law, regulation, order, decree or
writ applicable to any Group Company, or entitle any person to
receive from any Group Company any finder's fee, brokerage or
other commission; or
14.3.7 cause the payment of or give rise to any liability to pay any
commission, royalty, success fee, procurement fee or any
similar remuneration by any Group Company to any director,
employee or shareholder of any Group Company or to any
Connected Person;
and so far as the Vendor is aware (without having made any enquiry of
them) the attitude or actions of clients, customers and suppliers
with regard to each Group Company will not be prejudicially affected
thereby.
14.4 Guarantees and warranties
No Group Company has given any guarantee or warranty or made any
representation in respect of articles or trading stock, sold or
contracted to be sold by it, save for any warranty or guarantee
implied by law and (save as aforesaid) has not accepted any liability
or obligation to service, maintain, repair, take back or otherwise do
or not do anything in respect of any articles or stock that would
apply after any such article or stock has been delivered by it.
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14.5 Fair trading, etc.
So far as the Vendor is aware, no Group Company is or has been party
to or directly or indirectly concerned in any agreement, arrangement,
understanding or practice (whether or not legally binding) or in the
pursuit of any course of conduct which is:-
14.5.1 registrable under the RTPA or capable of giving rise to an
investigation by the Director-General of Fair Trading or a
reference to the Monopolies and Mergers Commission;
14.5.2 in contravention or breach of The Treaty of Rome 1957, the
Fair Trading Act 1973, the Consumer Credit Act 1974, the Resale
Prices Act 1976, the Trade Descriptions Acts 1968, the RTPA,
the Competition Act 1980, the Consumer Protection Act 1988, or
any regulations, orders, notices or directions made thereunder;
or
14.5.3 is otherwise registrable, unenforceable or void or renders the
relevant Group Company or any of its officers liable to
administrative, civil or criminal proceedings under any
anti-trust, trade regulation or similar legislation in any
jurisdiction where the relevant Group Company carries on
business.
14.6 Restrictions on trading
No Group Company is or has been a party to any agreement,
arrangement, understanding or practice restricting the freedom of the
relevant Group Company to provide and take goods and services by such
means and from and to such persons and into or from such place as it
may from time to time think fit.
14.7 Possession of records
14.7.1 All title deeds and agreements to which each Group Company is
a party and all other documents owned by, or which ought to be
in the possession of, or held unconditionally to the order, of
each Group Company are in the possession of the relevant Group
Company.
14.7.2 No Group Company has any of its records, systems, controls,
data or information recorded, stored, maintained, operated or
otherwise wholly or partly dependent on or held by any means
(including any electronic, mechanical or photographic process
whether computerised or not) which (including all means of
access thereto and therefrom) are not under the exclusive
ownership and direct control of the relevant Group Company.
14.8 Business names
No Group Company uses on its letterhead, books or vehicles or
otherwise carry on the Business under any name other than its
corporate name.
14.9 Unlawful acts
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No Group Company nor, so far as the Vendor is aware, any of their
officers have been prosecuted for any criminal, illegal or unlawful
act connected with the relevant Group Company.
14.10 Sensitive payments
So far as the Vendor is aware, no officer or employee of any Group
Company has made or received any Sensitive Payment in connection with
any contract or otherwise. For the purposes of this clause the
expression "Sensitive Payments" (whether or not illegal) shall
include (i) commercial bribes, bribes or kickbacks paid to any
person, firm or company including central or local government
officials or employees or (ii) amounts received with an understanding
that rebates or refunds will be made in contravention of the laws of
any jurisdiction either directly or through a third party or (iii)
political contributions or (iv) payments or commitments (whether made
in the form of commissions, payments or fees for goods received or
otherwise) made with the understanding or under circumstances that
would indicate that all or part thereof is to be paid by the
recipient to central or local government officials or as a commercial
bribe influence payment or kickback.
15. CONTRACTS
15.1 Onerous contracts
There are no long term contracts (i.e. contracts not terminable by
the relevant Group Company without penalty on six months' notice or
less) or onerous or unusual or abnormal contracts (i.e. contracts for
capital commitments or contracts outside the ordinary course of
business) binding upon any Group Company.
15.2 Material contracts
Lists of all contracts to which each Group Company is a party with a
value in excess of 'L'100,000 are set out in EXHIBIT F and no Group
Company is a party to or subject to any agreement, transaction,
obligation, commitment, understanding, arrangement or liability
which:-
15.2.1 so far as the Vendor is aware, is incapable of complete
performance in accordance with its terms within six months
after the date on which it was entered into or undertaken;
15.2.2 is known by the Vendor or by the relevant Group Company to be
likely to result in a loss to the relevant Group Company on
completion of performance;
15.2.3 so far as the Vendor is aware, cannot readily be fulfilled or
performed by the relevant Group Company on time and without
undue or unusual expenditure of money and effort;
15.2.4 requires an aggregate consideration payable by the relevant
Group Company in excess of 'L'25,000;
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15.2.5 involves or is likely to involve the supply of goods by or to
the relevant Group Company the aggregate sales value of which
will represent in excess of five per cent of the turnover of
the relevant Group Company for the year ended on the Balance
Sheet Date;
15.2.6 so far as the Vendor is aware, requires the relevant Group
Company to pay any commission, finder's fee, royalty or the
like;
15.2.7 is in any way otherwise than in the ordinary and proper course
of the relevant Group Company's business.
15.3 Performance of contracts
15.3.1 The terms of all material contracts of each Group Company have
been complied with by each Group Company and so far as the
Vendor is aware by the other parties to the contracts in all
material respects and, so far as the Vendor is aware, there are
no circumstances likely to give rise to a default by any Group
Company or by the other parties under any such contract.
15.3.2 There are no outstanding claims, separately or in the
aggregate, of material amounts, against any Group Company on
the part of customers or other parties in respect of defects in
quality or delays in delivery or completion of contracts or
deficiencies of design or performance or otherwise relating to
liability for goods or services sold or supplied by any Group
Company and, so far as the Vendor is aware, no such claims are
threatened or anticipated and, so far as the Vendor is aware,
there is no matter or fact in existence in relation to goods or
services currently sold or supplied by any Group Company which
might give rise to the same.
15.3.4 No Group Company has any knowledge of the invalidity of or
grounds for rescission, avoidance or repudiation of any
agreement or other transaction to which the relevant Group
Company is a party and has received no notice of any intention
to terminate, repudiate or disclaim any such agreement or other
transaction.
15.4 Agreements as to pricing
15.4.1 All agreements or arrangements between any Group Company and
any customer as regards the pricing of products sold by a Group
Company are set out in writing and there have been no
variations or changes to such agreements or arrangements other
than as evidenced in writing.
15.4.2 There are no agreements or arrangements pursuant to which any
Group Company has agreed to provide finished contact lenses to
a customer at a price payable by the customer to the Group
Company of less than 'L'1.15 per lens.
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15.5 Agency and distribution agreements
No Group Company is a party to any subsisting agency or
distributorship agreement.
16. EMPLOYEES
16.1 Particulars of employees
The particulars shown in the schedule of employees comprised in
EXHIBIT G are true and complete and show in respect of each Director,
officer and employee of each Group Company his date of birth, the
date on which he commenced continuous employment with the relevant
Group Company for the purposes of the EPCA and all remuneration
payable and other benefits provided or which the relevant Group
Company is bound to provide (whether now or in the future) to each
such person and include full particulars of all remuneration
arrangements (particularly profit sharing, incentive and bonus
arrangements to which the relevant Group Company is a party whether
binding or not) and each Director, officer and employee of each Group
Company is listed therein.
16.2 Service contracts
There is no contract of service in force between any Group Company
and any of its Directors, officers or employees which is not
terminable by the relevant Group Company without compensation (other
than any compensation payable pursuant to statute) on three month's
notice given at any time. There are no consultancy or management
services agreements in existence between any Group Company and any
other person, firm or company, and no Trade Union is recognised by
any Group Company.
16.3 Benefits
There are no amounts owing by any Group Company to any of its present
or former directors, officers or employees other than not more than
one month's arrears of remuneration accrued or due or for
reimbursement of business expenses incurred within a period of three
months preceding the date hereof.
16.4 Liabilities and payments
Save to the extent (if any) to which provision or allowance has been
made in the Accounts:-
16.4.1 no liability has been incurred or is anticipated by any Group
Company for breach of any contract of employment or for
services or for severance payments or for redundancy payments
or protective awards or for compensation for unfair dismissal
or for failure to comply with any order for the reinstatement
or re-engagement of any employee or for sex or race
discrimination or for any other liability accruing from the
termination or variation of any contract of employment or for
services;
16.4.2 no gratuitous payment has been made or promised by any Group
Company in connection with the actual or proposed termination,
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suspension or variation of any contract of employment or for
services of any present or former director, officer or any
dependent of any present or former director, officer or
employee of any Group Company; and
16.4.3 no Group Company has made or agreed to make any payment to or
provided or agreed to provide any benefit for any present or
former director, officer or employee of the relevant Group
Company or any of their dependants.
16.5 Relevant legislation
So far as the Vendor is aware, each Group Company has in relation to
each of its employees (and so far as relevant to each of its former
employees) complied in all material respects with all obligations
imposed on it by all relevant statutes, regulations and all relevant
orders and awards made thereunder and has maintained adequate records
regarding the service, terms and conditions of employment of each of
its employees.
16.6 Termination of employment
No present director, officer or employee of any Group Company has
given or received notice terminating his employment except as
expressly contemplated under this Agreement and Completion of this
Agreement will not entitle any employee to terminate his employment
and/or trigger any entitlement to a severance payment or liquidated
damages.
16.7 Share and other schemes
No Group Company has in existence nor has it promised to introduce
any employee share trust, share incentive scheme, share option scheme
or profit sharing scheme, other than the Scheme, for the benefit of
all or any of its present or former directors, officers or employees
or any of such persons dependants or any scheme whereunder any
present or former director, officer or employee of any Group Company
is entitled to a commission or remuneration of any other sort
calculated by reference to the whole or part of the turnover, profits
or sales of any Group Company or any other person, firm or company
including (without limitation) any profit related pay scheme
established under Chapter III, Part V, Taxes Act.
16.8 Disputes and claims
16.8.1 No dispute exists between any Group Company and a material
number of its employees.
16.8.2 No Group Company has had during the last three year any
strike, work stoppages or work-to-rule by its employees or
lock-out, nor, so far as the Vendor is aware, is any
anticipated, which has caused, or is likely to cause, any Group
Company to be materially incapable of carrying on its business
in the normal and ordinary course.
16.9 Transfer of undertakings
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No Group Company has within the period of 1 year immediately
preceding the date hereof been a party to relevant transfer as
defined in TUPE.
17. PENSION SCHEMES
17.1 Personal pension schemes
There are set out in EXHIBIT H a list of members of the Aspect Vision
Care Limited group personal pension scheme together with the rate of
employer contribution payable in respect of each member, a note of
the eligibility criteria for membership and a sample copy invitation
to employees to join. Other than as set out in EXHIBIT H, no Group
Company has any obligation to contribute to any personal pension
scheme (as defined in section 630 of the Taxes Act). All employer
contributions have been paid by their due date and there are no
contributions payable but outstanding.
17.2 Other pension schemes
Other than as referred to in WARRANTY 17.1, the Aspect Pension Scheme
No. 2 and the Averlan Pension Fund (the "Pension Schemes") (full
particulars of which are contained in EXHIBIT I), no Group Company is
or has been a party to any agreement or arrangement for the provision
of pensions, allowances, lump sums or other like benefits on
retirement, death or long-term ill health for the benefit of any
current or former employee (or the dependants of such persons) nor
has any Group Company provided or promised to provide any ex-gratia
pensions, lump sums or like benefits for any current or former
employee or their dependants. In respect of any employee who is
covered for lump sum death benefits under any disclosed life
assurance arrangement, that benefit is fully insured with an
insurance company of good repute on normal terms and all premiums
payable have been paid.
17.3 Statutory compliance
So far as the Vendor is aware, the Pension Schemes have at all times
and in all respects complied with the provisions of all relevant UK
statutes, regulations and requirements, all benefits under the Scheme
are provided on a money purchase basis and there is no obligation
upon any Group Company to make any further payments to the Pension
Schemes other than as disclosed.
17.4 Proceedings
So far as the Vendors is aware, there are no claims or actions in
progress or pending, nor any reason for such claims or actions, in
respect of any pension arrangement.
18. INTELLECTUAL PROPERTY
18.1 Ownership and rights
18.1.1 EXHIBIT J lists all Registered Intellectual Property.
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18.1.2 Each Group Company is the sole beneficial owner of such
Intellectual Property as is attributed to it in EXHIBIT J save
where it is expressed in EXHIBIT J that such is not the case.
18.1.3 Each Group Company owns all such Intellectual Property as is
necessary for the development, manufacture, marketing and sale
of its products or services or in relation to any of the
processes employed in the Business at the date of this
Agreement.
18.1.4 None of the Intellectual Property owned, used or exploited by
any Group Company has been charged, mortgaged, licensed or
otherwise encumbered.
18.2 Enforcement
18.2.1 The Intellectual Property owned, used or otherwise exploited
by each Group Company is valid and subsisting and, so far as
the Vendor is aware, none of the Registered Intellectual
Property is the subject of outstanding or threatened disputes,
claims or proceedings for cancellation, revocation, opposition,
interference, rectification or contested ownership.
18.2.2 Registered Intellectual Property has been maintained and all
renewal fees have been paid on time.
18.2.3 The Know-How owned, used or exploited by each Group Company
has been kept secret and confidential and has not been
disclosed to third parties except in the ordinary course of
business.
18.2.4 No Group Company has taken any action likely to diminish the
reputation of unregistered Trade Marks, owned, used or
otherwise exploited by any Group Company.
18.3 Intellectual Property Agreements
18.3.1 EXHIBIT K lists all Intellectual Property Agreements.
18.3.2 So far as the Vendor is aware, all Intellectual Property
Agreements are valid and binding and none has been the subject
of any breach or default by any party or of any event which
with notice or lapse of time or both would constitute a
default.
18.3.3 So far as the Vendor is aware, there are no disputes, claims
or proceedings arising out of or relating to the Intellectual
Property Agreements.
18.3.4 No Group Company has authorised or otherwise permitted,
expressly or by implication, any use whatsoever of the
Intellectual Property nor granted to any third party any right
or interest in respect of the Intellectual Property other than
under the Intellectual Property Agreements.
18.3.5 All Intellectual Property Agreements have been duly recorded
or registered with the proper authorities whenever a
requirement to do so exists.
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18.4 Infringement
18.4.1 No Group Company has infringed and nor do any infringe any
Intellectual Property of a third party as a result of any Group
Company's use or exploitation of the Intellectual Property
owned, used or exploited by any Group Company nor, so far as
the Vendor is aware, will such use or exploitation give rise to
any such dispute claims or proceedings against any Group
Company.
18.4.2 There are not and have not been any disputes, claims or
proceedings threatened or in existence in any court or tribunal
in respect of any of the Intellectual Property as such owned,
used or exploited by any Group Company or in respect of any use
or exploitation of the Intellectual Property owned, used or
exploited by any Group Company.
18.4.3 So far as the Vendor is aware, there has been and is no current
infringement by any third party of any of the Intellectual
Property owned, used or exploited by any Group Company.
18.5 Trade Marks
All registered Trade Marks owned by any Group Company have been, and
are being, used by the relevant Group Company in the course of its
business in relation to the goods or services in respect of which
they are registered and no Group Company has any reason to believe
that any such Trade Mark may be struck off the register of trade
marks as a result of non-use.
19. LEGISLATION
So far as the Vendor is aware, no Group Company is in breach of or
has received notice of or is aware of any allegation of breach of the
requirements of any legislation which is applicable to it.
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PART 2
20. TAXATION
20.1 General
20.1.1 Notices and returns
All notices, returns, computations and registrations of each
Group Company for the purposes of Taxation have been made
punctually on a proper basis and are correct and none of them
is, or, so far as the Vendor is aware, is likely to be, the
subject of any dispute with any Taxation Authority.
20.1.2 Payment of Tax due
All Taxation which each Group Company is liable to pay prior to
Completion has been or will be so paid prior to Completion.
20.1.3 Penalties or interest on Tax
No Group Company has within the period of six years ending on
the date of this Agreement paid or since the Balance Sheet Date
become liable to pay any material penalty, fine or surcharge
charged by virtue of the provisions of the TMA or any other
Taxation Statute.
20.1.4 Compliance with PAYE, national insurance contribution and Tax
collection obligations
(a) All income tax deductible and payable under the PAYE
system and/or any other Taxation Statute has, so far as
is required to be deducted, been deducted from all
payments made by each Group Company and all amounts due
to be paid to the Inland Revenue prior to the date of
this Agreement have been so paid, including all Tax
chargeable on benefits provided for directors, employees
or former employees of each Group Company or any persons
required to be treated as such.
(b) All deductions and payments required to be made under
any Taxation Statute in respect of national insurance
and social security contributions (including employer's
contributions) have been so made.
(c) All payments by each Group Company to any person which
ought to have been made under deduction of Tax have been
so made and each Group Company (if required by law to do
so) has accounted to the Inland Revenue for the Tax so
deducted.
(d) Proper records have been maintained in respect of all
such deductions and payments and all applicable
regulations have been complied with.
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(e) The Disclosure Documents contain details so far as they
affect each Group Company of all current dispensations
agreed with the Inland Revenue in relation to PAYE and
all notifications given by the Inland Revenue under
section 166, TA 88.
20.1.5 Investigations
No Group Company has in the period of four years ending on the
date of this Agreement been subject to any visit, audit,
investigation, discovery or access order by any Taxation
Authority and, so far as the Vendor is aware, there are no
circumstances existing which make it likely that a discovery or
access order will be made.
20.1.6 No liability under section 23, TA 88
No Group Company has received a notice from the Collector of
Taxes under the provisions of section 23, TA 88 which has not
been complied with.
20.1.7 Tax provision
Proper provision or reserve has been made in the Accounts for
all Taxation assessed or liable to be assessed on each Group
Company or for which it is accountable in respect of income,
profits or gains earned, accrued or received or deemed to be
earned, accrued or received on or before the Balance Sheet
Date, including distributions made down to such date or
provided for in the Accounts.
20.1.8 Concessions and arrangements
The amount of Taxation chargeable on each Group Company during
any accounting period ending on or within the six years before
the Balance Sheet Date has not depended on any concessions,
agreements or other formal or informal arrangements with any
Taxation Authority.
20.1.9 Anti avoidance provisions
No Group Company has entered into or been a party to any scheme
or arrangement of which the sole purpose was the avoidance of
or the reduction in liability to Taxation.
20.1.10 Section 765, TA 88
No Group Company has without the prior consent of the Treasury
carried out or agreed to carry out any transaction under
section 765, TA 88 which would be unlawful in the absence of
such consent and has, where relevant, complied with the
requirements of section 765A(2), TA 88 (supply of information
on movement of capital within the EU) and any regulations made
or notice given thereunder.
20.1.11 Transactions requiring clearance or consent
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All particulars furnished to any Taxation Authority in
connection with an application for clearance or consent under
any statutory provision by any Group Company or on its behalf
or affecting any Group Company has been made and obtained on
the basis of full and accurate disclosure to the relevant
Taxation Authority of all relevant material facts and
considerations; and any transaction for which clearance or
consent was obtained, has been carried into effect only in
accordance with the terms of the relevant clearance or consent.
20.1.12 Calculation of tax liability
Each Group Company has sufficient records relating to past
events to permit accurate calculation of the Taxation liability
or relief which would arise upon a disposal or realisation on
completion of each asset owned by each Group Company at the
Balance Sheet Date or acquired by each Group Company since that
date but before Completion.
20.1.13 Claims and disclaimers
All Group Companies have duly submitted all claims and
disclaimers the making of which have been assumed for the
purposes of the Accounts.
20.1.14 Outstanding claims, elections and appeals
The Disclosure Documents contain full particulars of all
matters relating to Taxation in respect of which the Company is
or at Completion will be entitled:
(a) to appeal against any assessment or determination
relating to Taxation;
(b) to apply for a postponement of Taxation.
20.1.15 Business Rates
All Business Rates which each Group Company is liable to pay
prior to Completion have been or will be so paid prior to
Completion.
20.2 Corporation tax, including corporation tax on chargeable gains
20.2.1 Base values and acquisition costs
If each of the capital assets of each Group Company was
disposed of on the date hereof for a consideration equal to the
book value of that asset in, or adopted for the purposes of,
the Accounts or, in the case of assets acquired since the
Balance Sheet Date, equal to the consideration given upon its
acquisition, no liability to corporation tax on chargeable
gains or balancing charges under the CAA would arise and for
the purpose of determining the liability to corporation tax on
chargeable gains there shall be disregarded any relief and
allowances available to any Group Company other than amounts
falling to be deducted under section 38, TCGA.
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20.2.2 Capital allowances
All expenditure which any Group Company has incurred or may
incur under any subsisting commitment on the provision of
machinery or plant or buildings has qualified or will qualify
(if not deductible as a trading expense for trade carried on by
a Group Company) for writing-down allowances or industrial
building allowances (as the case may be) under the CAA and
where appropriate notices have been given to the Inland Revenue
under section 118, Finance Act 1994.
20.2.3 Leased assets
No Group Company has made any claim for capital allowances in
respect of any asset which is leased to or from or hired to or
from any such Group Company and no election affecting a Group
Company has been made or agreed to be under sections 53 or 55,
CAA in respect of such assets.
20.2.4 Short life assets
No Group Company has made any election under section 37, CAA
nor is any Group Company taken to have made such an election
under section 37(8)(c), CAA.
20.2.5 Industrial buildings
None of the assets of any Group Company expenditure on which
has qualified for a capital allowance under Part I, CAA has at
any time whilst it has been in the ownership of any Group
Company been used otherwise than as an industrial building or
structure.
20.2.6 Distributions
(a) No distribution within the meaning of sections 209, 210
and 211, TA 88 has been made by any Group Company after
5 April 1965 except dividends shown in its audited
accounts and no Group Company is bound to make any such
distribution.
(b) No elections have been made pursuant to Section 246A, TA
88 in respect of any dividends.
20.2.7 Repayments of share capital
No Group Company has at any time after 6 April 1965 repaid,
redeemed or repurchased or agreed to repay, redeem or
repurchase or granted an option under which it may become
liable to purchase any shares of any class of its issued share
capital nor has any Group Company after that date capitalised
or agreed to capitalise in the form of shares or debentures any
profits or reserves of any class or description or otherwise
issued or agreed to issue any share capital other than for the
receipt of new consideration (within the meaning of Part VI, TA
88) or passed or agreed to pass any resolution to do so.
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20.2.8 Demergers
No Group Company has been engaged in or been a party to any of
the transactions set out in sections 213 to 218 inclusive, TA
88 nor has it made or received a chargeable payment as defined
in section 218(1), TA 88.
20.2.9 Issues of securities
No securities (within the meaning of section 254(1), TA 88)
issued by any Group Company and remaining in issue at the date
of this Agreement were issued in such circumstances that the
interest payable on than falls to be treated as a distribution
under either sections 209(2)(d), 209(2)(da) or 209(2)(e), TA
88.
20.2.10 Land sold and leased back
No Group Company has entered into any transaction to which the
provisions of section 779 or 780, TA 88 have been or is
reasonably likely to be applied.
20.2.11 Foreign loan interest
No Group Company has, within the six years prior to the date of
Completion received any foreign loan interest in respect of
which double taxation relief will or may be restricted under
section 798, TA 88.
20.2.12 Non-deductible payments
No rents, interest, annual payments or other sums of an income
nature paid or payable by any Group or which any Group Company
is under an existing obligation to pay in the future are or may
be wholly or partially disallowable as deductions, management
expenses or charges in computing profits for the purposes of
corporation tax by reason of the provisions of sections 74, 79,
125, 338, 339, 779 to 784 inclusive, 787 or 788, TA 88.
20.2.13 Rent payable to connected persons
No rent is or has been payable by any Group Company to which
the provisions of sections 33A and 33B, TA 88 have applied.
20.2.14 No unremittable income or gains
No claim has been made by any Group Company under sections 584
or 585, TA 88 or under section 279, TCGA.
20.2.15 Payments to directors, officers or employees
So far as the Vendor is aware, no Group Company has made or
agreed to make any payment to or provided or agreed to provide
any benefit for any Director or former director, officer or
employee of a Group Company, whether as compensation for loss
of office, termination of employment or
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otherwise, which is not allowable as a deduction in calculating
the profits of a Group Company for Taxation purposes whether up
to or after the Balance Sheet Date.
20.2.16 Transfer pricing
No Group Company is a party to any transaction or arrangement
under which it has paid or, so far as the Vendor is aware, will
be obliged to pay in the future for any asset or any services
or facilities of any kind an amount which is in excess of the
market value of that asset or those services or facilities nor
has any Group Company received nor, so far as the Vendor is
aware, will it in the future receive any payment for an asset
or any services or facilities of any kind that it has supplied
or provided or is liable to supply or provide which is less
than the market value of that asset or those services or
facilities.
20.2.17 Transactions not at arm's length
No Group Company has disposed of or acquired any asset in
circumstances falling within section 17, TCGA nor given any
consideration to which section 128(1)(2), TCGA applies.
20.2.18 Chargeable debts
No Group Company is owed a debt, other than a debt on a
security, on the disposal or satisfaction of which a liability
to corporation tax on chargeable gains will arise by reason of
section 251, TCGA.
20.2.19 Relief for loans to traders and qualifying corporate bonds
No claim for relief has been allowed to any Group Company
pursuant to sections 253 and 254, TCGA in respect of any loan
and no chargeable gain has arisen pursuant to section 253 (5),
(6), (7) or (8) or section 254 (9) or (10), TCGA.
20.2.20 Chargeable policies
No Group Company has acquired benefits under any policy of
assurance otherwise than as the original holder of legal and
beneficial title.
20.2.21 Transfer of overseas trade
No Group Company has transferred a trade carried on by it
outside the United Kingdom through a branch or agency to a
company not resident in the United Kingdom in such
circumstances that a chargeable gain has arisen under section
140, TCGA.
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20.2.22 Restriction of straightline growth
No asset owned by any Group Company is subject to a deemed
disposal and re-acquisition under schedule 2, TCGA so as to
restrict the extent to which the gain or loss over the period
of ownership may be apportioned by reference to straightline
growth.
20.2.23 Other claims made by Group Companies
No Group Company has made a claim under any of the following:-
(a) section 280, TCGA (tax on chargeable gains payable by
instalments);
(b) section 24(2), TCGA (assets of negligible value); or
(c) section 242(2), TCGA (small part disposals of land).
(d) section 139, Finance Act 1993 (deferral of unrealised
exchange gains).
20.2.24 Gifts
No Group Company has received any assets by way of gift as
mentioned in section 282, TCGA and no Group Company holds
shares in a company to which section 125, TCGA could apply.
20.2.25 Non-resident companies
(a) There has not accrued or arisen any income, profit or
gain in respect of which any Group Company is liable to
corporation tax by virtue of the provisions of section
13, TCGA or Chapter IV of Part XVII, TA 88.
(b) No Group Company has been served with a notice in
respect of the unpaid corporation tax liability of any
company pursuant to section 191, TCGA.
20.2.26 Controlled foreign companies
No notice of the making of a direction under section 747, TA 88
has been received by any Group Company and, so far as the
Vendor is aware, no circumstances exist which would entitle the
Inland Revenue to make such a direction or to apportion any
profits of a controlled foreign company to any Group Company
pursuant to section 752, TA 88 .
20.2.27 Charges on non-residents
No Group Company has been a party to any transaction or
arrangement whereby it is liable for Taxation under or by
virtue of Part VIII, TMA.
20.2.28 Profit related pay
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No scheme registered under Chapter III of Part V, TA 88 applies
to any Group Company or any of its employees and no application
for registration of a scheme so applying has been made.
20.2.29 Payment from pension funds
No Group Company has received a payment out of funds held for
the purposes of an exempt approved scheme in respect of which
an amount is recoverable by the Inland Revenue under section
601, TA 88.
20.2.30 Claims and elections
(a) The Disclosure Documents contain full particulars of all
claims and elections made (or assumed to be made) under
sections 23, 152-162 or 165, 175, 247, 248, TCGA insofar
as they could affect the chargeable gain or allowable
loss which would arise in the event of a disposal by any
Group Company of any of its assets, and indicates which
assets (if any) so affected would not on a disposal give
rise to relief under Schedule 4, TCGA.
(b) The Disclosure Documents contain full particulars of
elections made under
(i) Regulation 10 of The Exchange Gains and Losses
(Alternative Method of Calculating of Gain or
Loss) Regulations 1994 and whether or not such
elections have been varied
(ii) Regulation 10 of the Local Currency Elections
Regulations 1994 and such election is still valid.
20.3 Corporation tax - groups of companies
20.3.1 Group relief
The Disclosure Documents contain full particulars of all
arrangements and agreements relating to group relief (as
defined by section 402, TA 88 ) within the last six years to
which any Group Company is or has been a party and:-
(a) all claims by a Group Company for group relief were when
made and are now valid and have been or will be allowed
by way of relief from corporation tax;
(b) no Group Company has made nor is liable to make any
payment under any such arrangement or agreement save in
consideration for the surrender of group relief; and
(c) there are no outstanding payments due to any Group
Company under any arrangement or agreement for any
surrender of group
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relief made by it and the payments are not liable to
be refunded in whole or in part.
20.3.2 Surrender of advance corporation tax
The Disclosure Documents contain full particulars of all
arrangements and agreements made within the six years prior to
the date of Completion to which any Group Company is or has
been a party relating to the surrender of advance corporation
tax made or received by any Group Company under section 240, TA
88 and:-
(a) no Group Company has paid nor is liable to pay for the
benefit of any advance corporation tax which has become
incapable of set-off against any Group Company's
liability to corporation tax; and
(b) there are no outstanding payments due to any Group
Company under any arrangement or agreement for any
surrender of advance corporation tax made by it and the
payments are not liable to be refunded in whole or in
part.
20.3.3 Acquisitions from group members
No tax has been or is reasonably likely to be assessed on any
Group Company pursuant to section 190, TCGA in respect of any
chargeable gain accrued prior to the date of this Agreement and
no Group Company has at any time within the period of six years
ending with the date of this Agreement transferred any asset
other than trading stock including without limitation any
transfer by way of share exchange within section 135, TCGA to
any company which at the time of disposal was a member of the
same group as defined in section 170, TCGA.
20.3.4 Leaving the group
The execution or completion of this Agreement or any other
event since the Balance Sheet Date will not result in any
chargeable asset being deemed to have been disposed of and
re-acquired by any Group Company for Taxation purposes pursuant
to section 178 or 179, TCGA or as a result of any other Event
since the Balance Sheet Date.
20.3.5 Group income
The Disclosure Documents contain full particulars of all
current elections made by each Group Company under section 247,
TA 88 and all such elections are now in force and no Group
Company has in the six years prior to the date of Completion
paid any dividend without advance corporation tax or made any
payment without deduction of income tax in the circumstances
specified in section 247(6), TA 88 and no assessment has been
made on any Group Company in respect of advance corporation tax
which ought to have been paid or income tax which ought to have
been deducted.
20.4 Close companies
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20.4.1 Close company status
Each Group Company has at all times, in the six years prior to
the date of Completion been a close company within the meaning
of sections 414 and 415, TA 88.
20.4.2 Close investment-holding company status
No Group Company has, in the six years prior to the date of
Completion been a close investment-holding company as defined
in section 13A, TA 88.
20.4.3 Distributions
No distribution within section 418, TA 88 has ever been made by
any Group Company.
20.4.4 Loans to participators
Any loans or advances made or agreed to be made by any Group
Company within sections 419 and 420 or 422, TA 88 have been
disclosed and no Group Company has released or written off or
agreed to release or write off the whole or any part of any
such loans or advances.
20.5 Inheritance tax
20.5.1 No transfers of value and associated operations
No Group Company has, in the six years prior to the date of
Completion made any transfers of value within sections 94 and
202, ITA nor has any Group Company received a transfer of value
such that liability has arisen under section 199, ITA nor has
any Group Company knowingly been party to associated operations
in relation to a transfer of value as defined by section 268,
ITA.
20.5.2 Inland Revenue charge
There is no unsatisfied liability to inheritance tax attached
to or attributable to the Shares or any asset of any Group
Company and none of them are subject to an Inland Revenue
charge as mentioned in section 237 and 238, ITA.
20.5.3 Power of sale, mortgage or charge
So far as the Vendor is aware, no asset owned by any Group
Company nor the Shares are liable to be subject to any sale,
mortgage or charge by virtue of section 212, ITA.
20.6 VAT
20.6.1 Returns and payments
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(a) Each Group Company is a taxable person duly registered
for the purposes of VAT.
(b) Each Group Company has complied with all statutory
provisions, rules, regulations, orders and directions in
respect of VAT, has promptly submitted accurate returns,
and each Group Company maintains full and accurate VAT
records, has never been subject to any interest,
forfeiture, surcharge or penalty nor been given any
notice under sections 59 or 64, VATA nor been given a
warning within section 76(2), VATA nor has any Group
Company been required to give security under paragraph 4
of Schedule 11, VATA.
(c) VAT has been duly paid or provision has been made in the
Accounts for all amounts of VAT for which each Group
Company is liable.
20.6.2 Taxable supplies and input tax credit
No supplies made by any Group Company are exempt supplies and
no Group Company has been denied full credit for all input tax
by reason of the operation of sections 25 and 26, VATA and
regulations made thereunder or for any other reasons and no VAT
paid by any Group Company is not input tax as defined in
section 24, VATA and regulations made thereunder.
20.6.3 VAT groups
No Group Company is or has been for VAT purposes a member of
any group of companies other than the Group and no act or
transaction has been effected in consequence whereof any Group
Company is or may be held liable for any VAT arising from
supplies made by another company.
20.6.4 Transactions between connected persons
No Group Company has been or, so far as the Vendor is aware,
agreed to be party to any transaction or arrangement in
relation to which a direction has been or could be made under
paragraph 1 of Schedule 6, VATA or to which paragraph 2(3A) or
2(3AA) of Schedule 10, VATA applies.
20.6.5 Charge to VAT as agent or representative
No Group Company is or has agreed to become liable for VAT by
virtue of section 47 and 48, VATA.
20.6.6 VAT and Properties
Each Group Company or its relevant associate for the purposes
of paragraph 3(7) of Schedule 10, VATA has exercised the
election to waive exemption from VAT (pursuant to paragraph 2
of schedule 10, VATA) only in respect of those Properties
listed (as having been the subject of such an election) in the
Disclosure Documents and no Group Company nor a
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relevant associate of any Group Company has any obligation to
exercise such an election in respect of any other of the
Properties.
20.6.7 Capital goods scheme
No Group Company owns or has at any time within the period of
ten years preceding the date hereof owned any assets which are
capital items subject to the Capital Goods Scheme under Part XV
of the VAT Regulations 1995.
20.6.9 Self billing
No Group Company has entered into any self billing arrangement
in respect of supplies made by any other person nor has any
Group Company at any time agreed to allow any such person to
make out VAT invoices in respect of supplies made by such Group
Company.
20.7 Stamp duty
20.7.1 Stamp duty
All stampable documents wheresoever executed (other than those
which have ceased to have any legal effect) to which any Group
Company is a party have been duly stamped in respect of Stamp
Duty. Since the Balance Sheet Date no Group Company is or has
been a party to any instrument in respect of which any penalty
in respect of such duty will arise on any Group Company.
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SCHEDULE 6
BASIS FOR PREPARATION OF THE COMPLETION ACCOUNTS
1. General Requirements
Subject to the provisions of PARAGRAPHS 2 to 4 hereof, the Completion
Accounts shall be prepared under the historical cost convention and in
accordance with accounting principles generally accepted in the United
Kingdom (including Accounting Standards) and, subject as aforesaid, on a
basis consistent with the balance sheets and profit and loss account of
each Group Company made up to the Balance Sheet Date. PARAGRAPHS 2 and 3
shall have priority over PARAGRAPH 4.
2. Balance Sheet
2.1 A balance sheet shall be prepared for the Group setting out the value of
the Net Assets.
2.2 For the purpose of preparing the balance sheet and calculating the Net
Assets the following principles shall be applied:-
2.2.1 subject to PARAGRAPH 2.2.2, sums receivable in respect of debtors
shall not be included at sums higher than the amounts collectable,
making appropriate provision for doubtful debts;
2.2.2 debtors shall be given a zero value to the extent that gross
aggregate debtors exceed 88 times the average daily sales in the
period 1 August 1997 to 31 October 1997 (inclusive);
2.2.3 subject to PARAGRAPH 2.2.4, stocks and work-in-progress shall be
valued at the lower of cost and net realisable value;
2.2.4 stocks and work-in-progress shall be given a zero value to the
extent that gross aggregate stocks and work-in-progress exceed 123
times the average daily cost of sales in the period 1 August 1997
to 31 October 1997 (inclusive);
2.2.5 liabilities shall include accruals at the close of business on 31
October 1997;
2.2.6 no value shall be attributable to goodwill or any other intangible
asset;
2.2.7 real and immovable property and other fixed assets shall be
included at their net book value as at the Balance Sheet Date (or
at cost if purchased after the Balance Sheet Date) less
depreciation at rates calculated to write off the cost of the
assets over the following periods:
(a) plant and machinery 3-7 years;
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(b) fixtures and fittings 3-7 years;
(c) motor vehicles 4 years;
(d) short leasehold properties the term of the lease;
consistent with previous accounting policies of the Group;
2.2.8 the amount of licence revenue due to Group Companies from Johnson
& Johnson, Inc. in November 1997 shall be added for the purpose of
calculating the Net Assets;
2.2.9 appropriate provision shall be included for employee redundancies
and the costs of relocating the Berkhamsted facility, estimated at
'L'240,000;
2.2.10 the sum of 'L'100,000 shall be added for the purpose of
calculating the Net Assets;
2.2.11 appropriate provision shall be included for the costs of removing
the oil storage tanks, however one storage tank may be left in
place provided that provision is included for the cost of bringing
the oil storage tank up to a standard of best practice in
accordance with relevant guidance issued by the Environment Agency
or its predecessors to ensure, so far as possible, that the tank
is not capable of leaking or discharging into the Environment;
2.2.12 appropriate provision shall be included for the removal of
hydrocarbons from the shallow trench located on the Thermoking
Property;
2.2.13 a provision of 'L'50,000 shall be included in respect of a
termination payment due to Keith Preston;
2.2.14 the payment due from the Group to Keith Preston on Completion in
the sum of 'L'200,000 shall nOt be included in calculation of the
Net Assets;
2.2.15 a provision of 'L'90,000 shall be included in respect of the
payment due to Hydron;
2.2.16 full provision shall be included in respect of bonuses payable to
managers of the Group, estimated at 'L'30,000; and
2.2.17 adequate provision shall be made for all Taxation, including
deferred taxation.
For the avoidance of doubt it is acknowledged by the parties hereto that
certain of the matters referred to above (and, in particular but without
detracting from the generality of the foregoing the item referred to in
paragraph 2.2.8) will have occurred/will occur subsequently to 31st
October 1997 but, solely for the purposes of the calculation of the Net
Assets, it has been agreed between the parties that they will be taken
into account.
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3. Profit and loss account
Unless already taken into account, the following principles shall be
observed in drawing up the profit and loss account of the Group which is
to form part of the Completion Accounts:-
3.1 there shall be excluded any profits, gains or losses arising from any
disposal of any immovable property or from any revaluation of immovable
property or surpluses or deficits arising on currency transactions,
whether or not such profits, gains, losses, surpluses or deficits are
treated in the said accounts as items of an extraordinary or exceptional
nature;
3.2 depreciation shall be deducted on the basis and by reference to the rates
mentioned in PARAGRAPH 2.2.7 above;
3.3 any Taxation on profits and any subvention or other payment to any other
company in lieu of payment of any such tax or in consideration of a
surrender of group relief by the other company shall be deducted; and
3.4 the profits or losses shall be computed before paying any dividend or
making appropriations of profit or allocations to or from reserves and
before deducting any extraordinary item or making any prior year
adjustment, as defined in SSAP 6.
4. True and fair view
The Completion Accounts shall show a true and fair view of the state of
affairs of the Group at the close of business on 31 October 1997 and of
the profits of the Group for the period beginning on the day immediately
following the Balance Sheet Date and ending on 31 October 1997.
5. Changes in Accounting Standards
Unless otherwise taken into account in accordance with the preceding
provisions of this schedule the Completion Accounts shall be prepared
without regard to any changes in Accounting Standards from those applied
in the preparation of the Accounts.
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SCHEDULE 7
COMPLETION
PART 1 - DELIVERY OF DOCUMENTS BY VENDOR
On Completion, the Vendor shall deliver to the Purchaser:-
1. certificates of non-crystallisation from all persons holding security
over the assets of the Group;
2. the Deed of Tax Covenant duly executed as a deed by the Vendor;
3. the Earn Out Agreement duly executed by the Vendor;
4. the Share Charge duly executed by the Vendor;
5. certificates in respect of all issued shares in the capital of each of
the Subsidiaries; and
6. the written resignations in the agreed terms of all the Directors (except
Anthony David Galley) of each Group Company (other than Aspect Vision
Italia s.r.l. in respect of which the resignation of G. Grassi shall not
be required) from their respective offices such resignations to take
effect from Completion.
PART 2 - ACTIONS BY VENDOR
On Completion:
1. each of the Purchase Agreements shall be executed by the Sellers and
completed in accordance with their terms;
2. a board meeting of each Group Company shall be held at which:
2.1. in the case of the Companies, the transfers of the relevant Shares
shall be passed for registration and registered (subject only to
the same being duly stamped which shall be at the cost of the
Purchaser);
2.2. it shall be resolved to repay any loans made to the relevant Group
Company by a director;
2.3. it shall be resolved, in the case of Aspect Vision Care Limited
and Contact Lens Technologies Limited, to make payments not
exceeding (pound)1,500,000 in aggregate for the two companies, to
the Patent Owners on account of royalties due to the Patent
Owners;
2.4. in the case of Aspect Vision Care Limited, the Service Agreements
shall be approved and entered into;
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2.5. the resignations referred to PARAGRAPHS 7 OF PART 1 shall be
tendered and accepted so as to take effect at the close of the
relevant meetings which they are tabled;
2.6. in the case of:
2.6.1. Aspect Vision Italia s.r.l., Gregory Fryling and the
Vendor; and
2.6.2. Aspect Vision Care Limited, New Focus Health Care Limited,
Contact Lens Technologies Limited, Focus Solution Limited,
Aspect Speciality Limited, Averlan Company Limited, Aspect
Contact Lens Limited, Gregory Fryling and Ian Bussey;
shall be appointed as additional directors; and
2.7. the accounting reference date shall be changed to 31 October.
PART 3 - DELIVERY OF DOCUMENTS AND ACTIONS BY THE PURCHASER
Subject as provided in CLAUSE 5.3, on Completion the Purchaser shall:-
1. enter into and complete the Purchase Agreements in accordance with their
terms;
2. deliver to the Vendor a copy of the minutes of a meeting of the directors
of the Purchaser:
2.1 authorising the execution of this Agreement and related documents
(such copy minutes being certified as correct by an officer of the
Purchaser); and
2.2 resolving to create and issue the Purchase Notes;
3. deliver to the Vendor a counterpart Deed of Tax Covenant duly executed as
a deed by the Purchaser; and
4. deliver to the Vendor a counterpart of the Earn Out Agreement duly
executed by the Purchaser.
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PART 4 - DELIVERY OF DOCUMENTS AND ACTIONS BY TCC
Subject as provided in CLAUSE 5.3, on Completion TCC shall:
1. procure that CooperVision, Inc. delivers to the Vendor a counterpart of
the Patent Licence duly executed by TCC;
2. deliver to the Vendor a copy of the minutes of a meeting of the directors
of TCC:
2.1 authorising the execution of this Agreement and related documents
(such copy minutes being certified as correct by an officer of
TCC); and
2.2 authorising the execution of the instrument constituting the
Purchase Notes.
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SCHEDULE 8
LIMITATION OF VENDOR'S LIABILITY
PART 1 - GENERAL LIMITATIONS
1. Notwithstanding the provisions of CLAUSE 7, the Vendor shall not be
liable in respect of a breach of any of the Warranties if and to the
extent that the loss occasioned thereby has been recovered under the
Indemnities or the Deed of Tax Covenant.
2. The Purchaser shall be obliged to take and shall procure that each Group
Company shall take all reasonable steps to mitigate any loss in relation
to circumstances which may give rise or have given rise to action against
the Vendor under the Warranties and the Vendor shall not be liable for
any loss or increased loss arising from any failure by the Purchaser to
take such reasonable steps.
3. The Vendor shall not be liable in respect of any claim:-
3.1 under the Warranties to the extent that the facts which might
result in a claim or possible claim were Disclosed;
3.2 under the Warranties or the Indemnities to the extent that the
subject of the claim is specifically allowed or provided for or
reserved in the Completion Accounts or has been included in
calculating creditors or deducted in calculating debtors in the
Completion Accounts or in the case of creditors or debtors is
specifically referred to in the notes to the Completion Accounts;
3.3 under the Warranties or, subject to the proviso in PARAGRAPH
3.3.4, the Indemnities to the extent that a claim arises or is
increased:-
3.3.1 wholly or partly from an act or omission, being outside of
the ordinary course of the Business, occurring at the
request of or with the written consent of the Purchaser or
(on or after the date hereof) any Group Company or any of
their directors, other officers, employees or agents;
3.3.2 wholly or partly from an act or omission compelled by law;
3.3.3 as a result of any increase in rates of Taxation since the
Balance Sheet Date or as a result of the retrospective
imposition of Taxation as a consequence of a change in the
law enacted after the date of this Agreement;
3.3.4 wholly or partly as a result of the passing or coming into
force (other than in respect of the Contaminated Land
Provisions) of or any change in any enactment, law,
regulation, directive,
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requirement or any published practice of any government,
government department or agency or regulatory body
(including but not limited to extra-statutory concessions
of the Inland Revenue) after the date hereof whether or not
having retrospective effect PROVIDED THAT the limitation in
this PARAGRAPH 3.3.4 shall not apply so as to limit the
liability of the Vendor under the Environmental Indemnity;
3.3.5 wholly or partly as a result of a change of accounting
policy or practice of the Purchaser or any Group Company
introduced after the date of this Agreement;
3.4 under the Warranties or the Indemnities to the extent that the
Purchaser or any Group Company makes recovery under the terms of
any insurance policy against any loss or damage it may suffer.
4. For the avoidance of doubt, the liability of the Vendor under the
Warranties or the Indemnities shall not be limited by any contingent
liability noted in the Completion Accounts unless a specific provision or
reserve is also included in such accounts in which event PARAGRAPH 3.2
above shall apply.
5. The Purchaser shall reimburse to the Vendor an amount equal to any sum
paid by the Vendor in respect of any breach of any of the Warranties or
pursuant to the Indemnities which is subsequently recovered by the
Purchaser or any Group Company from any third party, after deducting from
such sum its reasonable costs received in connection with such recovery
and any Taxation thereon.
6. If a claim is made by a third party against the Purchaser or any Group
Company in respect of a matter in respect of which it appears that the
Vendor is or may become liable under the Warranties, then the Purchaser
shall as soon as reasonably practicable give notice thereof to the Vendor
and, at the written request of the Vendor and subject to the Purchaser
being indemnified and kept indemnified to its reasonable satisfaction
against any claims, costs, expenses and other liabilities, the Purchaser
shall take such action as the Vendor may reasonably require to avoid,
dispute or compromise such claim and the Purchaser shall render to the
Vendor all such assistance as the Vendor require in disputing such claim.
Nothing in this PARAGRAPH 6 shall oblige the Purchaser to take any action
where, in the opinion of the Purchaser, such action would cause damage to
the goodwill of the Business of any part thereof. No claim by the
Purchaser under the Warranties shall be prejudiced by:-
6.1 any failure to give notice to the Vendor as aforesaid; or
6.2 any decision by the Purchaser not to take any action requested by
the Vendor in order to protect the goodwill of the Business or any
part thereof.
7. If any claim is made by the Purchaser for breach of any of the Warranties
or the Indemnities then, for the purpose of determining the amounts for
which the
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Vendor is liable as a result of such breach, there shall be taken into
account and credit given for the amount by which at the date of such a
claim any liability of the Group Companies provided for in the Completion
Accounts has been discharged or satisfied below the amount provided
therefore in the Completion Accounts.
8. The Tax Warranties shall not apply to Aspect Vision Italia s.r.l.
PART 2 - FINANCIAL LIMITATIONS UNDER THE WARRANTIES, INDEMNITIES AND THE
DEED OF TAX COVENANT
9. The liability of the Vendor in respect of any claim::-
9.1 under the Warranties, the Indemnities or the Deed of Tax Covenant
shall not arise unless and until the amount of such claim, when
aggregated with the amount of any other such claim made against
the Vendor under this Agreement or under the Deed of Tax Covenant
(or which would have been made but for the operation of this
PARAGRAPH 8) exceeds 'L'150,000 in which event all of such claim
or claims shall be recoverable hereunder;
9.2 under the Warranties, the Indemnities or the Deed of Tax Covenant
shall not (when aggregated with the amount of all other claims
made against the Vendor under the Warranties, the Indemnities or
the Deed of Tax Covenant) exceed twenty per cent (20%) of the
Total Consideration (the "Cap"). For the purposes of this
PARAGRAPH 9.2, the Total Consideration shall be calculated at the
time the liability for the claim is due to be satisfied and shall
be the aggregate of:-
9.2.1 the Cash Consideration;
9.2.2 the nominal value of the Purchase Notes;
9.2.3 the nominal value of the EOLN; and
9.2.4 the aggregate consideration paid by the Purchaser for such
of the Earn Out Shares, or for the options over the
Earn-Out shares, as have been purchased by the Purchaser
pursuant to the Earn-Out Agreement at that date;
SO THAT where a claim is to be satisfied before the EOLN has been issued
and/or the Earn Out Shares have been purchased and as a result of the
calculation of the Cap at that time the claim is not satisfied in full,
the balance of the amount payable in respect of the claim shall not be
extinguished but shall remain outstanding and shall be paid by the Vendor
at the time the EOLN is issued and/or Earn Out Shares are purchased to
the extent that the Cap, recalculated at that time, increases.
PART 3 - TIME LIMITATIONS UNDER THE WARRANTIES
(OTHER THAN TAX WARRANTIES AND ENVIRONMENTAL WARRANTIES)
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10. The liability of the Vendor in respect of any claim under the Warranties
other than a claim in respect of the Tax Warranties or the Environmental
Warranties shall cease on the second anniversary of Completion except in
respect of matters which have been the subject of a bona fide written
claim which is made before that date by or on behalf of the Purchaser to
the Vendor which gives such reasonable details of all material aspects of
the claim as are then available including the Purchaser's bona fide
estimate of the amount thereof.
PART 4 - TIME LIMITATIONS UNDER THE TAX WARRANTIES
11. The liability of the Vendor in respect of any claim under the Tax
Warranties shall cease on the sixth anniversary of Completion except in
respect of matters which have been the subject of a bona fide written
claim which is made before that date by or on behalf of the Purchaser to
the Vendor which gives such reasonable details of all material aspects of
the claim as are then available including the Purchaser's bona fide
estimate of the amount thereof.
PART 5 - ENVIRONMENTAL WARRANTIES AND ENVIRONMENTAL INDEMNITY
12. The liability of the Vendor in respect of any claim under the
Environmental Warranties or the Environmental Indemnity shall cease on
the sixth anniversary of Completion, except in respect of matters which
have been the subject of a bona fide written claim which is made before
that date by or on behalf of the Purchaser to the Vendor which gives such
reasonable details of all material aspects of the claim as are then
available including the Purchaser's bona fide estimate of the amount
thereof.
PART 6 - OTHER PROVISIONS
13. Any claim which may be made in respect of the Warranties shall be deemed
to be withdrawn (if it has not been previously satisfied, settled or
withdrawn) unless legal proceedings in respect of such claim shall have
been commenced by the Purchaser against the Vendor within 12 months of
the date of notification of the claim save that where notification is
made by the Purchaser of a claim which is contingent such claim shall be
deemed to be withdrawn unless legal proceedings in respect of such claim
have been commenced within 6 months of the claim crystallising.
14. The rights of the Purchaser in respect of a breach of any of the
Warranties shall not be affected by Completion.
15. This SCHEDULE 8 which, inter alia, regulates or otherwise affects the
liability of the Vendor shall remain in full force and be fully
applicable in all circumstances and, in particular (but without
limitation), shall not be discharged in whole or in part by any breach of
any of the Warranties or any claim against the Vendor in respect of the
Warranties, the Indemnities or the Deed of Tax Covenant, whatever its
nature or consequences, nor by any other matter whatsoever.
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SCHEDULE 9
PART 1 - EXHIBITS
Exhibit A - Accounts
Exhibit B - Management Accounts
Exhibit C - Memorandum and Articles of Association (Warranty 2.2)
Exhibit D - Financial facilities (Warranty 7.2)
Exhibit E - Insurance policies (Warranty 11.2)
Exhibit F - Material contracts (Warranty 15.2)
Exhibit G - Particulars of employees (Warranty 16.1)
Exhibit H - List of members of group personal pension scheme
(Warranty 17.1)
Exhibit I - Particulars of Pension Schemes (Warranty 17.2)
Exhibit J - Particulars of Intellectual Property (Warranty 18.1.1)
Exhibit K - Intellectual Property Agreements (Warranty 18.3.1)
PART 2 - DOCUMENTS IN THE AGREED TERMS
AVC Agreement
AVI Agreement
CLT Agreement
Deed of Contribution
Deed of Tax Covenant
Directors resignation letters
Earn Out Agreement
NFHC Agreement
Non-Competition Agreements
Patent Licence
Purchase Notes
Service Agreements
Share Charge
Subordination Agreement
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SCHEDULE 10
TCC STOCK OPTIONS
PART A - OPTIONS TO BE GRANTED AT EXCHANGE OF THIS AGREEMENT
(1) (2)
Name Entitlement to options
B Bevis 13,800
I Atkinson 13,800
R Poole 13,800
I McDermott 13,800
G Grassi 13,800
F Lambertini 13,800
D Cooper 8,800
G Carroll 8,800
M Kelly 8,800
I Bussey 8,800
R Hilliard 3,800
K Edwards 3,800
G Cheater 3,800
B Ford 3,800
G Breslin 3,800
M May 3,800
K Askew 1,300
D Garrett 1,300
M Wade 1,300
C Vokes 1,300
M Lush 1,300
PART B - OPTIONS TO BE GRANTED AFTER THE DATE HEREOF
(1) (2)
Name Entitlement to options
B Bevis 1,200
I Atkinson 1,200
R Poole 1,200
I McDermott 1,200
G Grassi 1,200
F Lambertini 1,200
D Cooper 1,200
G Carroll 1,200
M Kelly 1,200
I Bussey 1,200
R Hilliard 1,200
K Edwards 1,200
G Cheater 1,200
B Ford 1,200
G Breslin 1,200
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M May 1,200
K Askew 1,200
D Garrett 1,200
M Wade 1,200
C Vokes 1,200
M Lush 1,200
PART C - OPTIONS TO BE GRANTED AT THE VENDOR'S DIRECTION
(1) (2)
Name Entitlement to options
Such persons as the Vendor may direct Up to 62,500 in aggregate
--------------------------------
Total 235,000
--------------------------------
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<PAGE>
SIGNED by ANTHONY DAVID GALLEY )
in the presence of:- )
)
SIGNED by )
for and on behalf of )
ASPECT VISION HOLDINGS LIMITED )
in the presence of:- )
SIGNED by )
for and on behalf of )
THE COOPER COMPANIES, INC. )
in the presence of:- )
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Exhibit 2.2
Dated November 1997
-------------------------------------------
ANTHONY DAVID GALLEY (and Others) (1)
ASPECT VISION HOLDINGS LIMITED (2)
and
THE COOPER COMPANIES, INC. (3)
----------------------------------------------
Agreement
for the sale and purchase
of the entire issued share capital
of NEW FOCUS HEALTH CARE LIMITED
----------------------------------------------
Cameron McKenna
Mitre House
160 Aldersgate Street
London EC1A 4DD
T+44(0)171367 3000
F+44(0)171367 2000
<PAGE>
<PAGE>
Table of Contents
1. Definitions and interpretation...........................................1
2. Condition................................................................4
3. Sale and purchase........................................................4
4. Consideration............................................................5
5. Completion...............................................................5
6. Waiver of pre-emption rights.............................................6
7. RTPA.....................................................................6
8. Announcements............................................................7
9. Implied covenants for title and further assurance........................7
10. Assignment..............................................................7
11. Remedies cumulative.....................................................8
12. Waiver, variation and release...........................................8
13. Costs and expense.......................................................8
14. Notices.................................................................9
15. Counterparts............................................................9
16. Language...............................................................10
17. Invalidity.............................................................10
18. Agreement to continue in full force and effect.........................10
19. Confidentiality........................................................10
20. Governing law and jurisdiction.........................................11
Schedule 1 The Vendors.....................................................12
Schedule 2 Completion Part 1 - Delivery of documents by Vendors............13
Part 2 - Delivery of documents and actions by the Purchaser.........13
Part 3 - Delivery of documents and actions by TCC...................14
Schedule 3 Documents in the agreed terms...................................15
Schedule 4 Conduct of business pending Completion..........................16
<PAGE>
<PAGE>
THIS AGREEMENT is made the day of November 1997
BETWEEN:-
(1) The persons whose names and addresses are set out in column 1 of schedule 1
(the "Vendors"); and
(2) ASPECT VISION HOLDINGS LIMITED (registered in England with number 3448379)
whose registered office is at Mitre House, 160 Aldersgate Street, London,
EC1A 4DD (the "Purchaser"); and
(3) THE COOPER COMPANIES, INC. a company incorporated in Delaware whose
principal office is at 6140 Stoneridge Mall Road, Suite 590, Pleasanton CA
94588 USA ("TCC").
WHEREAS:-
(A) The Vendors are each shareholders in the Company.
(B) The Purchaser wishes to purchase the entire issued share capital of the
Company from the Vendors and the Vendors have each agreed to sell their
respective shareholdings in the Company in each case upon and subject to
the terms and conditions of this Agreement.
WHEREBY IT IS AGREED as follows:-
1. Definitions and interpretation
1.1 In this Agreement the following words and expressions have the meanings set
opposite them:
"Affiliate": in relation to any body corporate, any
Holding Company or subsidiary undertaking of
such body corporate or any subsidiary
undertaking of a Holding Company of such
body corporate;
"Agreement": this Agreement including its recitals and
the schedules hereto;
"Business Day": a weekday (other than a Saturday) when banks
are open for business in London;
"CA 85": Companies Act 1985;
"Cash Consideration": the cash consideration payable for the
Shares as specified in clause 4.1;
"Company": means New Focus Health Care Limited, a
company registered in England and Wales
under number 1847802 whose registered office
is at Unit 2, South Point, Hamble,
Southampton, Hampshire, SO31 4RF;
"Completion": completion of the sale and purchase of the
Shares pursuant to this Agreement;
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"Condition" the condition referred to in clause 2.1;
"Confidential Information": all information received or obtained by the
Vendors or supplied to the Vendors in the
negotiations leading to this Agreement and
which relates to TCC or any of its
subsidiaries;
"Deed of Contribution": the deed of contribution in the agreed terms
to be entered into at Completion between the
Purchaser, the Vendors and others;
"Earn Out Agreement" the agreement described as the Earn Out
Agreement to be entered into, at completion
of the Umbrella Agreement, between TCC, the
Purchaser and Anthony David Galley;
"Encumbrance": any interest or equity of any person
(including any right to acquire, option or
right of pre-emption) or any mortgage,
charge, pledge, lien, assignment,
hypothecation, security interest, title
retention or any other security agreement or
arrangement;
"EOLN": the loan note to be issued by the Purchaser
to Anthony David Galley by way of further
consideration for the Shares purchased from
Anthony David Galley, in accordance with the
terms of the Earn Out Agreement;
"Holding Company": a holding company within the meaning
ascribed to such expression by sections 736
and 736A, CA 85;
"Non Competition the agreements in the agreed terms to be
Agreements": entered into at Completion between the
Purchaser and the Vendors relating to the
protection of the goodwill of the business
of the Company;
"OSI Indemnity": the indemnity agreement in the agreed terms
to be entered into at Completion between
TCC, A Galley, G Galley, B Bevis, I
Atkinson, A Morland and W Brooker;
"Proceedings": any proceeding, suit or action arising out
of or in connection with this Agreement;
"Purchase Notes": the loan notes in the agreed terms to be
issued to the Vendors at Completion by the
Purchaser and guaranteed by TCC;
"Purchaser's Solicitors": Cameron McKenna of Mitre House, 160
Aldersgate Street, London EC1A 4DD;
"RTPA": Restrictive Trade Practices Act 1976;
"Service Agreements": the service agreements in the agreed terms
to be entered into between Aspect Vision
Care Limited and
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each of Anthony David Galley and Wilfred
Trevor Brooker;
"Service Document": a writ, summons, order, judgment or other
document relating to or in connection with
any Proceedings;
"Shares": the shares in the capital of the Company set
out in column (2) of schedule 1;
"Stock Exchange": London Stock Exchange Limited;
"Subordination Agreement": the subordination agreement in the agreed
terms to be entered into at Completion
between TCC, Keybank National Association
and the holders of the Purchase Notes;
"subsidiary": a subsidiary within the meaning ascribed to
such expression by sections 736 and 736A,
CA 85;
"subsidiary undertaking": a subsidiary undertaking within the meaning
ascribed to such expression by section 258,
CA 85;
"Umbrella Agreement": the umbrella agreement of even date herewith
relating to, inter alia, the sale and
purchase of the Shares and entered into
between the Purchaser, Anthony David Galley
and TCC;
"VAT": value added tax;
"Vendors' Solicitors": Travers Smith Braithwaite of 10 Snow Hill,
London, EC1A 2AL; and
"in the agreed terms": in the form agreed between the Vendors and
the Purchasers and signed for the purposes
of identification by or on behalf of each
party.
1.2 The table of contents and headings in this Agreement are inserted for
convenience only and shall not affect its construction.
1.3 Unless the context otherwise requires words denoting the singular shall
include the plural and vice versa, references to any gender shall include
all other genders and references to persons shall include bodies corporate,
unincorporated associations and partnerships in each case whether or not
having a separate legal personality. References to the word "include" or
"including" are to be construed without limitation.
1.4 References to recitals, schedules and clauses are to recitals and schedules
to and clauses of this Agreement unless otherwise specified and references
within a schedule to paragraphs are to paragraphs of that schedule unless
otherwise specified.
1.5 References in this Agreement to any statute, statutory provision or EC
Directive include a reference to that statute, statutory provision or EC
Directive as amended, extended, consolidated or replaced from time to time
(whether before or after the date of this Agreement) and include any order,
regulation, instrument or other subordinate legislation made under the
relevant statute, statutory provision or EC Directive.
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1.6 References to any English legal term for any action, remedy, method of
judicial proceeding, legal document, legal status, court, official or any
legal concept or thing shall in respect of any jurisdiction other than
England be deemed to include that which most approximates in that
jurisdiction to the English legal term.
1.7 Any reference to "writing" or "written" includes faxes and any
non-transitory form of visible reproduction of words.
1.8 References to times of the day are to London time and references to a day
are to a period of 24 hours running from midnight to midnight.
2. Condition
2.1 Condition precedent
Subject to clause 2.3, this Agreement is subject to and conditional upon
satisfaction of the condition in the Umbrella Agreement.
2.2 Time limit for satisfaction of Condition
If the condition in clause 2.1 has not been fulfilled or waived (by mutual
agreement of the parties) by 31 December 1997 (or by such later date as may
be agreed in writing between the parties) this Agreement shall thereupon
become null and void ab initio and none of the parties shall have any
rights against any other party hereunder.
2.3 Operative provisions
Notwithstanding clause 2.1, clauses 8, 10-16 (inclusive), 19 and 20 shall
come into force on the execution and exchange of this Agreement and the
remainder of this Agreement shall come into force on the fulfilment and/or
waiver of the Condition.
2.4 Conduct of business pending Completion
Each of the Vendors hereby undertakes to the Purchaser to procure, to the
extent that they are able, that the Company is run as set out in schedule 4
in respect of the period prior to Completion.
3. Sale and purchase
3.1 Obligation to sell and purchase and free from Encumbrances
Subject to the terms of this Agreement each of the Vendors shall sell, with
effect from 1 November 1997, with full title guarantee and free from
Encumbrances those Shares set opposite his name in column (2) of schedule 1
and the Purchaser shall purchase such Shares together with all rights
attaching thereto with effect from 1 November 1997.
3.2 Dividends and distributions
From Completion the Purchaser shall be entitled to receive all dividends
and distributions declared, paid or made by the Company in respect of the
Shares on or after 1 November 1997.
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3.3 Sale of all Shares
The Purchaser shall not be obliged to complete the purchase of any of the
Shares hereunder unless the purchase of all the Shares is completed
simultaneously.
4. Consideration
4.1 Consideration
The consideration for the Shares shall be:
4.1.1 the sum of 'L'5,361,051 payable in cash; and
4.1.2 the sum of 'L'8,931,614 to be satisfied by the issue of the Purchase
Notes.
4.2 Entitlement to consideration
The consideration shall be allocated such that:
4.2.1 the Cash Consideration shall belong to the Vendors in the proportions
set opposite their respective names in column (3) of schedule 1; and
4.2.2 the Purchase Notes shall be issued to the Vendors in the proportions
set opposite their respective names in column (4) of schedule 1.
4.3 Further consideration
As further consideration for the Shares purchased from Anthony David
Galley, the Purchaser hereby undertakes to issue to Anthony David Galley
the EOLN at the time and in respect of the amount referred to in clause 4
of the Earn Out Agreement.
4.4 Reduction in consideration
Any payment made by the Vendors pursuant to the operation of the Deed of
Contribution and clause 10 of the Umbrella Agreement, or any other payment
made pursuant to this Agreement, shall be deemed to be pro tanto a
reduction in the price paid for the Shares under this Agreement.
4.5 Guarantee of Purchase Notes
TCC agrees to guarantee the obligations of the Purchaser in respect of the
Purchase Notes on the terms set out in the Purchase Notes.
5. Completion
5.1 Time and location
Subject as provided in clause 5.4, Completion shall take place at the
offices of the Purchaser's Solicitors on the fifth day following
satisfaction or waiver of the Condition or at such other place and/or on
such other date as may be agreed in writing between the Purchaser and each
of the Vendors.
5.2 Vendors' obligations
At Completion the Vendors shall deliver to the Purchaser each of the
documents listed in part 1 of schedule 2.
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5.3 Purchaser's obligations
Subject to the Vendors complying with their obligations under clause 5.2,
the Purchaser shall at Completion deliver the documents and effect the
actions listed in part 2 of schedule 2.
5.4 TCC's obligations
Subject to the Vendors complying with their obligations under clause 5.2,
TCC shall at Completion deliver the documents and effect the transactions
listed in part 3 of schedule 2.
5.5 Failure to comply
If in any respect material to the Purchaser the provisions of clause 5.2
and part 1 of schedule 2 or if in any respect material to the Vendors the
provisions of clauses 5.3 and 5.4 and parts 2 and 3 of schedule 2 are not
complied with on the date of Completion applicable under clause 5.1, the
Purchaser or, as the case may be, the Vendors shall not be obliged to
complete this Agreement and may:-
5.5.1 defer Completion to a date not more than twenty-eight days after the
date set by clause 5.1 (and so that the provisions of this clause 5.4
shall apply to Completion as so deferred); or
5.5.2 proceed to Completion so far as practicable and without prejudice to
their rights under this Agreement; or
5.5.3 rescind this Agreement without prejudice to their rights and remedies
under this Agreement; or
5.5.4 waive all or any of the requirements contained in clause 5.2 or, as
the case may be, clauses 5.3 and 5.4, at their discretion.
6. Waiver of pre-emption rights
The Vendors by their execution of this Agreement hereby waive any
pre-emption rights in respect of the Shares conferred on them under the
articles of association of the Company or otherwise.
7. RTPA
7.1 If there is any provision of this Agreement, or of any agreement or
arrangement of which this Agreement forms part, which causes or would cause
this Agreement or that agreement or arrangement to be subject to
registration under the RTPA, then that provision shall not take effect
until the day after particulars of this Agreement or of that agreement or
arrangement (as the case may be) have been furnished to the Director
General of Fair Trading pursuant to section 24, RTPA.
7.2 The Purchaser shall furnish such particulars as are referred to in clause
7.1 as soon as is reasonably practicable after the date of this Agreement
and within the time limits specified in the RTPA and the Vendors undertake
to provide such information and assistance as the Purchaser may reasonably
require in connection therewith.
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8. Announcements
8.1 Restrictions on announcements
No announcement shall be made in relation to the subject matter of this
Agreement or a matter ancillary to this Agreement without the prior written
consent of the other party save as may be required by any:-
8.1.1 law;
8.1.2 existing contractual arrangements; or
8.1.3 the Stock Exchange or the Panel on Takeovers and Mergers or any other
applicable regulatory authority to which the Vendors are subject
where such requirement has the force of law,
provided such communication shall be made only after consultation with
the Purchaser.
8.2 Continuing effect
The restrictions contained in this clause shall continue to apply after
Completion without limit in time.
8.3 Legal and regulatory requirements
The Purchaser and the Vendors undertake to provide all such information
known to them or which on reasonable enquiry ought to be known to them as
may reasonably be required by the Vendors or the Purchaser for the purpose
of complying with the requirements of law or of any applicable regulatory
authority to which either party is subject where such requirement has the
force of law.
9. Implied covenants for title and further assurance
9.1 The Law of Property (Miscellaneous Provisions) Act 1994 ("LPMPA") applies
to all dispositions of property made under or pursuant to this Agreement
save that the word "reasonably" shall be deleted from the covenant set out
in section 2(1)(b), LPMPA, and the covenant set out in section 3(1), LPMPA
shall not be qualified by the words "other than any charges, incumbrances
or rights which that person does not and could not reasonably be expected
to know about."
10. Assignment
10.1 No party may assign the benefit of this Agreement whether absolutely or by
way of security except in the case of an absolute assignment of all or part
by the Purchaser to an Affiliate of the Purchaser and provided and so long
as it remains an Affiliate (failing which the benefit of this Agreement
shall no longer be available to such assignee nor to any assignor) save
that the Purchaser may assign such benefit absolutely or by way of security
to a person other than an Affiliate of the Purchaser with the prior consent
in writing of the Vendors such consent not to be unreasonably withheld or
delayed and any purported assignment in contravention of this clause shall
be ineffective.
10.2 Subject to clause 10.1, this Agreement shall be binding upon and ensure for
the benefit of the personal representatives and assigns and successors in
title of each of the parties.
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11. Remedies cumulative
11.1 The rights, powers and remedies provided in this Agreement or expressly
referred to herein are cumulative and do not exclude any rights, powers or
remedies provided by law or by any other document other than this
Agreement.
11.2 Nothing in this Agreement or in any document in the agreed terms shall be
read or construed as excluding any liability or remedy as a result of
fraud.
12. Waiver, variation and release
12.1 No omission to exercise or delay in exercising on the part of any party to
this Agreement any right, power or remedy provided by law or under this
Agreement shall constitute a waiver of such right, power or remedy or any
other right, power or remedy or impair such right, power or remedy. No
single or partial exercise of any such right, power or remedy shall
preclude or impair any other or further exercise thereof or the exercise of
any other right, power or remedy provided by law or under this Agreement.
12.2 Any waiver of any right, power or remedy under this Agreement must be in
writing and may be given subject to any conditions thought fit by the
grantor. Unless otherwise expressly stated any waiver shall be effective
only in the instance and only for the purpose for which it is given.
12.3 No variation to this Agreement shall be of any effect unless it is agreed
in writing and signed by or on behalf of each party.
13. Costs and expense
13.1 General
Save as otherwise stated in this Agreement or in the Umbrella Agreement,
each party shall pay its own costs and expenses in relation to the
negotiation, preparation, execution and carrying into effect of this
Agreement and other agreements forming part of the transaction.
13.2 Group companies to pay no costs
For the avoidance of doubt, neither the Company nor any of its subsidiaries
shall pay any legal or other professional charges and expenses in
connection with any investigation of the affairs of the Company or the
negotiation, preparation, execution and carrying into effect of this
Agreement or any other agreement forming part of the transaction.
14. Notices
14.1 Any communication to be given in connection with the matters contemplated
by this Agreement shall except where expressly provided otherwise be in
writing and shall either be delivered by hand or sent by first class
pre-paid post or sent by air mail. Delivery by courier shall be regarded as
delivery by hand.
14.2 Such communication shall be sent to the address of the relevant party
referred to in this Agreement or to such other address as may previously
have been communicated to the other party in accordance with this clause.
Each communication shall be marked for the attention of the relevant
person.
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14.3 A communication shall be deemed to have been served:-
14.3.1 if delivered by hand at the address referred to in clause 14.2, at
the time of delivery;
14.3.2 if sent by first class pre-paid post to the address referred to in
clause 14.2, at the expiration of two clear days after the time of
posting; and
14.3.3 if sent by air mail to the address referred to in clause 14.2, at
the expiration of five clear days after posting.
If a communication would otherwise be deemed to have been delivered outside
of normal business hours (being 9:30 a.m. to 5:30 p.m. on a Business Day)
in the time zone of the territory of the recipient under the preceding
provisions of this clause, it shall be deemed to have been delivered at the
opening of business on the next Business Day.
14.4 In proving service of the communication, it shall be sufficient to show
that delivery by hand was made or that the envelope containing the
communication was properly addressed and posted as a first class pre-paid
letter or air mail letter.
14.5 A party may notify the other parties to this Agreement of a change to its
name, relevant person or address for the purposes of clause 14.2 PROVIDED
THAT such notification shall only be effective on:-
14.5.1 the date specified in the notification as the date on which the
change is to take place; or
14.5.2 if no date is specified or the date specified is less than five
clear Business Days after the date on which notice is deemed to have
been served, the date falling five clear Business Days after notice
of any such change is deemed to have been given.
14.6 For the avoidance of doubt, the parties agree that the provisions of this
clause shall not apply in relation to the service of Service Documents.
15. Counterparts
15.1 This Agreement may be executed in any number of counterparts and by the
parties on different counterparts, but shall not be effective until each
party has executed at least one counterpart.
15.2 Each counterpart shall constitute an original of this Agreement but all the
counterparts shall together constitute one and the same Agreement.
16. Language
16.1 This Agreement is drawn up in the English language and if this Agreement is
translated into any language other than English, the English language text
shall prevail.
16.2 Each notice, instrument, certificate or other communication to be given by
one party to another hereunder or in connection with this Agreement shall
be in the English language (being the language of negotiation of this
Agreement) and in the event that
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such notice, instrument, certificate or other communication or this
Agreement is translated into any other language, the English language text
shall prevail.
17. Invalidity
Each of the provisions of this Agreement is severable. If any such
provision is or becomes illegal, invalid or unenforceable in any respect
under the law of any jurisdiction, the legality, validity or enforceability
in that jurisdiction of the remaining provisions of this Agreement of that
provision or any other provision of this Agreement, shall not in any way be
affected or impaired thereby.
18. Agreement to continue in full force and effect
This Agreement shall, to the extent that it remains to be performed,
continue in full force and effect notwithstanding Completion.
19. Confidentiality
19.1 The Vendors hereby undertake with the Purchaser that they shall both during
and after the term of this Agreement keep confidential and not directly or
indirectly reveal, report, publish, disclose or transfer or use for their
own or any other purposes Confidential Information except:-
19.1.1 in the circumstances set out in clause 19.2; or
19.1.2 to the extent otherwise expressly permitted by this Agreement; or
19.1.3 with the prior consent in writing of the party to whose affairs such
Confidential Information relates.
19.2 The circumstances referred to in clause 19.1.1 above are:-
19.2.1 where the Confidential Information, before it is furnished to or
comes into the knowledge or possession of any of the Vendors, is in
the public domain; or
19.2.2 where the Confidential Information, after it is furnished to or
comes into the knowledge or possession of the Vendors enters the
public domain otherwise than as a result of (a) a breach by any of
the Vendors of their obligations in this clause 19 or (b) a breach
by the person who disclosed that Confidential Information of his
confidentiality obligation and the relevant Vendor is aware of such
breach; or
19.2.3 if and to the extent that any of the Vendors make disclosure of the
Confidential Information to any person:-
(a) in compliance with any requirement of law; or
(b) in response to a requirement of the Stock Exchange or the Panel
on Take-overs and Mergers or any other applicable regulatory
authority to which any of the Vendors are subject where such
requirement has the force of law; or
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(c) in order to obtain tax or other clearances or consents from the
Inland Revenue or other relevant taxing or regulatory
authorities; or
19.2.4 to the consultants and professional advisers of the Vendors, in each
case on the basis that they will comply with the Vendors'
obligations of confidence hereunder,
PROVIDED THAT any such information disclosable pursuant to clauses 19.2.3
(a), (b) or (c) shall be disclosed to the extent permitted by law and only
after consultation with the other party.
19.3 The restrictions contained in this clause shall continue to apply after the
Completion without limit in time.
20. Governing law and jurisdiction
20.1 English law
This Agreement shall be governed by and construed in accordance with
English law.
20.2 Courts of England and Wales
The parties to this Agreement irrevocably agree that the courts of England
shall have non-exclusive jurisdiction to settle any dispute which may arise
out of or in connection with this Agreement and that accordingly any
Proceedings may be brought in such courts.
20.3 Acceptance by Vendors
For the avoidance of doubt, the Vendors expressly and specifically agree
and accept the terms of this clause and sign below in recognition of this
fact.
AS WITNESS the hands of the parties or their duly authorised representatives on
the date first appearing at the head of this Agreement.
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Schedule 1
The Vendors
(1) (2) (3) (4)
Name and Number of Shares Entitlement to Entitlement to
address and Cash Purchase
facsimile number Consideration ('L') Notes ('L')
(if any)
Geoffrey Harrison Galley 221,303 3,080,171 2,053,447
Red Lodge,
The Close,
Totteridge,
London N20 8PJ
Anthony David Galley 261,302 1,515,371 2,046,113
Beacon Wey,
The Hangers,
Bishops Waltham, SO32 1FZ
Wilfred Trevor Brooker 208,303 Nil 4,832,054
Grimbles Barn,
Buckland Village,
Aston Clinton,
Buckinghamshire HP22 5HY
Brooker Family Trust 33,000 765,509 Nil
Grimbles Barn,
Buckland Village,
Aston Clinton,
Buckinghamshire HP22 5HY
------- --------- ---------
Totals 723,908 5,361,051 8,931,614
------- --------- ---------
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<PAGE>
<PAGE>
Schedule 2
Completion
Part 1 - Delivery of documents by Vendors
On Completion, the Vendors shall deliver to the Purchaser:-
1. transfers of such of the Shares as are held by each of the Vendors duly
executed by the registered holder in favour of the Purchaser or its
nominee(s) together with the relevant share certificates in the name of the
registered holder;
2. a counterpart of the Deed of Contribution duly executed by the Vendors;
3. a counterpart of the Subordination Agreement duly executed by those Vendors
who receive Purchase Notes;
4. the Service Agreements duly executed by A. Galley and T. Brooker;
5. the Non Competition Agreements duly executed by the Vendors;
6. the OSI Indemnity duly executed by those Vendors who are to be a party to
it;
7. such waivers, consents or other documents (including any power of attorney
under which any document required to be delivered under part 1 of this
schedule 2 has been executed) in the agreed terms to enable the Purchaser
and its nominee(s) to be registered as the holders of the Shares sold by
the Vendors; and
8. an irrevocable power of attorney in the agreed terms executed by each of
the Vendors in favour of the Purchaser or its nominee(s) to enable the
beneficiary (pending registration of the transfers of the Shares sold by
the Vendors) to exercise all voting and other rights attaching to the
Shares sold by the Vendors and to appoint proxies for this purpose.
Part 2 - Delivery of documents and actions by the Purchaser
Subject as provided in clause 5.3, on Completion the Purchaser
shall:-
1. pay the Cash Consideration by way of electronic transfer for same day value
to the Vendors' Solicitors who are irrevocably authorised to receive the
same and whose receipt shall be an effective discharge of the Purchaser's
obligation to pay such sum and the Purchaser shall not be concerned to see
to the application or be answerable for the loss or misapplication of such
sums;
2. deliver certificates in respect of the Purchase Notes, duly issued, to such
of the Vendors as are to receive the same;
3. deliver a counterpart of the Deed of Contribution, duly executed by the
Purchaser;
4. counterparts of the Non Competition Agreements duly executed by the
Purchaser;
5. deliver to each of the Vendors a copy of the minutes of a meeting of the
directors of the Purchaser:
5.1 authorising the execution of this Agreement and related documents
(such copy minutes being certified as correct by an officer of the
Purchaser); and
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<PAGE>
5.2 resolving to create and issue the Purchase Notes.
Part 3 - Delivery of documents and actions by TCC
Subject as provided in clause 5.4, on Completion TCC shall:
1. execute the instrument constituting the Purchase Notes by way of
guaranteeing the obligations of the Purchaser thereunder;
2. deliver a counterpart of the Deed of Contribution duly executed by TCC;
3. deliver a counterpart of the Subordination Agreement duly executed by TCC;
4. deliver a counterpart of the OSI Indemnity duly executed by TCC;
5. deliver to the Vendors a copy of the minutes of a meeting of the directors
of TCC authorising the execution of:
5.1 the instrument constituting the Purchase Notes; and
5.2 this Agreement.
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<PAGE>
<PAGE>
Schedule 3
Documents in the agreed terms
Consents, waivers and powers of attorney re: sale of Shares
Deed of Contribution
Non Competition Agreements
OSI Indemnity
Powers of Attorney
Purchase Notes
Service Agreements
Subordination Agreement
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<PAGE>
<PAGE>
Schedule 4
Conduct of business pending Completion
(i) The business of the Company will be carried on as a going concern and in
the normal course.
(ii) No physical assets of the Company shall be removed from any property of
the Company save in the ordinary course of normal day to day trading.
(iii) The Vendors will use all reasonable endeavours to maintain the trade and
trade connections of the Company.
(iv) All debts which the Company incurs in the normal course of the business
will be settled within the applicable periods of credit.
(v) The Company will not enter into modify or agree to terminate any material
contract (other than in the ordinary course of business) or incur any
capital expenditure on any individual item for an amount in excess of
'L'100,000.
(vi) The Company will not appoint or employ any new employees or consultants
at an annual salary or rate of remuneration in excess of 'L'30,000.
(vii) The Company will not alter materially or agree to alter materially the
terms and conditions of employment (including benefits) of any of its
employees and no Vendor will induce or endeavour to induce any of such
employees to terminate their employment prior to Completion other than
for a justifiable reason.
(viii) The Company will not dispose of any material assets used or required for
the operation of the business of the Company (otherwise than in the
ordinary course of business) or enter into any other transaction
otherwise than in the ordinary course of business.
(ix) The Company will not create any mortgages, charges, or other encumbrances
over its assets or undertakings nor give any guarantees or indemnities in
respect of any third party otherwise than in the ordinary course of
businesses.
(x) Save for debt collection in the ordinary course of business, the Company
will not institute, settle or agree to settle any legal proceedings
relating to the business of the Company.
(xi) The Company will not grant or modify or agree to terminate any rights or
enter into any agreement relating to intellectual property or otherwise
permit any of its rights relating to the intellectual property to lapse.
(xii) The Purchaser will be given full details of any material changes in the
business, financial position and/or assets of the Company from the date
hereof prior to Completion.
(xvi) All the insurance policies of the Company shall be continued for at least
the same amount and on no less favourable terms than as before.
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<PAGE>
SIGNED by Geoffrey Harrison Galley )
in the presence of:- )
SIGNED by Anthony David Galley )
in the presence of:- )
)
SIGNED by Wilfred Trevor Brooker )
in the presence of:- )
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<PAGE>
SIGNED by )
)
for and on behalf of )
THE BROOKER FAMILY TRUST )
in the presence of:- )
SIGNED by )
)
for and on behalf of )
ASPECT VISION HOLDINGS LIMITED )
in the presence of:- )
SIGNED by )
)
for and on behalf of )
THE COOPER COMPANIES, INC. )
in the presence of:- )
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<PAGE>
<PAGE>
EXHIBIT 2.3
Dated November 1997
IAN ARTHUR MCDERMOTT (AND OTHERS) (1)
ASPECT VISION HOLDINGS LIMITED (2)
AND
THE COOPER COMPANIES, INC. (3)
----------------------------------------------
Agreement
for the sale and purchase
of 34.17% of the issued share capital
of ASPECT VISION CARE LIMITED
----------------------------------------------
CAMERON MCKENNA
MITRE HOUSE
160 ALDERSGATE STREET
LONDON EC1A 4DD
T + 44(0)171-367 3000
F + 44(0)171-367 2000
<PAGE>
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
1. Definitions and interpretation....................................1
2. Condition.........................................................4
3. Sale and purchase.................................................4
4. Consideration.....................................................4
5. Completion........................................................5
6. Waiver of pre-emption rights......................................6
7. RTPA..............................................................6
8. Announcements.....................................................6
9. Implied covenants for title and further assurance.................7
10. Assignment........................................................7
11. Remedies cumulative...............................................7
12. Waiver, variation and release.....................................8
13. Costs and expense.................................................8
14. Notices...........................................................8
15. Counterparts......................................................9
16. Language..........................................................9
17. Invalidity........................................................9
18. Agreement to continue in full force and effect...................10
19. Confidentiality..................................................10
20. Governing law and jurisdiction...................................11
Schedule 1 The Vendors...............................................12
Schedule 2 Completion Part 1 - Delivery of documents by Vendors......14
Part 2 - Delivery of documents and actions by the Purchaser...14
Part 3 - Delivery of documents and actions by TCC.............15
Schedule 3 Documents in the agreed terms.............................16
Schedule 4 Conduct of business pending Completion....................17
</TABLE>
<PAGE>
<PAGE>
THIS AGREEMENT is made the day of November 1997
BETWEEN:-
(1) The persons whose names and addresses are set out in COLUMN 1 of
SCHEDULE 1 (the "Vendors"); and
(2) ASPECT VISION HOLDINGS LIMITED (registered in England with number 3448379)
whose registered office is at Mitre House, 160 Aldersgate Street, London
EC1A 4DD (the "Purchaser"); and
(3) THE COOPER COMPANIES, INC. a company incorporated in Delaware whose
principal office is at 6140 Stoneridge Mall Road, Suite 590,
Pleasanton CA 94588 USA ("TCC").
WHEREAS:-
(A) The Vendors are each shareholders in the Company.
(B) The Purchaser wishes to purchase 34.17% of the issued share capital of the
Company from the Vendors and the Vendors have each agreed to sell their
respective shareholdings in the Company in each case upon and subject to
the terms and conditions of this Agreement.
WHEREBY IT IS AGREED as follows:-
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following words and expressions have the
meanings set opposite them:
"AFFILIATE": in relation to any body corporate, any
Holding Company or subsidiary undertaking of
such body corporate or any subsidiary
undertaking of a Holding Company of such body
corporate;
"AGREEMENT": this Agreement including its recitals and the
schedules hereto;
"BUSINESS DAY": a weekday (other than a Saturday) when banks
are open for business in London;
"CA 85": Companies Act 1985;
"CASH CONSIDERATION": the cash consideration payable for the Shares
as specified in CLAUSE 4.1;
"COMPANY": means Aspect Vision Care Limited, a company
registered in England and Wales under number
01134463 whose registered office is at Unit
2, South Point, Hamble, Southampton,
Hampshire, SO31 4RF;
"COMPLETION": completion of the sale and purchase of the
Shares pursuant to this Agreement;
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<PAGE>
"CONDITION" the condition referred to in CLAUSE 2.1;
"CONFIDENTIAL INFORMATION": all information received or obtained by the
Vendors or supplied to the Vendors in the
negotiations leading to this Agreement and
which relates to TCC or any of its
subsidiaries;
"DEED OF CONTRIBUTION": the deed of contribution in the agreed terms
to be entered into at Completion between the
Purchaser, the Vendors and others;
"ENCUMBRANCE": any interest or equity of any person
(including any right to acquire, option or
right of pre-emption) or any mortgage,
charge, pledge, lien, assignment,
hypothecation, security interest, title
retention or any other security agreement or
arrangement;
"HOLDING COMPANY": a holding company within the meaning ascribed
to such expression by sections 736 and 736A,
CA 85;
"NON COMPETITION the agreements in the agreed terms to be
AGREEMENTS": entered into at Completion between the
Purchaser and the Vendors relating to the
protection of the goodwill of the business
of the Company;
"PROCEEDINGS": any proceeding, suit or action arising out of
or in connection with this Agreement;
"OSI INDEMNITY": the indemnity agreement in the agreed terms
to be entered into at Completion between TCC,
A Galley, G Galley, B Bevis, I Atkinson, A
Morland and W Brooker;
"PURCHASE NOTES": the loan notes in the agreed terms to be
issued to the Vendors at Completion by the
Purchaser and guaranteed by TCC;
"PURCHASER'S SOLICITORS": Cameron McKenna of Mitre House, 160
Aldersgate Street, London EC1A 4DD;
"RTPA": Restrictive Trade Practices Act 1976;
"SHARES": the shares in the capital of the Company set
out in COLUMN (2) of SCHEDULE 1;
"SERVICE AGREEMENTS": the service agreements in the agreed terms to
be entered into between Aspect Vision Care
Limited and each of I. McDermott, R. Poole,
B. Bevis and I. Atkinson;
"SERVICE DOCUMENT": a writ, summons, order, judgment or other
document relating to or in connection with
any Proceedings;
"STOCK EXCHANGE": London Stock Exchange Limited;
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<PAGE>
"SUBORDINATION AGREEMENT": the subordination agreement in the agreed
terms to be entered into at Completion
between TCC, Keybank National Association and
the holders of the Purchase Notes;
"SUBSIDIARY": a subsidiary within the meaning ascribed to
such expression by sections 736 and 736A, CA
85;
"SUBSIDIARY UNDERTAKING": a subsidiary undertaking within the meaning
ascribed to such expression by section 258,
CA 85;
"UMBRELLA AGREEMENT": the umbrella agreement of even date herewith
relating to, inter alia, the sale and
purchase of the Shares and entered into
between the Purchaser, Mr Anthony D. Galley
and TCC;
"VAT": value added tax;
"VENDORS' SOLICITORS": Travers Smith Braithwaite of 10 Snow Hill,
London, EC1A 2AL; and
"IN THE AGREED TERMS": in the form agreed between the Vendors and
the Purchasers and signed for the purposes of
identification by or on behalf of each party.
1.2 The table of contents and headings in this Agreement are inserted for
convenience only and shall not affect its construction.
1.3 Unless the context otherwise requires words denoting the singular shall
include the plural and vice versa, references to any gender shall include
all other genders and references to persons shall include bodies
corporate, unincorporated associations and partnerships in each case
whether or not having a separate legal personality. References to the word
"include" or "including" are to be construed without limitation.
1.4 References to recitals, schedules and clauses are to recitals and
schedules to and clauses of this Agreement unless otherwise specified and
references within a schedule to paragraphs are to paragraphs of that
schedule unless otherwise specified.
1.5 References in this Agreement to any statute, statutory provision or EC
Directive include a reference to that statute, statutory provision or EC
Directive as amended, extended, consolidated or replaced from time to time
(whether before or after the date of this Agreement) and include any
order, regulation, instrument or other subordinate legislation made under
the relevant statute, statutory provision or EC Directive.
1.6 References to any English legal term for any action, remedy, method of
judicial proceeding, legal document, legal status, court, official or any
legal concept or thing shall in respect of any jurisdiction other than
England be deemed to include that which most approximates in that
jurisdiction to the English legal term.
1.7 Any reference to "writing" or "written" includes faxes and any
non-transitory form of visible reproduction of words.
1.8 References to times of the day are to London time and references to a day
are to a period of 24 hours running from midnight to midnight.
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<PAGE>
2. CONDITION
2.1 Condition precedent
Subject to CLAUSE 2.3, this Agreement is subject to and conditional upon
satisfaction of the condition in the Umbrella Agreement.
2.2 Time limit for satisfaction of Condition
If the condition in CLAUSE 2.1 has not been fulfilled or waived (by mutual
agreement of the parties) by 31 December 1997 (or by such later date as
may be agreed in writing between the parties) this Agreement shall
thereupon become null and void ab initio and none of the parties shall
have any rights against any other party hereunder.
2.3 Operative provisions
Notwithstanding CLAUSE 2.1, CLAUSES 8, 10-16 (inclusive), 19 and 20 shall
come into force on the execution and exchange of this Agreement and the
remainder of this Agreement shall come into force on the fulfilment and/or
waiver of the Condition.
2.4 Conduct of business pending Completion
Each of the Vendors hereby undertakes to the Purchaser to procure, to the
extent that they are able, that the Company is run as set out in SCHEDULE
4 in respect of the period prior to Completion.
3. SALE AND PURCHASE
3.1 Obligation to sell and purchase and free from Encumbrances
Subject to the terms of this Agreement each of the Vendors shall sell,
with effect from 1 November 1997, with full title guarantee and free from
Encumbrances those Shares set opposite his name in COLUMN (2) of SCHEDULE
1 and the Purchaser shall purchase such Shares together with all rights
attaching thereto with effect from 1 November 1997.
3.2 Dividends and distributions
From Completion the Purchaser shall be entitled to receive all dividends
and distributions declared, paid or made by the Company in respect of the
Shares on or after 1 November 1997.
3.3 Sale of all Shares
The Purchaser shall not be obliged to complete the purchase of any of the
Shares hereunder unless the purchase of all the Shares is completed
simultaneously.
4. CONSIDERATION
4.1 Consideration
The consideration for the Shares shall be:
4.1.1 the sum of 'L'4,370,070 payable in cash; and
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<PAGE>
4.1.2 the sum of 'L'5,352,000 to be satisfied by the issue of the
Purchase Notes.
4.2 Entitlement to consideration
The consideration shall be allocated such that:
4.2.1 the Cash Consideration shall belong to the Vendors in the
proportions set opposite their respective names in COLUMN (3) of
SCHEDULE 1; and
4.2.2 the Purchase Notes shall be issued to the Vendors in the
proportions set opposite their respective names in COLUMN (4) of
SCHEDULE 1.
4.3 Reduction in consideration
Any payment made by the Vendors pursuant to the operation of the Deed of
Contribution and clause 10 of the Umbrella Agreement, or any other
payment made pursuant to this Agreement, shall be deemed to be pro tanto
a reduction in the price paid for the Shares under this Agreement.
4.4 Guarantee of Purchase Notes
TCC agrees to guarantee the obligations of the Purchaser in respect of
the Purchase Notes on the terms set out in the Purchase Notes.
5. COMPLETION
5.1 Time and location
Subject as provided in CLAUSE 5.4, Completion shall take place at the
offices of the Purchaser's Solicitors on the fifth day following
satisfaction or waiver of the Condition or at such other place and/or on
such other date as may be agreed in writing between the Purchaser and
each of the Vendors.
5.2 Vendors' obligations
At Completion the Vendors shall deliver to the Purchaser each of the
documents listed in PART 1 of SCHEDULE 2.
5.3 Purchaser's obligations
Subject to the Vendors complying with their obligations under CLAUSE 5.2,
the Purchaser shall at Completion deliver the documents and effect the
actions listed in PART 2 of SCHEDULE 2.
5.4 TCC's obligations
Subject to the Vendors complying with their obligations under CLAUSE 5.2,
TCC shall at Completion deliver the documents and effect the transactions
listed in PART 3 of SCHEDULE 2.
5.5 Failure to comply
If in any respect material to the Purchaser the provisions of CLAUSE 5.2
and PART 1 of SCHEDULE 2 or if in any respect material to the Vendors the
provisions of CLAUSES 5.3 and 5.4 and PARTS 2 and 3 of SCHEDULE 2 are not
complied with on the date of
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Completion applicable under CLAUSE 5.1, the Purchaser or, as the case may
be, the Vendors shall not be obliged to complete this Agreement and may:-
5.5.1 defer Completion to a date not more than twenty-eight days after
the date set by CLAUSE 5.1 (and so that the provisions of this
CLAUSE 5.4 shall apply to Completion as so deferred); or
5.5.2 proceed to Completion so far as practicable and without prejudice
to their rights under this Agreement; or
5.5.3 rescind this Agreement without prejudice to their rights and
remedies under this Agreement; or
5.5.4 waive all or any of the requirements contained in CLAUSE 5.2 or, as
the case may be, CLAUSES 5.3 and 5.4, at their discretion.
6. WAIVER OF PRE-EMPTION RIGHTS
The Vendors by their execution of this Agreement hereby waive any
pre-emption rights in respect of the Shares conferred on them under the
articles of association of the Company or otherwise.
7. RTPA
7.1 If there is any provision of this Agreement, or of any agreement or
arrangement of which this Agreement forms part, which causes or would
cause this Agreement or that agreement or arrangement to be subject to
registration under the RTPA, then that provision shall not take effect
until the day after particulars of this Agreement or of that agreement or
arrangement (as the case may be) have been furnished to the Director
General of Fair Trading pursuant to section 24, RTPA.
7.2 The Purchaser shall furnish such particulars as are referred to in CLAUSE
7.1 as soon as is reasonably practicable after the date of this Agreement
and within the time limits specified in the RTPA and the Vendors
undertake to provide such information and assistance as the Purchaser may
reasonably require in connection therewith.
8. ANNOUNCEMENTS
8.1 Restrictions on announcements
No announcement shall be made in relation to the subject matter of this
Agreement or a matter ancillary to this Agreement without the prior
written consent of the other party save as may be required by any:-
8.1.1 law;
8.1.2 existing contractual arrangements; or
8.1.3 the Stock Exchange or the Panel on Takeovers and Mergers or any
other applicable regulatory authority to which the Vendors are
subject where such requirement has the force of law,
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<PAGE>
provided such communication shall be made only after consultation with
the Purchaser.
8.2 Continuing effect
The restrictions contained in this clause shall continue to apply after
Completion without limit in time.
8.3 Legal and regulatory requirements
The Purchaser and the Vendors undertake to provide all such information
known to them or which on reasonable enquiry ought to be known to them as
may reasonably be required by the Vendors or the Purchaser for the
purpose of complying with the requirements of law or of any applicable
regulatory authority to which either party is subject where such
requirement has the force of law.
9. IMPLIED COVENANTS FOR TITLE AND FURTHER ASSURANCE
9.1 The Law of Property (Miscellaneous Provisions) Act 1994 ("LPMPA") applies
to all dispositions of property made under or pursuant to this Agreement
save that the word "reasonably" shall be deleted from the covenant set
out in section 2(1)(b), LPMPA, and the covenant set out in section 3(1),
LPMPA shall not be qualified by the words "other than any charges,
incumbrances or rights which that person does not and could not
reasonably be expected to know about."
10. ASSIGNMENT
10.1 No party may assign the benefit of this Agreement whether absolutely or
by way of security except in the case of an absolute assignment of all or
part by the Purchaser to an Affiliate of the Purchaser and provided and
so long as it remains an Affiliate (failing which the benefit of this
Agreement shall no longer be available to such assignee nor to any
assignor) save that the Purchaser may assign such benefit absolutely or
by way of security to a person other than an Affiliate of the Purchaser
with the prior consent in writing of the Vendors such consent not to be
unreasonably withheld or delayed and any purported assignment in
contravention of this clause shall be ineffective.
10.2 Subject to CLAUSE 10.1, this Agreement shall be binding upon and ensure
for the benefit of the personal representatives and assigns and
successors in title of each of the parties.
11. REMEDIES CUMULATIVE
11.1 The rights, powers and remedies provided in this Agreement or expressly
referred to herein are cumulative and do not exclude any rights, powers
or remedies provided by law or by any other document other than this
Agreement.
11.2 Nothing in this Agreement or in any document in the agreed terms shall be
read or construed as excluding any liability or remedy as a result of
fraud.
12. WAIVER, VARIATION AND RELEASE
12.1 No omission to exercise or delay in exercising on the part of any party
to this Agreement any right, power or remedy provided by law or under
this Agreement shall
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constitute a waiver of such right, power or remedy or any other right,
power or remedy or impair such right, power or remedy. No single or
partial exercise of any such right, power or remedy shall preclude or
impair any other or further exercise thereof or the exercise of any other
right, power or remedy provided by law or under this Agreement.
12.2 Any waiver of any right, power or remedy under this Agreement must be in
writing and may be given subject to any conditions thought fit by the
grantor. Unless otherwise expressly stated any waiver shall be effective
only in the instance and only for the purpose for which it is given.
12.3 No variation to this Agreement shall be of any effect unless it is agreed
in writing and signed by or on behalf of each party.
13. COSTS AND EXPENSE
13.1 General
Save as otherwise stated in this Agreement or in the Umbrella Agreement,
each party shall pay its own costs and expenses in relation to the
negotiation, preparation, execution and carrying into effect of this
Agreement and other agreements forming part of the transaction.
13.2 Group companies to pay no costs
For the avoidance of doubt, neither the Company nor any of its
subsidiaries shall pay any legal or other professional charges and
expenses in connection with any investigation of the affairs of the
Company or the negotiation, preparation, execution and carrying into
effect of this Agreement or any other agreement forming part of the
transaction.
14. NOTICES
14.1 Any communication to be given in connection with the matters contemplated
by this Agreement shall except where expressly provided otherwise be in
writing and shall either be delivered by hand or sent by first class
pre-paid post or sent by air mail. Delivery by courier shall be regarded
as delivery by hand.
14.2 Such communication shall be sent to the address of the relevant party
referred to in this Agreement or to such other address as may previously
have been communicated to the other party in accordance with this clause.
Each communication shall be marked for the attention of the relevant
person.
14.3 A communication shall be deemed to have been served:-
14.3.1 if delivered by hand at the address referred to in CLAUSE 14.2, at
the time of delivery;
14.3.2 if sent by first class pre-paid post to the address referred to in
CLAUSE 14.2, at the expiration of two clear days after the time of
posting; and
14.3.3 if sent by air mail to the address referred to in CLAUSE 14.2, at
the expiration of five clear days after posting.
If a communication would otherwise be deemed to have been delivered
outside of normal business hours (being 9:30 a.m. to 5:30 p.m. on a
Business Day) in the time
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zone of the territory of the recipient under the preceding provisions of
this clause, it shall be deemed to have been delivered at the opening of
business on the next Business Day.
14.4 In proving service of the communication, it shall be sufficient to show
that delivery by hand was made or that the envelope containing the
communication was properly addressed and posted as a first class pre-paid
letter or air mail letter.
14.5 A party may notify the other parties to this Agreement of a change to its
name, relevant person or address for the purposes of CLAUSE 14.2 PROVIDED
THAT such notification shall only be effective on:-
14.5.1 the date specified in the notification as the date on which the
change is to take place; or
14.5.2 if no date is specified or the date specified is less than five
clear Business Days after the date on which notice is deemed to
have been served, the date falling five clear Business Days after
notice of any such change is deemed to have been given.
14.6 For the avoidance of doubt, the parties agree that the provisions of this
clause shall not apply in relation to the service of Service Documents.
15. COUNTERPARTS
15.1 This Agreement may be executed in any number of counterparts and by the
parties on different counterparts, but shall not be effective until each
party has executed at least one counterpart.
15.2 Each counterpart shall constitute an original of this Agreement but all
the counterparts shall together constitute one and the same Agreement.
16. LANGUAGE
16.1 This Agreement is drawn up in the English language and if this Agreement
is translated into any language other than English, the English language
text shall prevail.
16.2 Each notice, instrument, certificate or other communication to be given
by one party to another hereunder or in connection with this Agreement
shall be in the English language (being the language of negotiation of
this Agreement) and in the event that such notice, instrument,
certificate or other communication or this Agreement is translated into
any other language, the English language text shall prevail.
17. INVALIDITY
Each of the provisions of this Agreement is severable. If any such
provision is or becomes illegal, invalid or unenforceable in any respect
under the law of any jurisdiction, the legality, validity or
enforceability in that jurisdiction of the remaining provisions of this
Agreement of that provision or any other provision of this Agreement,
shall not in any way be affected or impaired thereby.
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18. AGREEMENT TO CONTINUE IN FULL FORCE AND EFFECT
This Agreement shall, to the extent that it remains to be performed,
continue in full force and effect notwithstanding Completion.
19. CONFIDENTIALITY
19.1 The Vendors hereby undertake with the Purchaser that they shall both
during and after the term of this Agreement keep confidential and not
directly or indirectly reveal, report, publish, disclose or transfer or
use for their own or any other purposes Confidential Information except:-
19.1.1 in the circumstances set out in CLAUSE 19.2; or
19.1.2 to the extent otherwise expressly permitted by this Agreement; or
19.1.3 with the prior consent in writing of the party to whose affairs
such Confidential Information relates.
19.2 The circumstances referred to in CLAUSE 19.1.1 above are:-
19.2.1 where the Confidential Information, before it is furnished to or
comes into the knowledge or possession of any of the Vendors, is
in the public domain; or
19.2.2 where the Confidential Information, after it is furnished to or
comes into the knowledge or possession of the Vendors enters the
public domain otherwise than as a result of (a) a breach by any of
the Vendors of their obligations in this CLAUSE 19 or (b) a breach
by the person who disclosed that Confidential Information of his
confidentiality obligation and the relevant Vendor is aware of
such breach; or
19.2.3 if and to the extent that any of the Vendors make disclosure of
the Confidential Information to any person:
(a) in compliance with any requirement of law; or
(b) in response to a requirement of the Stock Exchange or the
Panel on Take-overs and Mergers or any other applicable
regulatory authority to which any of the Vendors are subject
where such requirement has the force of law; or
(c) in order to obtain tax or other clearances or consents from
the Inland Revenue or other relevant taxing or regulatory
authorities; or
19.2.4 to the consultants and professional advisers of the Vendors, in
each case on the basis that they will comply with the Vendors'
obligations of confidence hereunder,
PROVIDED THAT any such information disclosable pursuant to CLAUSES 19.2.3
(A), (B) OR (C) shall be disclosed to the extent permitted by law and
only after consultation with the other party.
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<PAGE>
<PAGE>
19.3 The restrictions contained in this clause shall continue to apply after
the Completion without limit in time.
20. GOVERNING LAW AND JURISDICTION
20.1 English law
This Agreement shall be governed by and construed in accordance with
English law.
20.2 Courts of England and Wales
The parties to this Agreement irrevocably agree that the courts of
England shall have non-exclusive jurisdiction to settle any dispute which
may arise out of or in connection with this Agreement and that
accordingly any Proceedings may be brought in such courts.
20.3 Acceptance by Vendors
For the avoidance of doubt, the Vendors expressly and specifically agree
and accept the terms of this clause and sign below in recognition of this
fact.
AS WITNESS the hands of the parties or their duly authorised representatives on
the date first appearing at the head of this Agreement.
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<PAGE>
<PAGE>
SCHEDULE 1
THE VENDORS
<TABLE>
<CAPTION>
(1) (2) (3) (4)
Name and Number of Shares Entitlement to Entitlement to
address and Cash Purchase
facsimile number (if any) Consideration ('L') Notes ('L')
<S> <C> <C> <C>
JOHN TREVOR DE CARLE 183,048 2,115,876 1,410,584
Lowicks House
Sandy Lane
Tilford
Farnham
Surrey GU10 2BX
CLIVE DE CARLE 62,160 999,164 176,323
Finca Alcazar
Conchar
PO Box 34
Durcal
Granada
Spain
IAN ARTHUR MCDERMOTT 97,680 461,798 1,385,395
75 Upper Barn Copse
Fair Oak
Eastleigh
Hampshire SO50 8DB
R. B. POOLE 97,680 461,798 1,385,395
61 Deans Way
Tarvin</TABLE>
-12-
<PAGE>
<PAGE>
<TABLE>
<S> <C> <C> <C>
Chester
Cheshire CH3 8LX
BARRIE BEVIS 60,421 265,147 795,442
53 Wilderness Heights
West End
Southampton
Hampshire SO18 3PS
IVOR ATKINSON 15,105 66,287 198,861
90 Queens Drive
Surbiton
Surrey KT5 8PP
------- --------- ---------
Totals 516,094 4,370,070 5,352,000
------- --------- ---------
</TABLE>
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<PAGE>
<PAGE>
SCHEDULE 2
COMPLETION
PART 1 - DELIVERY OF DOCUMENTS BY VENDORS
On Completion, the Vendors shall deliver to the Purchaser:-
1. transfers of such of the Shares as are held by each of the Vendors duly
executed by the registered holder in favour of the Purchaser or its
nominee(s) together with the relevant share certificates in the name of the
registered holder;
2. a counterpart of the Deed of Contribution duly executed by the Vendors;
3. a counterpart of the Subordination Agreement duly executed by those Vendors
who receive Purchase Notes;
4. the Service Agreements duly executed by I. Atkinson, R. Poole, B. Bevis and
I. McDermott;
5. the Non Competition Agreements duly executed by the Vendors;
6. the OSI Indemnity duly executed by those Vendors who are to be a party to
it;
7. such waivers, consents or other documents (including any power of attorney
under which any document required to be delivered under PART 1 of this
SCHEDULE 2 has been executed) in the agreed terms to enable the Purchaser
and its nominee(s) to be registered as the holders of the Shares sold by
the Vendors; and
8. an irrevocable power of attorney in the agreed terms executed by each of
the Vendors in favour of the Purchaser or its nominee(s) to enable the
beneficiary (pending registration of the transfers of the Shares sold by
the Vendors) to exercise all voting and other rights attaching to the
Shares sold by the Vendors and to appoint proxies for this purpose.
PART 2 - DELIVERY OF DOCUMENTS AND ACTIONS BY THE PURCHASER
Subject as provided in CLAUSE 5.3, on Completion the Purchaser shall:-
1. pay the Cash Consideration by way of electronic transfer for same day value
to the Vendors' Solicitors who are irrevocably authorised to receive the
same and whose receipt shall be an effective discharge of the Purchaser's
obligation to pay such sum and the Purchaser shall not be concerned to see
to the application or be answerable for the loss or misapplication of such
sums;
2. deliver certificates in respect of the Purchase Notes, duly issued, to such
of the Vendors as are to receive the same;
3. counterparts of the Non Competition Agreements duly executed by the
Purchaser;
4. deliver a counterpart of the Deed of Contribution duly executed by the
Purchaser;
5. deliver to each of the Vendors a copy of the minutes of a meeting of the
directors of the Purchaser:
5.1 authorising the execution of this Agreement and related documents; and
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<PAGE>
<PAGE>
5.2 resolving to create and issue the Purchase Notes.
PART 3 - DELIVERY OF DOCUMENTS AND ACTIONS BY TCC
Subject as provided in CLAUSE 5.4, on Completion TCC shall:
1. execute the instrument constituting the Purchase Notes by way of
guaranteeing the obligations of the Purchaser thereunder;
2. deliver a counterpart of the Subordination Agreement duly executed by TCC;
3. deliver a counterpart of the Deed of Contribution duly executed by TCC;
4. deliver a counterpart of the OSI Indemnity duly executed by TCC;
5. deliver to the Vendors a copy of the minutes of a meeting of the directors
of TCC authorising the execution of:
5.1 the instrument constituting the Purchase Notes; and
5.2 this Agreement.
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<PAGE>
<PAGE>
SCHEDULE 3
DOCUMENTS IN THE AGREED TERMS
Consents, waivers and powers of attorney re: sale of Shares
Deed of Contribution
Non Competition Agreements
OSI Indemnity
Powers of Attorney
Purchase Notes
Service Agreements
Subordination Agreement
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<PAGE>
<PAGE>
SCHEDULE 4
CONDUCT OF BUSINESS PENDING COMPLETION
(i) The business of the Company will be carried on as a going concern and in
the normal course.
(ii) No physical assets of the Company shall be removed from any property of
the Company save in the ordinary course of normal day to day trading.
(iii) The Vendors will use all reasonable endeavours to maintain the trade and
trade connections of the Company.
(iv) All debts which the Company incurs in the normal course of the business
will be settled within the applicable periods of credit.
(v) The Company will not enter into modify or agree to terminate any material
contract (other than in the ordinary course of business) or incur any
capital expenditure on any individual item for an amount in excess of
(pound)100,000.
(vi) The Company will not appoint or employ any new employees or consultants
at an annual salary or rate of remuneration in excess of (pound)30,000.
(vii) The Company will not alter materially or agree to alter materially the
terms and conditions of employment (including benefits) of any of its
employees and no Vendor will induce or endeavour to induce any of such
employees to terminate their employment prior to Completion other than
for a justifiable reason.
(viii) The Company will not dispose of any material assets used or required for
the operation of the business of the Company (otherwise than in the
ordinary course of business) or enter into any other transaction
otherwise than in the ordinary course of business.
(ix) The Company will not create any mortgages, charges, or other encumbrances
over its assets or undertakings nor give any guarantees or indemnities in
respect of any third party otherwise than in the ordinary course of
businesses.
(x) Save for debt collection in the ordinary course of business, the Company
will not institute, settle or agree to settle any legal proceedings
relating to the business of the Company.
(xi) The Company will not grant or modify or agree to terminate any rights or
enter into any agreement relating to intellectual property or otherwise
permit any of its rights relating to the intellectual property to lapse.
(xii) The Purchaser will be given full details of any material changes in the
business, financial position and/or assets of the Company from the date
hereof prior to Completion.
(xvi) All the insurance policies of the Company shall be continued for at least
the same amount and on no less favourable terms than as before.
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<PAGE>
<PAGE>
SIGNED by JOHN TREVOR DE CARLE )
in the presence of:- )
SIGNED by CLIVE DE CARLE )
in the presence of:- )
SIGNED by IAN ARTHUR MCDERMOTT )
in the presence of:- )
SIGNED by R. B. POOLE )
in the presence of:- )
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<PAGE>
<PAGE>
SIGNED by BARRIE BEVIS )
in the presence of:- )
SIGNED by IVOR ATKINSON )
in the presence of:- )
SIGNED by )
)
for and on behalf of )
ASPECT VISION HOLDINGS LIMITED )
in the presence of:- )
SIGNED by )
)
for and on behalf of )
THE COOPER COMPANIES, INC. )
in the presence of:- )
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<PAGE>
<PAGE>
Dated November 1997
ANTHONY DAVID GALLEY (AND OTHERS) (1)
ASPECT VISION HOLDINGS LIMITED (2)
AND
THE COOPER COMPANIES, INC. (3)
----------------------------------------------
Agreement
for the sale and purchase
of the entire issued share capital
of CONTACT LENS TECHNOLOGIES LIMITED
----------------------------------------------
CAMERON MCKENNA
MITRE HOUSE
160 ALDERSGATE STREET
LONDON EC1A 4DD
T + 44(0)171-367 3000
F + 44(0)171-367 2000
<PAGE>
<PAGE>
TABLE OF CONTENTS
1. Definitions and interpretation.....................................1
2. Condition..........................................................4
3. Sale and purchase..................................................4
4. Consideration......................................................5
5. Completion.........................................................5
6. Waiver of pre-emption rights.......................................6
7. RTPA...............................................................6
8. Announcements......................................................7
9. Implied covenants for title and further assurance..................7
10. Assignment........................................................7
11. Remedies cumulative...............................................8
12. Waiver, variation and release.....................................8
13. Costs and expense.................................................8
14. Notices...........................................................9
15. Counterparts......................................................9
16. Language.........................................................10
17. Invalidity.......................................................10
18. Agreement to continue in full force and effect...................10
19. Confidentiality..................................................10
20. Governing law and jurisdiction...................................11
Schedule 1 The Vendors...............................................12
Schedule 2 Completion Part 1 - Delivery of documents by
Vendors..............................................................14
Part 2 - Delivery of documents and actions by the Purchaser..........14
Part 3 - Delivery of documents and actions by TCC....................15
Schedule 3 Documents in the agreed terms.............................16
Schedule 4 Conduct of business pending Completion....................17
<PAGE>
<PAGE>
THIS AGREEMENT is made the day of November 1997
BETWEEN:-
(1) The persons whose names and addresses are set out in
COLUMN 1 of SCHEDULE 1 (the "Vendors"); and
(2) ASPECT VISION HOLDINGS LIMITED (registered in England with number 3448379)
whose registered office is at Mitre House, 160 Aldersgate Street, London
EC1A 4DD (the "Purchaser"); and
(3) THE COOPER COMPANIES, INC. a company incorporated in
Delaware whose principal office is at 6140 Stoneridge
Mall Road, Suite 590, Pleasanton CA 94588 USA ("TCC").
WHEREAS:-
(A) The Vendors are each shareholders in the Company.
(B) The Purchaser wishes to purchase the entire issued share capital of the
Company from the Vendors and the Vendors have each agreed to sell their
respective shareholdings in the Company in each case upon and subject to
the terms and conditions of this Agreement.
WHEREBY IT IS AGREED as follows:-
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following words and expressions have the meanings
set opposite them:
"AFFILIATE": in relation to any body corporate, any
Holding Company or subsidiary undertaking of
such body corporate or any subsidiary
undertaking of a Holding Company of such
body corporate;
"AGREEMENT": this Agreement including its recitals and
the schedules hereto;
"BUSINESS DAY": a weekday (other than a Saturday) when banks
are open for business in London;
"CA 85": Companies Act 1985;
"CASH CONSIDERATION": the cash consideration payable for the
Shares as specified in CLAUSE 4.1;
"COMPANY": means Contact Lens Technologies Limited, a
company registered in England and Wales
under number 02908056 whose registered
office is at Unit 2, South Point, Hamble,
Southampton, Hampshire, SO31 4RF;
"COMPLETION": completion of the sale and purchase of the
Shares pursuant to this Agreement;
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<PAGE>
<PAGE>
"CONDITION" the condition referred to in CLAUSE 2.1;
"CONFIDENTIAL INFORMATION": all information received or obtained by the
Vendors or supplied to the Vendors in the
negotiations leading to this Agreement and
which relates to TCC or any of its
subsidiaries;
"DEED OF CONTRIBUTION": the deed of contribution in the agreed terms
to be entered into at Completion between the
Purchaser, the Vendors and others;
"EARN OUT AGREEMENT" the agreement described as the Earn Out
Agreement to be entered into, at completion
of the Umbrella Agreement, between TCC, the
Purchaser and Anthony David Galley;
"ENCUMBRANCE": any interest or equity of any person
(including any right to acquire, option or
right of pre-emption) or any mortgage,
charge, pledge, lien, assignment,
hypothecation, security interest, title
retention or any other security agreement or
arrangement;
"EOLN": the loan note to be issued by the Purchaser
to Anthony David Galley by way of further
consideration for the Shares purchased from
Anthony David Galley, in accordance with the
terms of the Earn Out Agreement;
"HOLDING COMPANY": a holding company within the meaning
ascribed to such expression by sections 736
and 736A, CA 85;
"NON COMPETITION the agreements in the agreed terms to be
AGREEMENTS": entered into at Completion between the
Purchaser and the Vendors relating to the
protection of the goodwill of the business
of the Company;
"OSI INDEMNITY": the indemnity agreement in the agreed terms
to be entered into at Completion between
TCC, A Galley, G Galley, B Bevis, I
Atkinson, A Morland and W Brooker;
"PATENT LICENCE": the licence in the agreed terms to be
entered into at Completion between the
CooperVision, Inc. and the Patent Owners
relating to the Patents;
"PATENT OWNERS": Anthony David Galley, Geoffrey Harrison
Galley, Albert Morland, Ivor Atkinson and
Barrie Bevis;
"PATENTS": the patents listed in SCHEDULE 4;
"PROCEEDINGS": any proceeding, suit or action arising out
of or in connection with this Agreement;
"PURCHASE NOTES": the loan notes in the agreed terms to be
issued to the Vendors at Completion by the
Purchaser and guaranteed by TCC;
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<PAGE>
<PAGE>
"PURCHASER'S SOLICITORS": Cameron McKenna of Mitre House, 160
Aldersgate Street, London EC1A 4DD;
"RTPA": Restrictive Trade Practices Act 1976;
"SERVICE AGREEMENTS": the service agreements in the agreed terms
to be entered into between Aspect Vision
Care Limited and each of A. Galley, B. Bevis
and I. Atkinson;
"SERVICE DOCUMENT": a writ, summons, order, judgment or other
document relating to or in connection with
any Proceedings;
"SHARES": the shares in the capital of the Company set
out in COLUMN (2) of SCHEDULE 1;
"STOCK EXCHANGE": London Stock Exchange Limited;
"SUBORDINATION AGREEMENT" the subordination agreement in the agreed
terms to be entered into at Completion
between TCC, Keybank National Association
and the holders of the Purchase Notes;
"SUBSIDIARY": a subsidiary within the meaning ascribed to
such expression by sections 736 and 736A, CA
85;
"SUBSIDIARY UNDERTAKING": a subsidiary undertaking within the meaning
ascribed to such expression by section 258,
CA 85;
"UMBRELLA AGREEMENT": the umbrella agreement of even date herewith
relating to, inter alia, the sale and
purchase of the Shares and entered into
between the Purchaser, Mr Anthony David
Galley and TCC;
"VAT": value added tax;
"VENDORS' SOLICITORS": Travers Smith Braithwaite of 10 Snow Hill,
London, EC1A 2AL; and
"IN THE AGREED TERMS": in the form agreed between the Vendors and
the Purchasers and signed for the purposes
of identification by or on behalf of each
party.
1.2 The table of contents and headings in this Agreement are inserted for
convenience only and shall not affect its construction.
1.3 Unless the context otherwise requires words denoting the singular shall
include the plural and vice versa, references to any gender shall include
all other genders and references to persons shall include bodies
corporate, unincorporated associations and partnerships in each case
whether or not having a separate legal personality. References to the word
"include" or "including" are to be construed without limitation.
1.4 References to recitals, schedules and clauses are to recitals and
schedules to and clauses of this Agreement unless otherwise specified and
references within a schedule to paragraphs are to paragraphs of that
schedule unless otherwise specified.
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<PAGE>
<PAGE>
1.5 References in this Agreement to any statute, statutory provision or EC
Directive include a reference to that statute, statutory provision or EC
Directive as amended, extended, consolidated or replaced from time to time
(whether before or after the date of this Agreement) and include any
order, regulation, instrument or other subordinate legislation made under
the relevant statute, statutory provision or EC Directive.
1.6 References to any English legal term for any action, remedy, method of
judicial proceeding, legal document, legal status, court, official or any
legal concept or thing shall in respect of any jurisdiction other than
England be deemed to include that which most approximates in that
jurisdiction to the English legal term.
1.7 Any reference to "writing" or "written" includes faxes and any
non-transitory form of visible reproduction of words.
1.8 References to times of the day are to London time and references to a day
are to a period of 24 hours running from midnight to midnight.
2. CONDITION
2.1 Condition precedent
Subject to CLAUSE 2.3, this Agreement is subject to and conditional upon
satisfaction of the condition in the Umbrella Agreement.
2.2 Time limit for satisfaction of Condition
If the condition in CLAUSE 2.1 has not been fulfilled or waived (by mutual
agreement of the parties) by 31 December 1997 (or by such later date as
may be agreed in writing between the parties) this Agreement shall
thereupon become null and void ab initio and none of the parties shall
have any rights against any other party hereunder.
2.3 Operative provisions
Notwithstanding CLAUSE 2.1, CLAUSES 8, 10-16 (inclusive), 19 and 20 shall
come into force on the execution and exchange of this Agreement and the
remainder of this Agreement shall come into force on the fulfillment
and/or waiver of the Condition.
2.4 Conduct of business pending Completion
Each of the Vendors hereby undertakes to the Purchaser to procure, to the
extent that they are able, that the Company is run as set out in SCHEDULE
4 in respect of the period prior to Completion.
3. SALE AND PURCHASE
3.1 Obligation to sell and purchase and free from Encumbrances
Subject to the terms of this Agreement each of the Vendors shall sell,
with effect from 1 November 1997, with full title guarantee and free from
Encumbrances those Shares set opposite his name in COLUMN (2) of SCHEDULE
1 and the Purchaser shall purchase such Shares together with all rights
attaching thereto with effect from 1 November 1997.
-4-
<PAGE>
<PAGE>
3.2 Dividends and distributions
From Completion the Purchaser shall be entitled to receive all dividends
and distributions declared, paid or made by the Company in respect of the
Shares on or after 1 November 1997.
3.3 Sale of all Shares
The Purchaser shall not be obliged to complete the purchase of any of the
Shares hereunder unless the purchase of all the Shares is completed
simultaneously.
4. CONSIDERATION
4.1 Consideration
The consideration for the Shares shall be:
4.1.1 the sum of 'L'2,092,403, payable in cash; and
4.1.2 the sum of 'L'2,889,509 to be satisfied by the issue of the
Purchase Notes.
4.2 Entitlement to consideration
The consideration shall be allocated such that:
4.2.1 the Cash Consideration shall belong to the Vendors in the
proportions set opposite their respective names in COLUMN (3) of
SCHEDULE 1; and
4.2.2 the Purchase Notes shall be issued to the Vendors in the proportions
set opposite their respective names in COLUMN (4) of SCHEDULE 1.
4.3 Further consideration
As further consideration for the Shares purchased from Anthony David
Galley, the Purchaser hereby undertakes to issue to Anthony David Galley
the EOLN at the time and in respect of the amount set out in CLAUSE 4 of
the Earn Out Agreement.
4.4 Reduction in consideration
Any payment made by the Vendors pursuant to the operation of the Deed of
Contribution and clause 10 of the Umbrella Agreement, or any other payment
made pursuant to this Agreement, shall be deemed to be pro tanto a
reduction in the price paid for the Shares under this Agreement.
4.5 Guarantee of Purchase Notes
TCC agrees to guarantee the obligations of the Purchaser in respect of the
Purchase Notes on the terms set out in the Purchase Notes.
5. COMPLETION
5.1 Time and location
Subject as provided in CLAUSE 5.4, Completion shall take place at the
offices of the Purchaser's Solicitors on the fifth day following
satisfaction or waiver of the Condition
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<PAGE>
<PAGE>
or at such other place and/or on such other date as may be agreed in
writing between the Purchaser and each of the Vendors.
5.2 Vendors' obligations
At Completion the Vendors shall deliver to the Purchaser each of the
documents listed in PART 1 of SCHEDULE 2.
5.3 Purchaser's obligations
Subject to the Vendors complying with their obligations under CLAUSE 5.2,
the Purchaser shall at Completion deliver the documents and effect the
actions listed in PART 2 of SCHEDULE 2.
5.4 TCC's obligations
Subject to the Vendors complying with their obligations under CLAUSE 5.2,
TCC shall at Completion deliver the documents and effect the transactions
listed in PART 3 of SCHEDULE 2.
5.5 Failure to comply
If in any respect material to the Purchaser the provisions of CLAUSE 5.2
and PART 1 of SCHEDULE 2 or if in any respect material to the Vendors the
provisions of CLAUSES 5.3 and 5.4 and PARTS 2 and 3 of SCHEDULE 2 are not
complied with on the date of Completion applicable under CLAUSE 5.1, the
Purchaser or, as the case may be, the Vendors shall not be obliged to
complete this Agreement and may:-
5.5.1 defer Completion to a date not more than twenty-eight days after the
date set by CLAUSE 5.1 (and so that the provisions of this CLAUSE
5.4 shall apply to Completion as so deferred); or
5.5.2 proceed to Completion so far as practicable and without prejudice to
their rights under this Agreement; or
5.5.3 rescind this Agreement without prejudice to their rights and
remedies under this Agreement; or
5.5.4 waive all or any of the requirements contained in CLAUSE 5.2 or, as
the case may be, CLAUSES 5.3 and 5.4, at their discretion.
6. WAIVER OF PRE-EMPTION RIGHTS
The Vendors by their execution of this Agreement hereby waive any
pre-emption rights in respect of the Shares conferred on them under the
articles of association of the Company or otherwise.
7. RTPA
7.1 If there is any provision of this Agreement, or of any agreement or
arrangement of which this Agreement forms part, which causes or would
cause this Agreement or that agreement or arrangement to be subject to
registration under the RTPA, then that provision shall not take effect
until the day after particulars of this Agreement or of
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<PAGE>
that agreement or arrangement (as the case may be) have been furnished to
the Director General of Fair Trading pursuant to section 24, RTPA.
7.2 The Purchaser shall furnish such particulars as are referred to in
CLAUSE 7.1 as soon as is reasonably practicable after the date of this
Agreement and within the time limits specified in the RTPA and the Vendors
undertake to provide such information and assistance as the Purchaser may
reasonably require in connection therewith.
8. ANNOUNCEMENTS
8.1 Restrictions on announcements
No announcement shall be made in relation to the subject matter of this
Agreement or a matter ancillary to this Agreement without the prior
written consent of the other party save as may be required by any:-
8.1.1 law;
8.1.2 existing contractual arrangements; or
8.1.3 the Stock Exchange or the Panel on Takeovers and Mergers or any
other applicable regulatory authority to which the Vendors are
subject where such requirement has the force of law,
provided such communication shall be made only after consultation with the
Purchaser.
8.2 Continuing effect
The restrictions contained in this clause shall continue to apply after
Completion without limit in time.
8.3 Legal and regulatory requirements
The Purchaser and the Vendors undertake to provide all such information
known to them or which on reasonable enquiry ought to be known to them as
may reasonably be required by the Vendors or the Purchaser for the purpose
of complying with the requirements of law or of any applicable regulatory
authority to which either party is subject where such requirement has the
force of law.
9. IMPLIED COVENANTS FOR TITLE AND FURTHER ASSURANCE
9.1 The Law of Property (Miscellaneous Provisions) Act 1994 ("LPMPA") applies
to all dispositions of property made under or pursuant to this Agreement
save that the word "reasonably" shall be deleted from the covenant set out
in section 2(1)(b), LPMPA, and the covenant set out in section 3(1), LPMPA
shall not be qualified by the words "other than any charges, incumbrances
or rights which that person does not and could not reasonably be expected
to know about."
10. ASSIGNMENT
10.1 No party may assign the benefit of this Agreement whether absolutely or by
way of security except in the case of an absolute assignment of all or
part by the Purchaser to
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<PAGE>
an Affiliate of the Purchaser and provided and so long as it remains an
Affiliate (failing which the benefit of this Agreement shall no longer be
available to such assignee nor to any assignor) save that the Purchaser
may assign such benefit absolutely or by way of security to a person other
than an Affiliate of the Purchaser with the prior consent in writing of
the Vendors such consent not to be unreasonably withheld or delayed and
any purported assignment in contravention of this clause shall be
ineffective.
10.2 Subject to CLAUSE 10.1, this Agreement shall be binding upon and enure for
the benefit of the personal representatives and assigns and successors in
title of each of the parties.
11. REMEDIES CUMULATIVE
11.1 The rights, powers and remedies provided in this Agreement or expressly
referred to herein are cumulative and do not exclude any rights, powers or
remedies provided by law or by any other document other than this
Agreement.
11.2 Nothing in this Agreement or in any document in the agreed terms shall be
read or construed as excluding any liability or remedy as a result of
fraud.
12. WAIVER, VARIATION AND RELEASE
12.1 No omission to exercise or delay in exercising on the part of any party to
this Agreement any right, power or remedy provided by law or under this
Agreement shall constitute a waiver of such right, power or remedy or any
other right, power or remedy or impair such right, power or remedy. No
single or partial exercise of any such right, power or remedy shall
preclude or impair any other or further exercise thereof or the exercise
of any other right, power or remedy provided by law or under this
Agreement.
12.2 Any waiver of any right, power or remedy under this Agreement must be in
writing and may be given subject to any conditions thought fit by the
grantor. Unless otherwise expressly stated any waiver shall be effective
only in the instance and only for the purpose for which it is given.
12.3 No variation to this Agreement shall be of any effect unless it is agreed
in writing and signed by or on behalf of each party.
13. COSTS AND EXPENSE
13.1 General
Save as otherwise stated in this Agreement or in the Umbrella Agreement,
each party shall pay its own costs and expenses in relation to the
negotiation, preparation, execution and carrying into effect of this
Agreement and other agreements forming part of the transaction.
13.2 Group companies to pay no costs
For the avoidance of doubt, neither the Company nor any of its
subsidiaries shall pay any legal or other professional charges and
expenses in connection with any investigation of the affairs of the
Company or the negotiation, preparation, execution and carrying into
effect of this Agreement or any other agreement forming part of the
transaction.
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14. NOTICES
14.1 Any communication to be given in connection with the matters contemplated
by this Agreement shall except where expressly provided otherwise be in
writing and shall either be delivered by hand or sent by first class
pre-paid post or sent by air mail. Delivery by courier shall be regarded
as delivery by hand.
14.2 Such communication shall be sent to the address of the relevant party
referred to in this Agreement or to such other address as may previously
have been communicated to the other party in accordance with this clause.
Each communication shall be marked for the attention of the relevant
person.
14.3 A communication shall be deemed to have been served:-
14.3.1 if delivered by hand at the address referred to in CLAUSE 14.2, at
the time of delivery;
14.3.2 if sent by first class pre-paid post to the address referred to in
CLAUSE 14.2, at the expiration of two clear days after the time of
posting; and
14.3.3 if sent by air mail to the address referred to in CLAUSE 14.2, at
the expiration of five clear days after posting.
If a communication would otherwise be deemed to have been delivered
outside of normal business hours (being 9:30 a.m. to 5:30 p.m. on a
Business Day) in the time zone of the territory of the recipient under the
preceding provisions of this clause, it shall be deemed to have been
delivered at the opening of business on the next Business Day.
14.4 In proving service of the communication, it shall be sufficient to show
that delivery by hand was made or that the envelope containing the
communication was properly addressed and posted as a first class pre-paid
letter or air mail letter.
14.5 A party may notify the other parties to this Agreement of a change to its
name, relevant person or address for the purposes of CLAUSE 14.2 PROVIDED
THAT such notification shall only be effective on:-
14.5.1 the date specified in the notification as the date on which the
change is to take place; or
14.5.2 if no date is specified or the date specified is less than five
clear Business Days after the date on which notice is deemed to
have been served, the date falling five clear Business Days after
notice of any such change is deemed to have been given.
14.6 For the avoidance of doubt, the parties agree that the provisions of this
clause shall not apply in relation to the service of Service Documents.
15. COUNTERPARTS
15.1 This Agreement may be executed in any number of counterparts and by the
parties on different counterparts, but shall not be effective until each
party has executed at least one counterpart.
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15.2 Each counterpart shall constitute an original of this Agreement but all
the counterparts shall together constitute one and the same Agreement.
16. LANGUAGE
16.1 This Agreement is drawn up in the English language and if this Agreement
is translated into any language other than English, the English language
text shall prevail.
16.2 Each notice, instrument, certificate or other communication to be given by
one party to another hereunder or in connection with this Agreement shall
be in the English language (being the language of negotiation of this
Agreement) and in the event that such notice, instrument, certificate or
other communication or this Agreement is translated into any other
language, the English language text shall prevail.
17. INVALIDITY
Each of the provisions of this Agreement is severable. If any such
provision is or becomes illegal, invalid or unenforceable in any respect
under the law of any jurisdiction, the legality, validity or
enforceability in that jurisdiction of the remaining provisions of this
Agreement of that provision or any other provision of this Agreement,
shall not in any way be affected or impaired thereby.
18. AGREEMENT TO CONTINUE IN FULL FORCE AND EFFECT
This Agreement shall, to the extent that it remains to be performed,
continue in full force and effect notwithstanding Completion.
19. CONFIDENTIALITY
19.1 The Vendors hereby undertake with the Purchaser that they shall both
during and after the term of this Agreement keep confidential and not
directly or indirectly reveal, report, publish, disclose or transfer or
use for their own or any other purposes Confidential Information except:-
19.1.1 in the circumstances set out in CLAUSE 19.2; or
19.1.2 to the extent otherwise expressly permitted by this Agreement; or
19.1.3 with the prior consent in writing of the party to whose affairs
such Confidential Information relates.
19.2 The circumstances referred to in CLAUSE 19.1.1 above are:-
19.2.1 where the Confidential Information, before it is furnished to or
comes into the knowledge or possession of any of the Vendors, is
in the public domain; or
19.2.2 where the Confidential Information, after it is furnished to or
comes into the knowledge or possession of the Vendors enters the
public domain otherwise than as a result of (a) a breach by any of
the Vendors of their obligations in this CLAUSE 19 or (b) a breach
by the person who disclosed that Confidential
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Information of his confidentiality obligation and the relevant
Vendor is aware of such breach; or
19.2.3 if and to the extent that any of the Vendors make disclosure of
the Confidential Information to any person:
(a) in compliance with any requirement of law; or
(b) in response to a requirement of the Stock Exchange or the
Panel on Take-overs and Mergers or any other applicable
regulatory authority to which any of the Vendors are subject
where such requirement has the force of law; or
(c) in order to obtain tax or other clearances or consents from
the Inland Revenue or other relevant taxing or regulatory
authorities; or
19.2.4 to the consultants and professional advisers of the Vendors, in
each case on the basis that they will comply with the Vendors'
obligations of confidence hereunder,
PROVIDED THAT any such information disclosable pursuant to CLAUSES 19.2.3
(a), (b) OR (c) shall be disclosed to the extent permitted by law and only
after consultation with the other party.
19.3 The restrictions contained in this clause shall continue to apply after
the Completion without limit in time.
20. GOVERNING LAW AND JURISDICTION
20.1 English law
This Agreement shall be governed by and construed in accordance with
English law.
20.2 Courts of England and Wales
The parties to this Agreement irrevocably agree that the courts of England
shall have non exclusive jurisdiction to settle any dispute which may
arise out of or in connection with this Agreement and that accordingly any
Proceedings may be brought in such courts.
20.3 Acceptance by Vendors
For the avoidance of doubt, the Vendors expressly and specifically agree
and accept the terms of this clause and sign below in recognition of this
fact.
AS WITNESS the hands of the parties or their duly authorised representatives on
the date first appearing at the head of this Agreement.
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SCHEDULE 1
THE VENDORS
(1) (2) (3) (4)
Name and Number of Shares Entitlement to Entitlement to
address and Cash Purchase
facsimile number Consideration Notes
(if any)
GEOFFREY HARRISON GALLEY 200 597,829 398,553
Red Lodge
The Close
Totteridge
London N20 8PT
NORMA GALLEY 200 597,829 398,553
Red Lodge
The Close
Totteridge
London N20 8PT
ANTHONY DAVID GALLEY 350 435,917 1,307,752
Beacon Way
The Hangars
Bishops Waltham
SO32 1FZ
BARRIE BEVIS 200 249,096 747,287
53 Wilderness
Heights
West End
Southampton
Hampshire SO18 3PS
IVOR ATKINSON 25 105,866 18,682
90 Queens Drive
Surbiton
Surrey KT5 8PP
MICHAEL J KELLY 25 105,866 18,682
8 The Vineyards
North Baddesley
Southampton
Hampshire SO52 9PP ________________ ______________ _______________
Total 1,000 2,092,403 2,889,509
----------------- --------------- ----------------
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SCHEDULE 2
COMPLETION
PART 1 - DELIVERY OF DOCUMENTS BY VENDORS
On Completion, the Vendors shall deliver to the Purchaser:-
1. transfers of such of the Shares as are held by each of the
Vendors duly executed by the registered holder in favour of the
Purchaser or its nominee(s) together with the relevant share
certificates in the name of the registered holder;
2. the Patent Licence duly executed by the Patent Owners;
3. a counterpart of the Deed of Contribution duly executed by
the Vendors;
4. a counterpart of the Subordination Agreement duly executed
by those Vendors who receive Purchase Notes;
5. the Non Competition Agreements duly executed by the Vendors;
6. the Service Agreements duly executed by A. Galley, B. Bevis
and I. Atkinson;
7. the OSI Indemnity duly executed by those Vendors who are to
be a party to it;
8. such waivers, consents or other documents (including any power of attorney
under which any document required to be delivered under PART 1 of this
SCHEDULE 2 has been executed) in the agreed terms to enable the Purchaser
and its nominee(s) to be registered as the holders of the Shares sold by
the Vendors; and
9. an irrevocable power of attorney in the agreed terms executed by each of
the Vendors in favour of the Purchaser or its nominee(s) to enable the
beneficiary (pending registration of the transfers of the Shares sold by
the Vendors) to exercise all voting and other rights attaching to the
Shares sold by the Vendors and to appoint proxies for this purpose.
PART 2 - DELIVERY OF DOCUMENTS AND ACTIONS BY THE PURCHASER
Subject as provided in CLAUSE 5.3, on Completion the Purchaser shall:-
1. pay the Cash Consideration by way of electronic transfer for same day
value to the Vendors' Solicitors who are irrevocably authorised to receive
the same and whose receipt shall be an effective discharge of the
Purchaser's obligation to pay such sum and the Purchaser shall not be
concerned to see to the application or be answerable for the loss or
misapplication of such sums;
2. deliver certificates in respect of the Purchase Notes, duly issued, to
such of the Vendors as are to receive the same;
3. deliver a counterpart of the Deed of Contribution duly executed by the
Purchaser;
4. counterparts of the Non Competition Agreements duly executed by the
Purchaser;
5. deliver to each of the Vendors a copy of the minutes of a meeting of the
directors of the Purchaser:
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5.1. authorising the execution of this Agreement and related documents;
and
5.2. resolving to create and issue the Purchase Notes.
PART 3 - DELIVERY OF DOCUMENTS AND ACTIONS BY TCC
Subject as provided in CLAUSE 5.4, on Completion TCC shall:
1. execute the instrument constituting the Purchase Notes by way of
guaranteeing the obligations of the Purchaser thereunder;
2. procure that CooperVision, Inc. shall duly execute the Patent Licence;
3. deliver a counterpart of the Deed of Contribution duly executed by TCC;
4. deliver a counterpart of the Subordination Agreement duly executed by TCC;
5. deliver a counterpart of the OSI Indemnity duly executed by TCC;
6. deliver to the Vendors a copy of the minutes of a meeting of the directors
of TCC authorising the execution of:
6.1 the instrument constituting the Purchase Notes; and
6.2 this Agreement.
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SCHEDULE 3
DOCUMENTS IN THE AGREED TERMS
Consents, waivers and powers of attorney re: sale of Shares
Deed of Contribution
Non Competition Agreements
OSI Indemnity
Patent Licence
Powers of Attorney
Purchase Notes
Service Agreements
Subordination Agreement
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SCHEDULE 4
CONDUCT OF BUSINESS PENDING COMPLETION
(i) The business of the Company will be carried on as a going
concern and in the normal course.
(ii) No physical assets of the Company shall be removed from any property of
the Company save in the ordinary course of normal day to day trading.
(iii) The Vendors will use all reasonable endeavours to maintain the trade and
trade connections of the Company.
(iv) All debts which the Company incurs in the normal course of the business
will be settled within the applicable periods of credit.
(v) The Company will not enter into modify or agree to terminate any material
contract (other than in the ordinary course of business) or incur any
capital expenditure on any individual item for an amount in excess of
'L'100,000.
(vi) The Company will not appoint or employ any new employees or consultants
at an annual salary or rate of remuneration in excess of 'L'30,000.
(vii) The Company will not alter materially or agree to alter materially the
terms and conditions of employment (including benefits) of any of its
employees and no Vendor will induce or endeavour to induce any of such
employees to terminate their employment prior to Completion other than
for a justifiable reason.
(viii) The Company will not dispose of any material assets used or required for
the operation of the business of the Company (otherwise than in the
ordinary course of business) or enter into any other transaction
otherwise than in the ordinary course of business.
(ix) The Company will not create any mortgages, charges, or other encumbrances
over its assets or undertakings nor give any guarantees or indemnities in
respect of any third party otherwise than in the ordinary course of
businesses.
(x) Save for debt collection in the ordinary course of business, the Company
will not institute, settle or agree to settle any legal proceedings
relating to the business of the Company.
(xi) The Company will not grant or modify or agree to terminate any rights or
enter into any agreement relating to intellectual property or otherwise
permit any of its rights relating to the intellectual property to lapse.
(xii) The Purchaser will be given full details of any material changes in the
business, financial position and/or assets of the Company from the date
hereof prior to Completion.
(xvi) All the insurance policies of the Company shall be continued for at least
the same amount and on no less favourable terms than as before.
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SIGNED by GEOFFREY HARRISON GALLEY )
in the presence of:- )
SIGNED by NORMA GALLEY )
in the presence of:- )
SIGNED by ANTHONY DAVID GALLEY )
in the presence of:- )
SIGNED by BARRIE BEVIS )
in the presence of:- )
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SIGNED by IVOR ATKINSON )
in the presence of:- )
SIGNED by MICHAEL J KELLY )
in the presence of:- )
SIGNED by )
for and on behalf of )
ASPECT VISION HOLDINGS LIMITED )
in the presence of:- )
SIGNED by )
for and on behalf of )
THE COOPER COMPANIES, INC. )
in the presence of:- )
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<PAGE>
Exhibit 2.5
Dated November 1997
GIACOMO GRASSI
FABRIZIO LAMBERTINI (1)
ASPECT VISION HOLDINGS LIMITED (2)
AND
THE COOPER COMPANIES, INC. (3)
----------------------------------------------
Agreement
for the sale and purchase
of 32.06% of the issued capital
of ASPECT VISION ITALIA S.R.L.
----------------------------------------------
CAMERON MCKENNA
MITRE HOUSE
160 ALDERSGATE STREET
LONDON EC1A 4DD
T+44(0)171 367 3000
F+44(0)171 367 2000
<PAGE>
<PAGE>
TABLE OF CONTENTS
1. Definitions and interpretation.....................................1
2. Condition..........................................................4
3. Sale and purchase..................................................5
4. Consideration......................................................5
5. Completion.........................................................6
6. Waiver of pre-emption rights.......................................6
7. Put and Call Options...............................................7
8. Grassi Covenants...................................................8
9. RTPA...............................................................8
10. Announcements.....................................................8
11. Assignment........................................................9
12. Remedies cumulative...............................................9
13. Waiver, variation and release.....................................9
14. Costs and expense................................................10
15. Notices..........................................................10
16. Counterparts.....................................................11
17. Language.........................................................11
18. Invalidity.......................................................11
19. Agreement to continue in full force and effect...................11
20. Confidentiality..................................................11
21. Governing law and jurisdiction...................................12
Schedule 1 The Vendors...............................................14
Schedule 2 Completion................................................15
Part 1 - Delivery of documents by Vendors............................15
Part 2 - Delivery of documents and actions by the Purchaser..........15
Part 3 - Delivery of documents and actions by TCC....................16
Schedule 3 Documents in the agreed terms.............................17
Schedule 4 Deed of Sale and Transfer.................................18
Schedule 5 Conduct of business pending Completion....................19
<PAGE>
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THIS AGREEMENT is made the day of November 1997
BETWEEN:-
(1) The persons whose names and addresses are set out in COLUMN 1 of SCHEDULE 1
(the "Vendors"); and
(2) ASPECT VISION HOLDINGS LIMITED (registered in England with number 3448379)
whose registered office is at Mitre House, 160 Aldersgate Street, London,
EC1A 4DD (the "Purchaser"); and
(3) THE COOPER COMPANIES, INC. a company incorporated in Delaware whose
principal office is at 6140 Stoneridge Mall Road, Suite 590, Pleasanton CA
94588 ("TCC").
WHEREAS:-
(A) The Vendors are each quotaholders in the Company.
(B) The Purchaser wishes to purchase 32.06% of the issued capital of the
Company from the Vendors and the Vendors have each agreed to sell their
respective quotaholdings in the Company in each case upon and subject to
the terms and conditions of this Agreement.
WHEREBY IT IS AGREED as follows:-
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following words and expressions have the meanings set
opposite them:
"AFFILIATE": in relation to any body corporate, any
Holding Company or subsidiary undertaking of
such body corporate or any subsidiary
undertaking of a Holding Company of such
body corporate;
"AGREEMENT": this Agreement including its recitals and
the schedules hereto;
"BUSINESS DAY": a weekday (other than a Saturday) when banks
are open for business in London;
"CA 85": Companies Act 1985;
"CALL OPTION": the call option over the Purchase Quotas
granted by Mr. Grassi to the Purchaser
pursuant to CLAUSE 7.1.2 below;
"CASH CONSIDERATION": the cash consideration payable for the
Quotas as specified in CLAUSE 4.1;
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"COMPANY": means Aspect Vision Italia S.r.l., a company
registered in Italy under number 325566
whose registered office is at 27 Via P.
Lomazzo, Milan, Italy;
"COMPLETION": completion of the sale and purchase of the
Quotas pursuant to this Agreement;
"CONDITION": the condition referred to in CLAUSE 2.1;
"CONFIDENTIAL INFORMATION": all information received or obtained by the
Vendors or supplied to the Vendors in the
negotiations leading to this Agreement and
which relates to TCC or any of its
subsidiaries;
"DEED OF CONTRIBUTION": the deed of contribution in the agreed terms
to be entered into at Completion between the
Purchaser, the Vendors and others;
"DEED OF SALE AND TRANSFER": the deed of sale and transfer, the form of
which is set out in SCHEDULE 4, transferring
the Quotas held by the Vendors to the
Purchaser or its nominee(s)
"ENCUMBRANCE": any interest or equity of any person
(including any right to acquire, option or
right of pre-emption) or any mortgage,
charge, pledge, lien, assignment,
hypothecation, security interest, title
retention or any other security agreement or
arrangement;
"EXERCISE NOTICE": a written notice served upon Mr. Grassi by
the Purchaser exercising the Call Option
and/or a written notice served upon the
Purchaser by Mr. Grassi exercising the Put
Option;
"GRASSI COVENANTS": the covenants set out in CLAUSE 8 below;
"HOLDING COMPANY": a holding company within the meaning
ascribed to such expression by sections 736
and 736A, CA 85;
"MR GRASSI": Giacomo Grassi, one of the Vendors;
"NON-COMPETITION AGREEMENTS": the agreements in the agreed terms to be
entered into at Completion between the
Purchaser and the Vendors relating to the
protection of, inter alia, the goodwill of
the business of the Company;
"OPTION PERIOD": the period commencing on the date hereof and
terminating on the date of the third
anniversary of this Agreement;
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"OPTIONS": the Call Option and the Put Option;
"PROCEEDINGS": any proceeding, suit or action arising out
of or in connection with this Agreement;
"PURCHASE NOTES": the loan notes in the agreed terms to be
issued to the Vendors at Completion by the
Purchaser and guaranteed by TCC;
"PURCHASE QUOTAS" quotas having a nominal value of Lire
143,295,000;
"PURCHASER'S ITALIAN LAWYERS": Gianni Origoni & Partners of Piazza
Belgiolso 2, 20121 Milan, Italy (whose
London address is 40 Basinghall Street,
London EC2V 5DE);
"PUT OPTION": the put option over the Purchase Quotas
granted by the Purchaser to Mr. Grassi
pursuant to CLAUSE 7.1.1 below;
"QUOTAS": the quotas in the capital of the Company set
out in COLUMN (2) of SCHEDULE 1;
"RTPA": Restrictive Trade Practices Act 1976;
"SERVICE AGREEMENTS": the service agreements in the agreed terms
to be entered into between Aspect Vision
Care Limited and each of the Vendors;
"SERVICE DOCUMENT": a writ, summons, order, judgement or other
document relating to or in connection with
any Proceedings;
"STOCK EXCHANGE": London Stock Exchange Limited;
"SUBORDINATION AGREEMENT": the subordination agreement in the agreed
terms to be entered into at Completion
between TCC, Keybank National Association
and the holders of the Purchase Notes;
"SUBSIDIARY": a subsidiary within the meaning ascribed to
such expression by sections 736 and 736A,
CA 85;
"SUBSIDIARY UNDERTAKING": a subsidiary undertaking within the meaning
ascribed to such expression by section 258,
CA 85;
"UMBRELLA AGREEMENT": the umbrella agreement of even date herewith
relating to, inter alia, the sale and
purchase of the Quotas entered into between
the Purchaser, Mr Anthony D. Galley and TCC;
"VAT": value added tax;
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"VENDORS' SOLICITORS": Travers Smith Braithwaite of 10 Snow Hill,
London, EC1A 2AL; and
"IN THE AGREED TERMS": in the form agreed between the Vendors and
the Purchasers and signed for the purposes
of identification by or on behalf of each
party.
1.2 The table of contents and headings in this Agreement are inserted for
convenience only and shall not affect its construction.
1.3 Unless the context otherwise requires words denoting the singular shall
include the plural and vice versa, references to any gender shall include
all other genders and references to persons shall include bodies corporate,
unincorporated associations and partnerships in each case whether or not
having a separate legal personality. References to the word "include" or
"including" are to be construed without limitation.
1.4 References to recitals, schedules and clauses are to recitals and schedules
to and clauses of this Agreement unless otherwise specified and references
within a schedule to paragraphs are to paragraphs of that schedule unless
otherwise specified.
1.5 References in this Agreement to any statute, statutory provision or EC
Directive include a reference to that statute, statutory provision or EC
Directive as amended, extended, consolidated or replaced from time to time
(whether before or after the date of this Agreement) and include any order,
regulation, instrument or other subordinate legislation made under the
relevant statute, statutory provision or EC Directive.
1.6 References to any English legal term for any action, remedy, method of
judicial proceeding, legal document, legal status, court, official or any
legal concept or thing shall in respect of any jurisdiction other than
England be deemed to include that which most approximates in that
jurisdiction to the English legal term.
1.7 Any reference to "writing" or "written" includes faxes and any
non-transitory form of visible reproduction of words.
1.8 References to times of the day are to London time and references to a day
are to a period of 24 hours running from midnight to midnight.
2. CONDITION
2.1 Condition precedent
Subject to CLAUSE 2.3, this Agreement is subject to and conditional upon
satisfaction of the condition in clause 2.1 of the Umbrella Agreement.
2.2 Time limit for satisfaction of Condition
If the condition in CLAUSE 2.1 has not been fulfilled or waived (by mutual
agreement of the parties) by 31 December 1997 (or by such later date as may
be agreed in writing between the parties) this Agreement shall thereupon
become
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null and void ab initio and none of the parties shall have any rights
against any other party hereunder.
2.3 Operative provisions
Notwithstanding CLAUSE 2.1, CLAUSES 10, 12-18 (inclusive), 21 and 22 shall
come into force on the execution and exchange of this Agreement and the
remainder of this Agreement shall come into force on the fulfilment and/or
waiver of the Condition.
2.4 Conduct of business pending Completion
Each of the Vendors hereby undertakes to the Purchaser, to the extent that
they are able, to procure that the Company is run as set out in SCHEDULE 5
in respect of the period prior to Completion.
3. SALE AND PURCHASE
3.1 Obligation to sell and purchase and free from Encumbrances
Subject to the terms of this Agreement each of the Vendors shall sell, with
effect from 1 November 1997, with full title guarantee and free from
Encumbrances those Quotas set opposite his name in COLUMN (2) of SCHEDULE 1
and the Purchaser shall purchase such Quotas together with all rights
attaching thereto with effect from 1 November 1997.
3.2 Dividends and distributions
From Completion the Vendors shall transfer to the Purchaser all dividends
and distributions declared, paid or made by the Company to the Vendors in
respect of the Quotas on or after 1 November 1997.
3.3 Sale of all Quotas
The Purchaser shall not be obliged to complete the purchase of any of the
Quotas hereunder unless the purchase of all the Quotas is completed
simultaneously.
4. CONSIDERATION
4.1 Consideration
The consideration for the Quotas shall be:
4.1.1 the sum of 'L'173,705 payable in cash; and
4.1.2 the sum of 'L'377,239 to be satisfied by the issue of the
Purchase Notes.
4.2 Entitlement to consideration
The consideration shall be allocated such that:
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4.2.1 the Cash Consideration shall belong to the Vendors in the proportions
set opposite their respective names in COLUMN (3) of SCHEDULE 1; and
4.2.2 the Purchase Notes shall be issued to the Vendors in the proportions
set opposite their respective names in COLUMN (4) of SCHEDULE 1.
4.3 Reduction in consideration
Any payment made by the Vendors pursuant to the operation of the Deed of
Contribution and clause 10 of the Umbrella Agreement, or any other payment
made pursuant to this Agreement, shall be deemed to be pro tanto a
reduction in the price paid for the Quotas under this Agreement.
4.4 Guarantee of Purchase Notes
TCC agrees to guarantee the obligations of the Purchaser in respect of the
Purchase Notes on the terms set out in the Purchase Notes.
5. COMPLETION
5.1 Time and location
Subject as provided in CLAUSE 5.4, Completion shall take place at the Milan
offices of the Purchaser's Italian Lawyers on the fifth day following
satisfaction or waiver of the Condition or at such other place and/or on
such other date as may be agreed in writing between the Purchaser and each
of the Vendors.
5.2 Vendors' obligations
At Completion the Vendors shall deliver to the Purchaser each of the
documents listed in PART 1 of SCHEDULE 2.
5.3 Purchaser's obligations
Subject to the Vendors complying with their obligations under CLAUSE 5.2,
the Purchaser shall at Completion deliver the documents and effect the
actions listed in PART 2 of SCHEDULE 2.
5.4 TCC's obligations
Subject to the Vendors complying with their obligations under CLAUSE 5.2,
TCC shall at Completion deliver the documents and effect the transactions
listed in PART 3 of SCHEDULE 2.
5.5 Failure to comply
If in any respect material to the Purchaser the provisions of CLAUSE 5.2
and PART 1 of SCHEDULE 2 or if in any respect material to the Vendors the
provisions of CLAUSES 5.3 and 5.4 and PARTS 2 and 3 of SCHEDULE 2 are not
complied with on the date of Completion applicable under CLAUSE 5.1, the
Purchaser or, as the case may be, the Vendors shall not be obliged to
complete this Agreement and may:-
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5.5.1 defer Completion to a date not more than twenty-eight days after the
date set by CLAUSE 5.1 (and so that the provisions of this CLAUSE 5.5
shall apply to Completion as so deferred); or
5.5.2 proceed to Completion so far as practicable and without prejudice to
their rights under this Agreement; or
5.5.3 rescind this Agreement without prejudice to their rights and remedies
under this Agreement; or
5.5.4 waive all or any of the requirements contained in CLAUSE 5.2 or, as
the case may be, CLAUSES 5.3 and 5.4, at their discretion.
6. WAIVER OF PRE-EMPTION RIGHTS
The Vendors by their execution of this Agreement hereby waive any
pre-emption rights in respect of the Quotas conferred on them under the
articles of association of the Company or otherwise.
7. PUT AND CALL OPTIONS
7.1 Grant of Options
7.1.1 The Purchaser hereby grants to Mr Grassi an option exercisable during
the Option Period to require the Purchaser to purchase the Purchase
Quotas.
7.1.2 Mr Grassi hereby grants to the Purchaser an option exercisable during
the Option Period to require Mr Grassi to sell to the Purchaser the
Purchase Quotas.
7.1.3 The Options shall only be exercisable in respect of all of the
Purchase Quotas and shall not be capable of being exercised in
respect of part of the Purchase Quotas.
7.2 Exercise of Options
7.2.1 Completion of the exercise of either the Put Option or the Call
Option shall determine all rights in connection with the other.
7.2.2 The Put Option shall be exercisable by Mr Grassi serving upon the
Purchaser an Exercise Notice which shall thereupon become binding
upon the Purchaser and Mr Grassi.
7.2.3 The Call Option shall be exercisable by the Purchaser serving upon Mr
Grassi an Exercise Notice which shall thereupon become binding upon
Mr Grassi and the Purchaser.
7.2.4 An Exercise Notice when served (whether upon the Purchaser or Mr
Grassi) shall be irrevocable.
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7.2.5 Completion of the exercise of either Option shall be held within 5
Business Days of receipt of an Exercise Notice at such time and place
as Mr Grassi and the Purchaser may agree or, if the parties fail to
agree, at the offices in Milan of the Purchaser's Italian Lawyers at
2 p.m. (Italian time) on the fifth Business Day following receipt of
the Exercise Notice.
7.2.6 At completion of the exercise of either Option, Mr Grassi shall
execute a deed of sale and transfer (in substantially the same form
as the Deed of Sale and Transfer) in respect of the Purchase Quotas
in favour of the Purchaser (or as it may direct).
7.2.7 Upon execution by Mr Grassi of the deed of sale and transfer as
aforesaid in CLAUSE 7.2.6 above in respect of the Purchase Quotas,
the Purchaser shall pay consideration (which is to be agreed between
the Purchaser and Mr Grassi) by way of cash and/or an issue of loan
notes (such loan notes to be in substantially the same form as the
Purchase Notes). The proportion of the consideration to be paid in
cash and, if any, loan notes is to be agreed between the Purchaser
and Mr Grassi.
7.2.8 If Mr Grassi shall fail to execute a deed of sale and transfer of the
Purchase Quotas at completion then Mr Grassi shall forthwith execute,
before a duly appointed notary public in Italy, a power of attorney
irrevocably authorising and appointing the Purchaser (acting by any
director of the Purchaser or any person duly authorised by the
directors of the Purchaser) as his attorney to execute on his behalf
any such deed of sale and transfer of the Purchase Quotas and any
indemnity for any document of title not so delivered.
8. GRASSI COVENANTS
8.1 Mr Grassi hereby covenants that after Completion he will not at any time
sell, transfer, assign, pledge or undertake to sell, transfer, assign or
pledge, or otherwise dispose of any quotas he holds in the issued capital
of the Company to any person other than to the Purchaser.
8.2 Mr Grassi further covenants that for so long as he is a quotaholder in AVI
he will be not be concerned or engaged in any business within any country
in the European Union which competes (directly or indirectly) with any
business in which the Company is engaged.
8.3 Mr Grassi hereby undertakes to indemnify and keep the Purchaser indemnified
from and against and in respect of and to pay on demand to the Purchaser an
amount equivalent to any cost, expense, liability or risk of a fiscal
nature that the Purchaser may incur following any claim of a fiscal nature
in connection with the transfer by Mr Grassi of the Quotas and the Purchase
Quotas.
9. RTPA
9.1 If there is any provision of this Agreement, or of any agreement or
arrangement of which this Agreement forms part, which causes or would cause
this Agreement or that agreement or arrangement to be subject to
registration under the RTPA,
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then that provision shall not take effect until the day after particulars
of this Agreement or of that agreement or arrangement (as the case may be)
have been furnished to the Director General of Fair Trading pursuant to
section 24, RTPA.
9.2 The Purchaser shall furnish such particulars as are referred to in CLAUSE
9.1 as soon as is reasonably practicable after the date of this Agreement
and within the time limits specified in the RTPA and the Vendors undertake
to provide such information and assistance as the Purchaser may reasonably
require in connection therewith.
10. ANNOUNCEMENTS
10.1 Restrictions on announcements
No announcement shall be made in relation to the subject matter of this
Agreement or a matter ancillary to this Agreement without the prior written
consent of the other party save as may be required by any:-
10.1.1 law;
10.1.2 existing contractual arrangements; or
10.1.3 the Stock Exchange or the Panel on Takeovers and Mergers or any
other applicable regulatory authority to which the Vendors are
subject where such requirement has the force of law,
provided such communication shall be made only after consultation with the
other party.
10.2 Continuing effect
The restrictions contained in this clause shall continue to apply after
Completion without limit in time.
10.3 Legal and regulatory requirements
The Purchaser and the Vendors undertake to provide all such information
known to them or which on reasonable enquiry ought to be known to them as
may reasonably be required by the Vendors or the Purchaser for the purpose
of complying with the requirements of law or of any applicable regulatory
authority to which either party is subject where such requirement has the
force of law.
11. ASSIGNMENT
11.1 No party may assign the benefit of this Agreement whether absolutely or by
way of security except in the case of an absolute assignment of all or part
by the Purchaser to an Affiliate of the Purchaser and provided and so long
as it remains an Affiliate (failing which the benefit of this Agreement
shall no longer be available to such assignee nor to any assignor) save
that the Purchaser may assign such benefit absolutely or by way of security
to a person other than an Affiliate of the Purchaser with the prior consent
in writing of the Vendors such consent
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not to be unreasonably withheld or delayed and any purported assignment in
contravention of this clause shall be ineffective.
11.2 Subject to CLAUSE 11.1, this Agreement shall be binding upon and enure for
the benefit of the personal representatives and assigns and successors in
title of each of the parties.
12. REMEDIES CUMULATIVE
12.1 The rights, powers and remedies provided in this Agreement or expressly
referred to herein are cumulative and do not exclude any rights, powers or
remedies provided by law or by any other document other than this
Agreement.
12.2 Nothing in this Agreement or in any document in the agreed terms shall be
read or construed as excluding any liability or remedy as a result of
fraud.
13. WAIVER, VARIATION AND RELEASE
13.1 No omission to exercise or delay in exercising on the part of any party to
this Agreement any right, power or remedy provided by law or under this
Agreement shall constitute a waiver of such right, power or remedy or any
other right, power or remedy or impair such right, power or remedy. No
single or partial exercise of any such right, power or remedy shall
preclude or impair any other or further exercise thereof or the exercise of
any other right, power or remedy provided by law or under this Agreement.
13.2 Any waiver of any right, power or remedy under this Agreement must be in
writing and may be given subject to any conditions thought fit by the
grantor. Unless otherwise expressly stated any waiver shall be effective
only in the instance and only for the purpose for which it is given.
13.3 No variation to this Agreement shall be of any effect unless it is agreed
in writing and signed by or on behalf of each party.
14. COSTS AND EXPENSE
14.1 General
Save as otherwise stated in this Agreement or in the Umbrella Agreement,
each party shall pay its own costs and expenses in relation to the
negotiation, preparation, execution and carrying into effect of this
Agreement and other agreements forming part of the transaction.
14.2 Group companies to pay no costs
For the avoidance of doubt, neither the Company nor any of its subsidiaries
shall pay any legal or other professional charges and expenses in
connection with any investigation of the affairs of the Company or the
negotiation, preparation, execution and carrying into effect of this
Agreement or any other agreement forming part of the transaction.
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15. NOTICES
15.1 Any communication to be given in connection with the matters contemplated
by this Agreement shall except where expressly provided otherwise be in
writing and shall either be delivered by hand or sent by pre-paid
registered post or sent by air mail. Delivery by courier shall be regarded
as delivery by hand.
15.2 Such communication shall be sent to the address of the relevant party
referred to in this Agreement or to such other address as may previously
have been communicated to the other party in accordance with this clause.
Each communication shall be marked for the attention of the relevant
person.
15.3 A communication shall be deemed to have been served:-
15.3.1 if delivered by hand at the address referred to in CLAUSE 15.2, at
the time of delivery;
15.3.2 if sent by pre-paid registered post to the address referred to in
CLAUSE 15.2, at the expiration of four clear days after the time of
posting; and
15.3.3 if sent by air mail to the address referred to in CLAUSE 15.2, at
the expiration of five clear days after posting.
If a communication would otherwise be deemed to have been delivered outside
of normal business hours (being 9:30 a.m. to 5:30 p.m. on a Business Day)
in the time zone of the territory of the recipient under the preceding
provisions of this clause, it shall be deemed to have been delivered at the
opening of business on the next Business Day.
15.4 In proving service of the communication, it shall be sufficient to show
that delivery by hand was made or that the envelope containing the
communication was properly addressed and posted as a pre-paid registered
letter or air mail letter.
15.5 A party may notify the other parties to this Agreement of a change to its
name, relevant person or address for the purposes of CLAUSE 15.2 PROVIDED
THAT such notification shall only be effective on:-
15.5.1 the date specified in the notification as the date on which the
change is to take place; or
15.5.2 if no date is specified or the date specified is less than five
clear Business Days after the date on which notice is deemed to have
been served, the date falling five clear Business Days after notice
of any such change is deemed to have been given.
15.6 For the avoidance of doubt, the parties agree that the provisions of this
clause shall not apply in relation to the service of Service Documents.
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16. COUNTERPARTS
16.1 This Agreement may be executed in any number of counterparts and by the
parties on different counterparts, but shall not be effective until each
party has executed at least one counterpart.
16.2 Each counterpart shall constitute an original of this Agreement but all the
counterparts shall together constitute one and the same Agreement.
17. LANGUAGE
17.1 This Agreement is drawn up in the English language and if this Agreement is
translated into any language other than English, the English language text
shall prevail.
17.2 Each notice, instrument, certificate or other communication to be given by
one party to another hereunder or in connection with this Agreement shall
be in the English language (being the language of negotiation of this
Agreement) and in the event that such notice, instrument, certificate or
other communication or this Agreement is translated into any other
language, the English language text shall prevail.
18. INVALIDITY
Each of the provisions of this Agreement is severable. If any such
provision is or becomes illegal, invalid or unenforceable in any respect
under the law of any jurisdiction, the legality, validity or enforceability
in that jurisdiction of the remaining provisions of this Agreement of that
provision or any other provision of this Agreement, shall not in any way be
affected or impaired thereby.
19. AGREEMENT TO CONTINUE IN FULL FORCE AND EFFECT
This Agreement shall, to the extent that it remains to be performed,
continue in full force and effect notwithstanding Completion.
20. CONFIDENTIALITY
20.1 The Vendors hereby undertake with the Purchaser that they shall both during
and after the term of this Agreement keep confidential and not directly or
indirectly reveal, report, publish, disclose or transfer or use for their
own or any other purposes Confidential Information except:-
20.1.1 in the circumstances set out in CLAUSE 20.2; or
20.1.2 to the extent otherwise expressly permitted by this Agreement; or
20.1.3 with the prior consent in writing of the party to whose affairs such
Confidential Information relates.
20.2 The circumstances referred to in CLAUSE 20.1.1 above are:-
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20.2.1 where the Confidential Information, before it is furnished to or
comes into the knowledge or possession of any of the Vendors, is in
the public domain; or
20.2.2 where the Confidential Information, after it is furnished to or
comes into the knowledge or possession of the Vendors enters the
public domain otherwise than as a result of (a) a breach by any of
the Vendors of their obligations in this CLAUSE 20 or (b) a breach
by the person who disclosed that Confidential Information of his
confidentiality obligation and the relevant Vendor is aware of such
breach; or
20.2.3 if and to the extent that any of the Vendors make disclosure of the
Confidential Information to any person:
(a) in compliance with any requirement of law; or
(b) in response to a requirement of the Stock Exchange or the Panel
on Take-overs and Mergers or any other applicable regulatory
authority to which any of the Vendors are subject where such
requirement has the force of law; or
(c) in order to obtain tax or other clearances or consents from the
Inland Revenue or other relevant taxing or regulatory
authorities; or
20.2.4 to the consultants and professional advisers of the Vendors, in each
case on the basis that they will comply with the Vendors'
obligations of confidence hereunder,
PROVIDED THAT any such information disclosable pursuant to CLAUSES 20.2.3
(a), (b) OR (c) shall be disclosed to the extent permitted by law and only
after consultation with the other party.
20.3 The restrictions contained in this clause shall continue to apply after the
Completion without limit in time.
21. GOVERNING LAW AND JURISDICTION
21.1 English law
This Agreement shall be governed by and construed in accordance with
English law.
21.2 Courts of England and Wales
The parties to this Agreement irrevocably agree that the courts of England
shall have the non-exclusive jurisdiction to settle any dispute which may
arise out of or in connection with this Agreement and that accordingly any
Proceedings may be brought in such courts.
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21.3 Acceptance by Vendors
For the avoidance of doubt, the Vendors expressly and specifically agree
and accept the terms of this clause and sign below in recognition of this
fact.
AS WITNESS the hands of the parties or their duly authorised representatives on
the date first appearing at the head of this Agreement.
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SCHEDULE 1
THE VENDORS
(1) (2) (3) (4)
Name and Value of Quotas Entitlement to Entitlement to
address and (Lire) Cash Purchase
facsimile number Consideration Notes
(if any) ('L'Sterling) ('L'Sterling)
Giacomo Grassi of 34,392,000 139,271 273,937
Via Losanna 29,
20124 Milan
Fabrizio Lambertini of 11,464,000 34,434 103,302
Via Livio Pentimalli 46,
236 Rome
---------- ------- -------
Totals 45,856,000 173,705 377,239
---------- ------- -------
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SCHEDULE 2
COMPLETION
PART 1 - DELIVERY OF DOCUMENTS BY VENDORS
On Completion, the Vendors shall:-
1. execute the Deed of Sale and Transfer before an Italian notary public;
2. deliver to the Purchaser the Service Agreements duly executed by the
Vendors;
3. deliver to the Purchaser the Non Competition Agreements duly executed by
the Vendors;
4. deliver to the Purchaser a counterpart Subordination Agreement duly
executed by the Vendors;
5. deliver to the Purchaser a counterpart of the Deed of Contribution duly
executed by the Vendors; and
6. deliver to the Purchaser such waivers, consents or other documents
(including any power of attorney under which any document required to be
delivered under PART 1 of this SCHEDULE 2 has been executed) in the agreed
terms to enable the Purchaser and its nominee(s) to be registered as the
holders of the Quotas sold by the Vendors.
PART 2 - DELIVERY OF DOCUMENTS AND ACTIONS BY THE PURCHASER
Subject as provided in CLAUSE 5.3, on Completion the Purchaser shall:-
1. pay the Cash Consideration by way of electronic transfer for same day value
to the Vendors' Solicitors who are irrevocably authorised to receive the
same and whose receipt shall be an effective discharge of the Purchaser's
obligation to pay such sum and the Purchaser shall not be concerned to see
to the application or be answerable for the loss or misapplication of such
sums;
2. execute the Deed of Sale and Transfer before an Italian notary public;
3. deliver a counterpart of the Deed of Contribution duly executed by the
Purchaser;
4. counterparts of the Non Competition Agreements duly executed by the
Purchaser;
5. deliver certificates in respect of the Purchase Notes, duly issued, to such
of the Vendors as are to receive the same;
6. deliver to each of the Vendors a copy of the minutes of a meeting of the
directors of the Purchaser:
6.1 authorising the execution of this Agreement and related documents
(such copy minutes being certified as correct by an officer of the
Purchaser); and
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6.2 resolving to create and issue the Purchase Notes.
PART 3 - DELIVERY OF DOCUMENTS AND ACTIONS BY TCC
Subject as provided in CLAUSE 5.4, on Completion TCC shall:
1. execute the instrument constituting the Purchase Notes by way of
guaranteeing the obligations of the Purchaser thereunder;
2. deliver a counterpart of the Deed of Contribution duly executed by TCC;
3. deliver a counterpart of the Subordination Agreement duly executed by TCC;
4. deliver to the Vendors a copy of the minutes of a meeting of the directors
of TCC authorising the execution of:
4.1 the instrument constituting the Purchase Notes; and
4.2 this Agreement.
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SCHEDULE 3
DOCUMENTS IN THE AGREED TERMS
Consents, waivers and powers of attorney re: sale of Quotas
Deed of Contribution
Non Competition Agreements
Purchase Notes
Service Agreements
Subordination Agreement
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SCHEDULE 4
DEED OF SALE AND TRANSFER
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SCHEDULE 5
CONDUCT OF BUSINESS PENDING COMPLETION
(i) The business of the Company will be carried on as a going
concern and in the normal course.
(ii) No physical assets of the Company shall be removed from any property of
the Company save in the ordinary course of normal day to day trading.
(iii) The Vendors will use all reasonable endeavours to maintain the trade and
trade connections of the Company.
(iv) All debts which the Company incurs in the normal course of the business
will be settled within the applicable periods of credit.
(v) The Company will not enter into modify or agree to terminate any material
contract (other than in the ordinary course of business) or incur any
capital expenditure on any individual item for an amount in excess of
'L'100,000.
(vi) The Company will not appoint or employ any new employees or consultants
at an annual salary or rate of remuneration in excess of 'L'30,000.
(vii) The Company will not alter materially or agree to alter materially the
terms and conditions of employment (including benefits) of any of its
employees and no Vendor will induce or endeavour to induce any of such
employees to terminate their employment prior to Completion other than
for a justifiable reason.
(viii) The Company will not dispose of any material assets used or required for
the operation of the business of the Company (otherwise than in the
ordinary course of business) or enter into any other transaction
otherwise than in the ordinary course of business.
(ix) The Company will not create any mortgages, charges, or other encumbrances
over its assets or undertakings nor give any guarantees or indemnities in
respect of any third party otherwise than in the ordinary course of
businesses.
(x) Save for debt collection in the ordinary course of business, the Company
will not institute, settle or agree to settle any legal proceedings
relating to the business of the Company.
(xi) The Company will not grant or modify or agree to terminate any rights or
enter into any agreement relating to intellectual property or otherwise
permit any of its rights relating to the intellectual property to lapse.
(xii) The Purchaser will be given full details of any material changes in the
business, financial position and/or assets of the Company from the date
hereof prior to Completion.
(xvi) All the insurance policies of the Company shall be continued for at least
the same amount and on no less favourable terms than as before.
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SIGNED by GIACOMO GRASSI )
in the presence of:- )
)
SIGNED by FABRIZIO LAMBERTINI )
in the presence of:- )
SIGNED by )
)
for and on behalf of )
ASPECT VISION HOLDINGS LIMITED )
in the presence of:- )
SIGNED by )
)
for and on behalf of )
THE COOPER COMPANIES, INC. )
in the presence of:- )
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EXHIBIT 99.1
DATED 1997
ASPECT VISION HOLDINGS LIMITED (1)
AND
THE COOPER COMPANIES, INC. (2)
----------------------------------------
INSTRUMENT
CONSTITUTING UP TO 'L'15,000,000 OF
8 PER CENT FIXED RATE
GUARANTEED SECURED LOAN NOTES
----------------------------------------
CAMERON MCKENNA
MITRE HOUSE
160 ALDERSGATE STREET
LONDON EC1A 4DD
T +44(0)171 367 3000
F +44(0)171 367 2000
<PAGE>
<PAGE>
TABLE OF CONTENTS
CLAUSE PAGE
- ------ ----
1. Pari Passu............................................1
2. Definitions...........................................1
3. Principal Amount......................................1
4. Interest..............................................1
5. Payments..............................................1
6. Certificates..........................................1
7. Conditions............................................1
8. Notice of Event of Default............................1
9. Conditions and Schedules..............................1
10. Guarantee............................................1
11. Shares Charge........................................1
12. Stock Exchange.......................................1
13. Notices..............................................1
14. Distinct Provisions..................................1
15. Governing Law and Jurisdiction.......................1
16. Delivery.............................................1
SCHEDULE 1...............................................1
Certificate.........................................1
SCHEDULE 2...............................................1
The Guarantee.......................................1
SCHEDULE 3...............................................1
Register and Transfers..............................1
SCHEDULE 4...............................................1
Meetings Of The Noteholders.........................1
<PAGE>
<PAGE>
THIS INSTRUMENT is entered into the day of 1997
By
(1) ASPECT VISION HOLDINGS LIMITED a company incorporated in England and Wales
with limited liability under the Companies Act 1985 (Reg No 3448379) whose
registered office is at Mitre House, 160 Aldersgate Street, London EC1A
4DD (the "COMPANY"); and
(2) THE COOPER COMPANIES, INC whose address for the purpose of this Instrument
is at 6140 Stoneridge Mall Road, Suite 590, Pleasanton, CA 94588, USA (the
"GUARANTOR")
WHEREAS:
The Company has, pursuant to its Memorandum and Articles of Association,
resolved to issue a series of 8 per cent Fixed Rate Guaranteed Secured Loan
Notes not exceeding 'L'15,000,000 in aggregate principal amount pursuant TO
a resolution of its Board of Directors passed on or around the date of this
Instrument and the Guarantor has agreed to guarantee the same subject to and
with the benefit of the terms and conditions contained in Schedule 2 hereto.
WITNESSES:
1. PARI PASSU
1.1 This Instrument constitutes the Notes of the above-mentioned series of
like Notes of varying denominations. All such Notes for the time being in
issue rank pari passu for payment without any preference or priority one
over another.
2. DEFINITIONS
2.1 In this Instrument and in the Conditions and the Schedules hereto the
following expressions set out on the left shall bear the meanings set
against them on the right:-
"ACCOUNT ADJUSTMENT EVENT" means any of those events listed in paragraphs
4.1 to 4.12 inclusive of Schedule 2, Part 2, paragraph 4 of the Earn Out
Agreement;
"BOARD DECISION EVENT" means any of those events listed in 5.1.1 to 5.1.12
inclusive of Clause 5 (Decisions of the Board) of the Earn Out Agreement;
"BUSINESS DAY" means any day on which banks in London are generally open
for the transaction of all classes of business usually carried on by them
in Sterling;
"CLAIM" has the meaning given to it in the Umbrella Agreement;
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"CONDITIONS" means the Conditions set out in the annex to the Certificate
in Schedule 1 hereto and the word "Condition" followed by a number refers
to that one of the Conditions so numbered;
"EARN OUT AGREEMENT" means the earn out agreement dated the same date as
this Instrument and made between Anthony David Galley (1), the Company (2)
and the Guarantor (3);
"GALLEY" means Anthony Galley or his appointee, if any, for the purposes
of consent under Condition 6.1(xii);
"GUARANTEE" means the guarantee contained in Clause 10 given by the
Guarantor upon and with the benefit of the terms and conditions contained
in Schedule 2;
"INSTRUMENT" means this Instrument (including the Conditions);
"MARGIN" means eight per cent (8%) per annum;
"NOTES" means all the Notes of the same series constituted by this
Instrument for the time being outstanding (including the Conditions
annexed to each of them);
"NOTEHOLDER" means the persons whose names are for the time being entered
in the Register as the holders of the Notes;
"OBLIGORS" means the Company and the Guarantor;
"PRINCIPAL AMOUNT" has the meaning given to it in Clause 3;
"PRINCIPAL SUM" means the principal amount outstanding under each of the
Notes from time to time;
"REGISTER" means the register to be maintained under paragraph 1 of
Schedule 3;
"REPAYMENT DATE" means any of the dates referred to in Conditions 1 or 2;
"SECURITY TRUSTEE" means Anthony Galley of Beacon Wey, The Hangers,
Bishops Waltham, SO32 1FZ;
"SHAREHOLDER" means The Cooper Companies, Inc, being the holder of 100% of
the issued share capital of the Company;
"SHARES CHARGE" means the third party shares charge dated on or about the
date of this Instrument made between the Shareholder (1) and the Security
Trustee (2);
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"SUBORDINATION AGREEMENT" means the subordination agreement dated on or
about the date of this Instrument made between the Guarantor (1), the
Shareholder (2), the Noteholders (3) and KeyBank National Association (4);
"SUBSIDIARY" bears the same meaning in this Note as is given to the word
"subsidiary" in section 736 Companies Act 1985 or any statutory
modification or re-enactment thereof;
"UMBRELLA AGREEMENT" means the agreement dated on or about the date of
this Instrument made between Anthony Galley, the Company and the
Shareholder relating to the sale and purchase of shares in Aspect Vision
Care Limited and other companies; and
"WARRANTOR" means the Vendor as defined under the Umbrella Agreement.
2.2 Unless the content otherwise requires, words denoting persons shall
include corporations; words denoting the masculine gender shall include
the feminine; and words denoting the singular shall include the plural and
vice versa.
2.3 The headings are for convenience only and shall not affect the
interpretation hereof.
2.4 References to Schedules, Clauses, sub-Clauses, paragraphs and
sub-paragraphs are to Schedules, Clauses, sub-Clauses, paragraphs and
sub-paragraphs herein.
2.5 References to defined parties shall also be deemed to include references
to their respective successors, assigns and transferees.
3. PRINCIPAL AMOUNT
3.1. The Company shall pay to the Noteholders the sum of 'L'15,000,000
pounds sterling (such sum or such lESSEr principal amount as is
outstanding hereunder from time to time is hereinafter referred to as the
"PRINCIPAL AMOUNT") in accordance with the Conditions.
4. INTEREST
4.1 The Company shall pay to the Noteholders until payment of the Principal
Amount in full interest thereon in accordance with the Conditions.
5. PAYMENTS
5.1 The payments to be made under Clause 3 and 4 above or under the Guarantee
shall be made in accordance with paragraph 5 of Schedule 3.
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6. CERTIFICATES
6.1 The Company shall issue to each Noteholder a certificate for the Notes
held by that Noteholder. Each certificate shall bear a denoting number and
shall be issued to a Noteholder executed by the Company as a deed in the
manner provided in the Company's Articles of Association from time to time
or in accordance with Statute or both. Every such certificate shall be
substantially in the form set out in Schedule 1 and shall have endorsed
thereon the Conditions.
7. CONDITIONS
7.1 The Notes shall be held subject to the Conditions and the provisions of
this Instrument which shall be binding on the Company and the Noteholders
and all persons claiming through or under them.
8. NOTICE OF EVENT OF DEFAULT
8.1 The Company shall give notice to the Guarantor and the Noteholders upon it
becoming aware of the occurrence of any of the events specified in
Condition 6 and upon the occurrence of any event which with the passing of
time, giving of notice, determination of materiality or satisfaction of
any other condition would become such an event.
9. CONDITIONS AND SCHEDULES
9.1 The Company shall at all times observe and perform the Conditions and the
provisions set out in Schedule 3 and Schedule 4 as if the same were set
out herein.
10. GUARANTEE
10.1 Subject to the terms of the Subordination Agreement, the Guarantor hereby
unconditionally and irrevocably guarantees the payment of principal and
interest owing in respect of the Notes subject to and with the benefit of
the terms and conditions contained in Schedule 2 which shall be deemed to
be a part of this Instrument.
11. SHARES CHARGE
11.1 The Shareholder has created security in favour of the Security Trustee on
the terms set out in the Shares Charge in order to secure the obligations
of the Company under this Instrument.
12. STOCK EXCHANGE
12.1 No application shall be made to any stock exchange for permission to deal
in or for an official or other listing or quotation in respect of the
Notes.
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13. NOTICES
13.1 Any notice or demand under the Notes to or upon the Company shall be
deemed to have been properly served upon it if the same shall have been
delivered or sent by letter post to it at its registered office, with a
copy to the Guarantor marked for the attention of Robert S. Weiss, Chief
Financial Officer at 6140 Stoneridge Mall Road, Suite 590, Pleasanton, CA
94588, USA.
13.2 A notice or demand (or copy thereof) sent by first-class letter post shall
if the same shall have been posted before the last scheduled collection of
letters from the letter box in which the same is posted on any day be
deemed to have been served upon the addressee at 10.00 am on the day 2
clear days after posting, or in the case of air mail 5 clear days after
posting (or if the next succeeding day be a Sunday or any other day upon
which no delivery of letters is made at 10.00 am on the next succeeding
day but one).
14. DISTINCT PROVISIONS
14.1 Each of the provisions of this Instrument shall be severable and distinct
from one another and if at any time any one or more of such provisions is
or becomes invalid, illegal or unenforceable the validity, legality and
enforceability of the remaining provisions of this Note shall not in any
way be affected or impaired thereby.
15. GOVERNING LAW AND JURISDICTION
15.1 This Instrument and the Schedules hereto shall be governed by and
construed in accordance with English law.
15.2 Each of the Company and the Guarantor agrees for the benefit of the
Noteholders that the courts of England shall have jurisdiction to hear and
determine, any suit, action or proceeding, and to settle any dispute,
which may arise out of or in connection with this Instrument and the
Guarantee and, for such purposes, irrevocably submits to the jurisdiction
of such courts.
15.3 Each of the Company and the Guarantor irrevocably waives any objection
which it might now or hereafter have to the courts referred to in Clause
15.2 being nominated as the forum to hear and determine any suit, action
or proceeding, and to settle any dispute, which may arise out of or in
connection with this Instrument and the Guarantee and agrees not to claim
that any such court is not a convenient or appropriate forum.
15.4 The Guarantor agrees that the process by which any suit, action or
proceeding is begun may be served on it by being delivered in connection
with any suit, action or proceeding in England, to the registered office
for the time being of the Company, with a copy to the Guarantor marked for
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the attention of Robert S. Weiss, Chief Financial Officer at 6140
Stoneridge Mall Road, Suite 590, Pleasanton, CA 94588, USA.
15.5 The submission to the jurisdiction of the courts referred to in Clause
15.2 shall not (and shall not be construed so as to) limit the right of
the Noteholders to take proceedings against the Company or the Guarantor
in any other court of competent jurisdiction nor shall the taking of
proceedings in any one or more jurisdictions preclude the taking of
proceedings in any other jurisdiction, whether concurrently or not.
16. DELIVERY
16.1 This Deed shall be treated as delivered upon being dated.
IN WITNESS of which the Company has executed this Deed as a deed and the
Guarantor has executed this instrument as a deed in the manner permitted by the
laws of the territory in which the Guarantor is incorporated for the execution
of documents by such a company in accordance with the Foreign Companies
(Execution of Documents) Regulations 1994 and each of the Company and the
Guarantor has delivered this Deed upon dating it.
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SCHEDULE 1
CERTIFICATE
'L'[ ] Note No [ ]
--------------
Aspect Vision Holdings Limited
(Registered No. 3448379)
Incorporated under the Companies Act 1985
Created and issued pursuant to the Memorandum and Articles of Association of
the Company and to a resolution of the Board of Directors passed on [ ]1997
THIS IS TO CERTIFY THAT the undermentioned is the registered holder of the
amount set out below of the 8 per cent Fixed Rate Guaranteed Secured Loan Notes
[19 / ] constituted by an instrument created by the Company (1) and The Cooper
Companies, Inc (the "GUARANTOR") (2) on [ ] 1997 (the "INSTRUMENT") and issued
with the benefit of and subject to the provisions contained in the Instrument
and the Conditions and the Guarantee.
Name and Address of Holder Amount of Notes
- -------------------------- ---------------
[ ] [ ]
1. The Notes are payable in accordance with the Conditions.
2. The payment by the Company of the principal amount of the Notes (and
interest thereon) is guaranteed by the Guarantor on the terms of the
"Guarantee" a copy of which is annexed hereto.
3. This Certificate must be surrendered before any transfer whether of the
whole or any part of the Notes comprised in it can be registered or any
new certificate issued in exchange.
4. The Notes are transferable in amounts and multiples of 'L'1.
5. Any change of address of the Noteholder must be notified in writing signed
by the Noteholder to the Company at its registered office from time to
time.
6. A copy of the Instrument constituting the Notes is available for
inspection at such registered office.
7. Words and expressions defined in the Instrument shall have the same
meanings when used herein.
8. The Guarantee is subject to the terms and conditions of a subordination
and priorities agreement dated on the same date as the Instrument and
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made between the Guarantor (1), The Cooper Companies, Inc as share chargor
(2), the Noteholders (3) and KeyBank National Association as agent (4).
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Dated: [ ] 1997
EXECUTED AS A DEED by )
ASPECT VISION HOLDINGS LIMITED was )
hereunto affixed in the )
presence of: )
Director
Director/Secretary
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Annex to the Certificate
Conditions to the 8 per cent Fixed Rate
Guaranteed Secured Loan Notes 'L'15,000,000
issued by Aspect Vision Holdings Limited
Payment and Purchase
17. PAYMENT DATE
17.1 Unless previously purchased or paid off under the following Conditions the
Principal Sum shall be paid off on the date 5 years after the date of
issue of the Notes (or if that day is not a Business Day, the next
succeeding Business Day) together with interest accrued down to the date
of repayment.
18. PREPAYMENT
18.1 The Company may, at any time 2 years after the date of this Instrument,
upon not less than 3 months' prior written notice to the Noteholder (which
shall be irrevocable and shall oblige the Company to repay the relevant
amount on the Repayment Date specified) prepay the Principal Sum in whole
or in part (but if in part in an amount of 'L'100,000 or AN integral
multiple thereof) without penalty but together with accrued interest and
on the last day of any Interest Period (as hereinafter defined).
Prepayments of less than the whole of the Principal Sum shall be paid to
each Noteholder in the proportion that the Principal Sum of all the Notes
held by that Noteholder bears to the Principal Amount.
19. CANCELLATION
19.1 Once paid off or purchased by the Company the Notes shall be cancelled and
shall not be kept alive for the purposes of reissue or be reissued.
20. INTEREST
20.1 Until such time as the Principal Sum is repaid in full in accordance with
the provisions of this Note the Company will pay interest to the
Noteholder on the Principal Sum annually in arrear on the last Business
Day of October (each an "INTEREST DATE") in each year in respect of the
twelve months beginning on and including an Interest Date (each an
"INTEREST PERIOD") calculated on the basis and at the rate provided in
Conditions 4.2 to 4.6 below. The first payment of such interest shall be
made on 31st October 1998 in respect of the period to that date and shall
be calculated from and including the date of issue of this Note up to (but
excluding) such Interest Date.
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20.2 Interest on the Note will be calculated by the Noteholder at the rate of
eight per cent (8%) per annum.
20.3 Interest on the Note will be calculated on the basis of a 365 day year by
reference to the number of days in the relevant Interest Period or in any
broken period.
20.4 The Company shall deliver up to the Noteholders in respect of the
interest paid to each Noteholder within 7 days after payment of such
interest, a certificate as to the gross amount of such payment and the
amount of tax deducted or withheld.
20.5 All payments due in relation to the Notes shall be paid free of any
set-off or counterclaim, other than pursuant to Condition 7 and, save as
required by law, without any withholding or deduction.
20.6 If the Company does not pay any sum payable under the Instrument
(including payment of interest under Condition 4.2) on its due date it
shall pay interest on such sum for the period beginning on such due date
until full discharge at the rate of nine per cent (9%) per annum.
21. DETERMINATIONS
21.1 All determinations made by the Company of interest or other amounts due by
the Company shall be conclusive and binding upon the Noteholder save for
manifest error.
22. EVENTS OF DEFAULT
22.1 On the occurrence of any of the following events:
(i) if the Company makes default for more than five days in the payment
of any principal or interest payable under the Note; or
(ii) if an order is made or effective resolution is passed for winding up
any Obligor (other than in the case of such reconstruction or
amalgamation as is referred to in Condition 6.1(iv) below); or
(iii) if any incumbrancer takes possession or a receiver is appointed of
all or a material part of the undertaking property and assets of any
Obligor; or
(iv) if any Obligor shall stop or cease payment or cease to carry on its
business otherwise than in connection with a reconstruction or
amalgamation previously approved in writing by the Noteholder; or
(v) if any Obligor is unable to pay its debts within the meaning of
section 123(1) Insolvency Act 1986 (or any statutory re-enactment
thereof); or
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(vi) if the Company shall default in the observance or performance of any
material provision of the Notes or these Conditions (other than a
provision relating to the payment of principal money or interest)
and, if such default shall be capable of remedy, fail to remedy the
same within 20 Business Days of written notice given by the
Noteholder requiring the same to be remedied or if any
representation made by the Company in Condition 9 is incorrect when
made in a material respect; or
(vii) if the Guarantor shall default in the observance or performance of
any material provision of this Instrument or the Guarantee and, if
such default shall be capable of remedy, fail to remedy the same
within 20 Business Days of written notice given by the Noteholder
requiring the same to be remedied or if any representation made by
the Guarantor in paragraph 13 of Schedule 2 of the Instrument is
incorrect in any material respect; or
(viii) if the Shareholder shall default in the observance or performance
of any material provision of the Shares Charge and, if such default
shall be capable of remedy, fail to remedy the same within 20
Business Days of written notice given by the Noteholder requiring
the same to be remedied or if any representation made by the
Shareholder in Clause 7 of the Shares Charge is incorrect in any
material respect; or
(ix) if a proposal for a voluntary arrangement is made by any Obligor
with its creditors pursuant to section 1 Insolvency Act 1986 (or any
statutory modification or re-enactment thereof); or
(x) if a petition is presented for an administration order to be made in
respect of any Obligor under the Insolvency Act 1986 (or any
statutory modification or re-enactment thereof); or
(xi) anything analagous to or having substantially the same effect to any
of the events set out in Conditions 6.1 (ii), (iii), (v), (ix) or
(x) occurs in any applicable jurisdiction of any Obligor;
(xii) if any Account Adjustment Event shall occur without the prior
written consent of Galley and the annual sales or the net income
targets have not fallen below the levels referred to in Clause 5.2
of the Earn Out Agreement, or if any Board Decision Event shall
occur without the prior written consent of Galley; or
(xiii) if any indebtedness in respect of borrowed monies of any Obligor in
excess of 'L'2,000,000 is not paid when due or is declared to be
or otherwise becomes due and payable prior to its specified maturity
or any creditor of any Obligor becomes entitled to declare any such
indebtedness due and payable prior to its specified maturity,
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then such event shall constitute a default and at any time whilst
such default remains unremedied if the Noteholders shall so resolve
by ordinary resolution (which resolution shall be deemed to be
binding on all the Noteholders) the Principal Amount together with
all accrued interest and other monies payable under the Note shall
become immediately repayable forthwith upon demand by the Security
Trustee (on behalf of all the Noteholders) or by all the Noteholders
and the Company shall repay such sums, provided always that in the
event of the occurrence of an event referred to in Condition
6.1(xii) (Account Adjustment Event) the amount repayable by the
Company shall be the Principal Amount less six million pounds
sterling ('L'6,000,000) (the "Net Amount") together with All
accrued interest on the Net Amount.
23. SET-OFF
23.1 The Company shall be entitled (without prejudice to any other rights it
may have) to set off and retain absolutely against any liability which it
may have to pay monies pursuant to any provision of the Instrument
(including but not limited to Clauses 3 and 4 and whether or not such
liability be to the original or to any subsequent Noteholder), any sums or
sums which the Warrantor or his legal or personal representatives is or
are liable to pay, or which have been agreed to be paid, to the Company in
connection with a Claim or pursuant to the provisions of Clause 10 (Set
Off) of the Umbrella Agreement.
23.2 The Principal Amount (and the relevant Principal Sum of each Note) shall
be deemed to be reduced with effect from the date of this Instrument by
the amount which the Company is entitled to set off pursuant to this
Condition 7 and Clause 10 (Set Off) of the Umbrella Agreement and
appropriate interest adjustment calculations shall be made in respect of
any interest already paid so that interest shall only accrue and be
payable in respect of the reduced Principal Amount. Any interest paid on
the amount by which the Principal Amount is reduced shall be deducted from
the next and subsequent interest payments and, if the amount of future
interest payments is insufficient to permit such deductions in full, shall
be deducted from the Principal Amount (but in that case without any
further adjustment of interest payable) (and the relevant Principal Sum of
each Note), in each case in the proportion that the Principal Sum of all
the Notes held by that Noteholder bears to the Principal Amount.
23.3 The right of set off conferred on the Company shall apply whether or not
such right is exercised before or after the transfer of the Notes or any
part thereof by any Noteholder or any subsequent transfer and whether or
not the events giving rise to the exercise of such right arise before or
after such transfer or any subsequent transfer.
23.4 Every person to whom the Notes (or any part thereof) is transferred, or
who becomes entitled to the Notes (or any part thereof) in consequence of
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the death or bankruptcy of any Noteholder, shall take such Notes subject
to the right of set off conferred on the Company and any application by or
on behalf of such person to have his name entered as holder of such Notes
on the Register shall be deemed to include an acknowledgement by such
person that he takes such Notes subject to such right of set off.
23.5 Where the Company is entitled to exercise any right of set off in respect
of any Notes, the Company shall be under no obligation to exercise its
right of set off against the Notes held by any particular Noteholder
before exercising or seeking to exercise such right against the other
Noteholders.
23.6 The Company shall notify the Guarantor of any right of set off in respect
of any Notes that it has exercised (specifying in such notice the amount
by which the Principal Sum of each of the Notes is to be reduced pursuant
to such right of set off) and the amount recoverable under the Guarantee
shall be deemed for all purposes to have been reduced with effect from
such time of set off.
23.7 Where the Company is entitled to any right of set off under the Umbrella
Agreement or this Condition 7 and has exercised such right, the Noteholder
shall forthwith deliver the Certificate or Certificates relating to the
Notes over which the right of set off is exercised to the Company and the
Company shall either:-
(i) enface on such Certificate or Certificates a memorandum of the
amount and date of the set off; or
(ii) cancel the said Certificate or Certificates and without charge issue
to the Noteholder a fresh Certificate for the balance of the Notes
(if any).
24. ADDITIONAL NOTES
24.1 The Noteholder shall have the right to acquire (by subscription at nominal
value of an amount equal to up to one tenth of the Noteholder's holding of
Notes) additional loan notes to be issued by the Company (the "ADDITIONAL
NOTES") on terms and conditions substantially the same as applicable to
the Notes, subject as follows:-
(i) the right shall be exercisable on the second anniversary of the date
of the Instrument and on the first Business Day of each month
thereafter until redemption by giving not less than 30 days' prior
written notice to the Company and shall be exercisable only once in
relation to each Note;
(ii) the rate of interest on the Additional Notes shall be 4 per cent per
annum; and
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(iii) the Additional Notes shall not include any right to acquire
additional securities.
25. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to and for the benefit of the
Noteholders that:-
25.1 it is a corporation duly organised and validly existing under the laws of
England and Wales;
25.2 it has fully power and authority to enter into and perform the Instrument
and has taken all necessary corporate or other action to authorise the
execution, delivery and performance of the Instrument;
25.3 all action, conditions and things required by all applicable laws and
regulations to be taken, fulfilled, obtained or done in order to enable it
lawfully to enter into, exercise its rights under and perform and comply
with its obligations under the Instrument have been taken, fulfilled,
obtained or done;
25.4 the execution by it of the Instrument and the exercise by it of its rights
and performance of or compliance with its obligations under the Instrument
do not and will not violate (i) its constitutional documents or any law or
regulation to which it or any of its assets is subject or (ii) to an
extent or in a manner which has or could have a material adverse effect on
its duty to perform its payment obligations under the Instrument, any
agreement which is binding upon it;
25.5 its obligations under the Instrument are legal, valid and binding.
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SCHEDULE 2
THE GUARANTEE
26. GUARANTEE
26.1 Subject to the terms of the Subordination Agreement, the Guarantor hereby
irrevocably and unconditionally undertakes to each Noteholder that:
(i) if the Notes shall become repayable pursuant to the terms of
Condition 6 of the Instrument and are not redeemed or repaid by the
Company in accordance with its obligations, then the Guarantor will
pay to the Noteholders subject to and in accordance with the
provisions of the Instrument the principal amount of the Notes
together with any interest payable in respect of the Notes up to the
date of payment by the Guarantor provided that, for the avoidance of
doubt, if the Guarantor is required to make any deductions in
respect of tax on interest unpaid on the relevant Note(s), the
Guarantor will not be required to make any additional payment to the
relevant Noteholder; and
(ii) payments made by the Guarantor under sub-paragraph 1.1(i) above
shall be made within seven (7) days after receipt of the documents
specified in paragraph 2.1 below in relation to such Noteholder by
the Guarantor's agent for service of process at its registered
office which at the date hereof is at Aspect Vision Holdings
Limited, Unit 2, South Point, Hamble, Southampton, SO31 4RF, marked
for the attention of Gregory Fryling, with a copy to the Guarantor
marked for the attention of Robert S. Weiss, Chief Financial Officer
at 6140 Stoneridge Mall Road, Suite 590, Pleasanton, CA 94588, USA.
27. DEMAND
27.1 A Noteholder claiming payment under paragraph 1 above must deliver to the
Guarantor's agent for service of process (with a copy to the Guarantor) at
its registered office:
(i) a demand in writing in the form set out in the Appendix to the
Guarantee signed by or on behalf of the Noteholder or in the case of
joint Noteholders by or on behalf of at least two of such joint
Noteholders showing the full name(s) and registered address(es) of
the Noteholder(s) concerned; and
(ii) the Certificate(s) for the Notes in respect of which the claim is
made or if the Certificate(s) shall be lost or shall have been sent
to the Company for re-payment and shall not have been returned to
the Noteholder such indemnity in lieu as the Guarantor may
reasonably require.
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27.2 The Guarantor shall not be under any duty to establish whether a claim by
a Noteholder has been validly made but shall be entitled to assume that
any such claim has been so validly made.
27.3 No demand under this Guarantee shall be valid or result in any liability
on the part of the Guarantor hereunder unless the demand pursuant to
paragraph 2.1 above is made, and received by the Guarantor's agent for
service of process (with a copy to the Guarantor), in accordance with the
provisions of this Guarantee, on or before the first Business Day falling
six months after the date on which the Notes become repayable.
28. MAXIMUM AGGREGATE LIABILITY
28.1 The maximum aggregate liability of the Guarantor in respect of the
principal amount of the Notes shall be limited to fifteen million pounds
sterling ('L'15,000,000) or such lesser amount as shall be The
Principal Amount of the Notes from time to time.
29. FAILURE TO EXERCISE
29.1 Subject to the provisions of paragraph 2 of this Guarantee, no failure or
delay by any Noteholder in exercising any right, power or privilege
hereunder shall operate as a waiver thereof.
30. CONTINUING UNDERTAKINGS
30.1 The undertakings contained in this Guarantee are continuing undertakings
and shall remain in force notwithstanding:
(i) that any obligation of the Company in respect of the Notes may be
void or unenforceable; or
(ii) the liquidation or dissolution of the Company or the appointment of
a Receiver or Administrator of all or any part of the assets of the
Company; or
(iii) that any action has been taken or not taken against the Company to
enforce the Noteholders' rights under the Instrument (including the
Conditions) or any judgment in respect thereof is obtained against
the Company.
31. LIABILITY NOT IMPAIRED
31.1 Subject to the provisions of paragraphs 2.3, 4 and 8 of this Guarantee,
the liability of the Guarantor hereunder shall not be impaired or
discharged to any extent by reason of any time or other compounding,
indulgence or relief which a Noteholder may grant to the Company or by any
forbearance whether as to payment or time or otherwise or any variation
compromise or release of the obligations of the Company or by any dealings
or
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transactions between the Noteholders and the Company or by any other
dealing or thing including, without limitation, circumstances affecting or
preventing the recovery of any amount under the Notes which, but for this
provision, might operate to exonerate or discharge the Guarantor from its
obligations under this Guarantee except that if any Noteholder shall
release the Company from any liability for the payment of principal or
interest hereunder then the Guarantor shall not be liable to pay such
amount in respect of which the Company has been released.
32. GUARANTOR CONSENT
32.1 Unless the Guarantor has otherwise consented thereto, it shall not be
bound by any such other matter or thing which would operate either to
increase its actual or contingent liabilities hereunder or extend any due
date for the payment of principal or interest.
33. CONTINUING GUARANTEE
33.1 This Guarantee is a continuing guarantee and subject to paragraph 2.3
above shall remain in full force and effect until all monies payable by
the Company under or in connection with the Notes have been discharged,
provided that, for the avoidance of doubt, this Guarantee shall cease
immediately in respect of any Notes purchased, redeemed or cancelled by
the Company or redeemed by the Company in accordance with the Instrument.
34. ADDITION
34.1 This Guarantee shall be in addition to and shall not be affected by any
other security or rights now or hereafter held or exercisable by any
Noteholder on account of or in respect of any of the monies the payment of
which is hereby guaranteed by the Guarantor, and this Guarantee may be
enforced without first having recourse to any such security or rights and
without any Noteholder first having to take any steps or proceedings
against the Company.
35. PRINCIPAL OBLIGOR
35.1 As a separate and independent stipulation the Guarantor agrees that any
monies expressed to be payable under the Notes which may not be
recoverable from the Company or the Guarantor by reason of any legal
limitation, disability or incapacity of the Company or the Guarantor or
any other fact or circumstances shall nevertheless be recoverable from the
Guarantor as sole and principal obligor.
36. IRREVOCABLE
36.1 This Guarantee is irrevocable in respect of the Note(s) held by each
Noteholder save where a Noteholder gives to the Guarantor a specific
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written release of the Guarantor's liability in relation to the whole or
any part of the Note(s) of such Noteholder.
37. VARIATION
37.1 Any variation of the terms of the Guarantee in relation to a Note shall be
considered valid and constituting part of this Guarantee provided such
variation shall be made in writing and signed on behalf of the Company, by
the relevant Noteholder or if such holder is a company on its behalf by
any director or the secretary of such company, and by or on behalf of the
Guarantor.
38. REPRESENTATIONS AND WARRANTIES
The Guarantor represents and warrants to and for the benefit of the
Noteholders that:-
38.1 it is a corporation duly organised and validly existing under the laws of
its jurisdiction of incorporation;
38.2 it has full power and authority to enter into and perform this Guarantee
and has taken all necessary corporate or other action to authorise the
execution, delivery and performance of this Guarantee;
38.3 it has taken, fulfilled, or done all action, conditions and things
required by all applicable laws and regulations order to enable it
lawfully to enter into, exercise its rights under and perform and comply
with its obligations under this Guarantee and make this Guarantee
admissible in evidence in England and Wales and its jurisdiction of
incorporation have been taken, fulfilled, obtained or done;
38.4 the execution by it of this Guarantee and the exercise by it of its rights
and performance of or compliance with its obligations under this Guarantee
do not and will not violate (i) its constitutional documents or any law or
regulation to which it or any of its assets is subject or (ii) to an
extent or in a manner which has or could have material adverse effect on
its ability to perform its payment obligations under the Instrument, any
agreement which is binding upon it; and
38.5 its obligations under this Guarantee are legal, valid and binding;
39. PAYMENT
39.1 All payments due under this Guarantee shall be paid free of any set-off or
counterclaim, other than pursuant to Condition 7 and, save as required by
law, without any withholding or deduction. If the Guarantor is required by
law to make any withholding or deduction from any payment under this
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Guarantee the Guarantor shall, within 21 days after such payment, deliver
up to each Noteholder a certificate as to the gross amount of such payment
and the amount of tax deducted or withheld.
40. NOTICE
40.1 Any notice (including a written demand for repayment referred to in
paragraph 2.1 above) to the Guarantor may be hand delivered or sent by
post in a pre-paid letter addressed to the Guarantor at the registered
office of the Guarantor's agent for service of process (with a copy to the
Guarantor) but notwithstanding anything to the contrary herein, no notice
shall be effective unless and until actually received by the Guarantor's
agent for service of process(with a copy to the Guarantor).
41. SUBROGATION
41.1 Until all principal and interest and all other sums owing or payable in
respect of the Notes and all other sums payable under this Guarantee or
the Instrument have been irrevocably paid, discharged or satisfied in full
the Guarantor waives all rights of subrogation and indemnity in respect of
any amounts paid by the Guarantor pursuant to the provisions of this
Guarantee.
42. NON-COMPETITION
42.1 Until all principal and interest and all other sums owing or payable in
respect of the Notes and all other sums payable under this Guarantee or
the Instrument have been irrevocably paid, discharged or satisfied in full
the Guarantor shall not:-
(i) exercise any right of subrogation, indemnity, set-off or
counterclaim against the Company, or any other person party to any
encumbrance, guarantee, indemnity or other assurance held or to be
held as security for the payment, performance or discharge of the
obligations guaranteed by this Guarantee (any such encumbrance,
guarantee, indemnity or other assurance together referred to in this
paragraph 17 as "related security") by reason of the performance by
the Guarantor of its obligations under this Guarantee;
(ii) claim payment of any other monies for the time being due to it by
the Company, or any person party to any related security by reason
of the performance by it of its obligations under this Guarantee;
(iii) claim or prove in a winding-up or dissolution of the Company, or any
other person party to any related security in competition with the
Noteholders in respect of any amounts paid by the Guarantor pursuant
to the provisions of this Guarantee; and
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if the Guarantor receives any sums in contravention of this paragraph 17
it shall hold them on trust to be applied promptly in or towards the
satisfaction of obligations guaranteed by this Guarantee.
42.2 The Guarantor warrants that it has not taken, and agrees that it will not
take, from the Company, or any person party to any related security any
encumbrance, guarantee or other assurance in respect of or in connection
with its obligations under this Guarantee.
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APPENDIX TO THE GUARANTEE - FORM OF DEMAND
To: Aspect Vision Holdings Limited
Address: [Registered Office of agent for service of process]
Copy to: The Cooper Companies Inc.
Address: 6140 Stoneridge Mall Road, Suite 590, Pleasanton, CA 94588, USA.
For the Attention of: Robert S. Weiss, Chief Financial Officer.
Dated [ 19 ]
1. This Demand is sent pursuant to the terms of an Instrument (the
"INSTRUMENT") entered into on [ ] 1997 by Aspect Vision Holdings Limited
(the "COMPANY") and The Cooper Companies, Inc.
2. I/We the undernamed is/are the registered holder(s) of the relevant Notes
issued under the terms of the Instrument.
Name ..........................
Registered Address ...................................
3. I/We enclose the Certificate(s) relating to the Note(s) in respect of
which the Demand is made.
4. I/We claim 'L' for principal and/or interest of 'L' together
with interest from today's date to the date of payment.
5. I/We confirm that:
(i) none of the Notes in respect of which such claim is made has
[not] been cancelled, redeemed or re-purchased by the Company; and
(ii) the sum demanded is due and payable and the Company has failed
to pay the sum demanded.
6. Payments under this demand should be made to the registered holder's bank
account at Bank plc of to the account
numbered .
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7. Please acknowledge receipt of this demand and the enclosed Certificate(s)
by returning the enclosed copy of this demand to the registered holder
whose name and address [first] appear in paragraph 2 above.
Signed ...............................
By or on behalf of the Registered Noteholder
Above signature confirmed to the signature of Mr/Mrs [ ]
.......................................
Noteholder's Banker's/Solicitor's
Bank/Firm/[ ]/Officer/Partner [ ]
Date [ 19 ]
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SCHEDULE 3
REGISTER AND TRANSFERS
43. REGISTER
43.1 A register of the Notes shall be kept by the Company at its registered
office and there shall be entered in such register:
(i) the name(s) and address(es) of the holder(s) of each of the Notes;
(ii) the principal amount of each of the Notes and the dates on which any
parts of such principal amount are repaid; and
(iii) the date on which the name of each holder was first entered therein
in respect of each of the Notes of which he is the holder.
43.2 Upon any change of address of the holder of any of the Notes being
notified to the Company the said register shall be altered accordingly.
The Noteholders or any of them and any person authorised by any of the
Noteholders and the Guarantor shall be at liberty at all reasonable times
to inspect, copy and take extracts from such register.
44. ABSOLUTE OWNER
44.1 Except as required by law the Company and the Guarantor will recognise the
registered holder of any of the Notes as the absolute owner thereof and
shall not be bound to take notice or see to the execution of any trust
whether express implied or constructive to which any of the Notes may be
subject and the receipt of such holder or in the case of joint holders the
receipt of any of them for the interest from time to time accruing due in
respect thereof or for any other moneys payable in respect thereof shall
be a good discharge to the Company or the Guarantor notwithstanding any
notice it may have whether express or otherwise of the right title
interest or claim of any other person to or in such Notes interest or
moneys. No notice of any trust express implied or constructive shall be
entered on the register in respect of any of the Notes.
45. TRANSFER
45.1 Each of the Noteholders will be entitled to transfer any of the Notes held
by him in whole or in part in amounts of 'L'1 of Principal Sum or
intEgral multiples thereof by instrument in writing in the form prescribed
by the Stock Transfer Act 1963 or in any form usual or common prior to the
coming into operation of that Act or such other form as may be appropriate
and the Directors of the Company shall approve.
45.2 Every instrument of transfer must be signed by the transferor and the
transferor shall be deemed to remain the owner of the Notes registered in
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his name until the name of the transferee is entered in the register in
respect thereof.
45.3 Every instrument of transfer must be sent to or left for registration at
the registered office for the time being of the Company accompanied by the
certificate in respect of the Notes to be transferred and such other
evidence as the Directors of the Company may require to prove the title of
the transferor or his right to transfer such Notes.
45.4 All instruments of transfer which shall be registered will be retained by
the Company.
45.5 No fee shall be charged by the Company in respect of the registration of
any probate letters of administration certificate of marriage or death
power of attorney or other document relating to or affecting the title to
any of the Notes or for making any entry in the register affecting the
title to any of the Notes.
45.6 The registration of transfers may be suspended at such times and for such
period as the Company may determine provided always that such registration
shall not be suspended for more than 30 days in any one year.
45.7 Every Noteholder shall hold the Notes subject to the rights of set-off
conferred by the Umbrella Agreement or the Instrument.
46. DEATH/BANKRUPTCY
46.1 In the case of the death of a Noteholder the survivors or survivor where
the deceased was a joint holder and the executors or administrators of the
deceased where he was a sole or only surviving holder shall be the only
persons recognised by the Company and the Guarantor as having any title to
such Notes.
46.2 Any person becoming entitled to any of the Notes in consequence of the
death or bankruptcy of any holder may upon producing such evidence that he
sustains the character in respect of which he proposes to act under this
paragraph or of his title as the Directors of the Company shall think
sufficient be registered himself as the holder of such Notes or subject to
the preceding paragraphs as to transfer may transfer such Notes. The
Directors of the Company shall be at liberty to retain the interest
payable upon any Notes which any person under this and the last preceding
paragraph is entitled to transfer until such person shall be registered or
duly transfer the same as aforesaid.
47. PAYMENTS
47.1 Any interest or other moneys payable on or in respect of any of the Notes
shall be paid in such manner and in such place within the United Kingdom
as the Noteholder shall reasonably direct and, if no such direction is
given
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to the Company in writing at least 20 Business Days prior to the relevant
payment, may be paid by crossed cheque or warrant sent through the post to
the registered address of the holder or person entitled thereto or in the
case of joint holders to the registered address of that one of the joint
holders who is first named on the Register in respect of such Notes or to
such person and to such address as to the holder or joint holders may in
writing direct. Every such cheque or warrant shall be made payable to the
order of the person to whom it is sent or to such person or persons as the
holder or joint holders may in writing direct and payment of the cheque or
warrant shall be satisfaction of the moneys represented thereby. Every
such cheque or warrant shall be sent at the risk of the person entitled to
the moneys represented thereby.
48. DEFACED NOTE
48.1 If any of the Notes be worn out or defaced then upon surrender thereof to
the Directors of the Company they shall cancel the same and issue a
replacement Note in lieu thereof and if any of the Notes be lost or
destroyed then upon proof thereof to the satisfaction of the Directors of
the Company and on such terms as to evidence and indemnity and the payment
of out-of-pocket expenses of the Company in investigating evidence as the
Directors of the Company may deem adequate being given a new certificate
in lieu thereof may be issued to the persons entitled to such lost or
destroyed Note. An entry as to the issue of the new certificate and
indemnity (if any) shall be made in the Register. There shall be paid to
the Company in respect of any replaced Note issued under this paragraph
such sum as the Directors of the Company shall determine not exceeding the
sum of Fifty pounds ('L'50).
49. NOTICES
49.1 Any notice or other document may be given or sent to any holder of any of
the Notes by sending the same by first or second class post in a prepaid
letter addressed to such holder (if he has a registered address in the
United Kingdom) at his registered address or (if he has no registered
address within the United Kingdom) at the address (if any) within the
United Kingdom supplied by him to the Company for the giving of notice to
him or to his registered address.
49.2 Any notice given by post in accordance with the preceding paragraph shall
be deemed to have been served 48 hours after the time when it is posted
and in proving such service it shall be sufficient to prove that the
envelope containing the notice was properly addressed stamped and posted.
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SCHEDULE 4
MEETINGS OF THE NOTEHOLDERS
50. CONVENE
50.1 The Company may at any time and shall either upon a request in writing
signed by the registered holders of more than 50% of the Principal Amount
or upon a request in writing from the Guarantor convene a meeting of the
Noteholders. All such meetings shall be held at the premises of the
Company.
51. NOTICE
51.1 At least 14 days' notice, or when the meeting is being convened for the
purpose of passing an Extraordinary Resolution, at least 21 days' notice
(exclusive in each case of the day on which the notice is served or deemed
to be served and of the day for which the notice is given) of every
meeting, shall be given to the Guarantor and the Noteholders in manner
provided by the provisions in that behalf contained in the Second and
Third Schedules of the Instrument. The notice shall specify the place day
and hour of meeting and the general nature of the business to be
transacted but it shall not be necessary except in the case of an
Extraordinary Resolution to specify in the notice the terms of the
resolutions to be proposed.
52. QUORUM
52.1 At any such meeting two of the Noteholders present in person or by proxy
shall form a quorum for the transaction of business save, if at any time
there is a sole Noteholder, then such Noteholder shall during such time,
constitute a quorum. The quorum for passing an Extraordinary Resolution
shall be two or more of the Noteholders present in person or by proxy
save, if at any time there is a sole Noteholder, then such Noteholder
shall during such time, constitute a quorum. No business shall be
transacted at any meeting unless the requisite quorum is present at the
commencement of business. For the purposes of this paragraph and of the
following paragraphs where the representative of a corporate Noteholder
authorised as provided by section 375 Companies Act 1985 is present at a
meeting of holders of the Notes, such corporate Noteholder shall be deemed
present in person.
52.2 If within a quarter of an hour from the time appointed for the meeting a
quorum is not present the meeting if convened upon the requisition of any
of the Noteholders shall be dissolved. In any other case it shall stand
adjourned to such day and time not being less than 14 days thereafter and
to such place as may be appointed by the Chairman and at such adjourned
meeting the holders of Notes present in person or by proxy and entitled to
vote whatever the amount of the Notes held by them shall be a quorum for
the transaction of any business including the passing of extraordinary
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resolutions and to decide upon all matters which could properly have been
disposed of at the meeting from which the adjournment took place. Notice
of any adjourned such meeting at which an Extraordinary Resolution is to
be submitted shall be given in the same manner as of an original meeting
and such notice shall state that the holders of Notes present in person or
by proxy at the adjourned meeting whatever their number and the amount of
Notes held by them will form a quorum.
53. CHAIRMAN
53.1 Some person nominated in writing by the Company shall preside at every
meeting and if no such person is nominated or if at any meeting the person
nominated shall not be present within 15 minutes after the time appointed
for holding the meeting the holders present shall choose one of their
number to be Chairman. Any Director and the Secretary and the solicitors
of the Company and the Guarantor and any other person authorised in that
behalf by the Company or the Guarantor may attend and speak at any
meeting, as may solicitors or other advisers of any of the Noteholders.
54. ADJOURNMENT
54.1 The Chairman may with the consent of any meeting at which a quorum is
present and shall if so directed by the meeting adjourn the meeting from
time to time and from place to place but no business shall be transacted
at any adjourned meeting except business which might lawfully have been
transacted at the meeting from which the adjournment took place.
55. VOTING
55.1 At any meeting a resolution put to the vote of the meeting shall be
decided on a show of hands unless a poll is (before or on the declaration
of the result of the show of hands) demanded by the Chairman or by one or
more Noteholders present in person or by proxy and holding or representing
not less than one-twentieth of the nominal amount of the Notes for the
time being outstanding. Unless a poll is so demanded a declaration by the
Chairman that a resolution has been carried or carried unanimously or by a
particular majority or lost shall be conclusive evidence of the fact
without proof of the number or proportion of the votes recorded in favour
of or against such resolution.
55.2 On a show of hands every one of the Noteholders who (being an individual)
is present in person or (being a corporation) is present by its authorised
representative shall have one vote. On a poll every one of the Noteholders
who is present in person or by proxy shall have one vote for every
'L'1 in nominal amount of the Notes of which he is the registered holder.
55.3 In the case of joint Noteholders the vote of the senior who tenders a vote
whether in person or by proxy shall be accepted to the exclusion of the
votes of the other joint holders and for this purpose seniority shall be
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determined by the order in which the names stand in the Register in
respect of joint holdings.
56. POLL
56.1 If a poll is duly demanded it shall be taken in such manner and either at
once or after an adjournment as the Chairman may direct and the result of
such a poll shall be deemed to be the resolution of the meeting at which
the poll was demanded.
56.2 A poll demanded on the election of a Chairman or on a question of
adjournment shall be taken at the meeting forthwith. A poll demanded on
any other question shall be taken either immediately or at such time (not
being more than 30 days from the date of the meeting) and place as the
Chairman may direct. No notice need be given of a poll not taken
immediately.
56.3 The demand for a poll shall not prevent the continuance of a meeting for
the transaction of any business other than the question on which the poll
has been demanded.
56.4 On a poll votes may be given either personally or by proxy and any of the
Noteholders entitled to more than one vote need not use all his votes or
cast all the votes he uses in the same way.
56.5 Appointing a proxy shall be in writing under the hand of the appointor or
of his attorney duly authorised in writing or if the appointor is a
corporation either under its common seal or under the hand of an officer
or attorney thereof, but need not be witnessed.
56.6 A person appointed to act as a proxy need not be one of the Noteholders.
56.7 The instrument appointing a proxy and the power of attorney or other
authority (if any) under which it is signed or a copy certified by a
solicitor of such power or authority shall be deposited at such place as
the Company may in the notice convening the meeting direct, or if no such
place is appointed then at the registered office of the Company not less
than 48 hours before the time appointed for holding the meeting or
adjourned meeting or the poll at which the person named in the instrument
proposes to vote and in default the instrument of proxy shall not be
treated as valid. No instrument appointing a proxy shall be valid after
the expiration of 12 months from the date named in it as the date of its
execution.
56.8 An instrument of proxy may be in the usual common form or in such other
form as the Directors of the Company may prescribe. The proxy shall be
deemed to include the right to demand or join in demanding a poll and
shall (except and to the extent to which the proxy is specially directed
to vote for or against any proposal) include power generally to act at the
meeting for the Noteholder giving the proxy. A proxy whether in the usual
common
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form or not shall unless the contrary is stated thereon be valid as well
for any adjournment of the meeting as for the meeting to which it relates
and need not be witnessed. Any form of proxy issued by the Company shall
be so worded that a registered holder of any of the Notes may direct his
proxy to cast his votes either for or against each resolution. It shall be
competent for any of the Noteholders to appoint the Chairman of the
meeting (without naming him) as his proxy.
56.9 A vote given in accordance with the terms of an instrument of proxy shall
be valid notwithstanding the previous death insanity or bankruptcy of the
principal or revocation of the proxy or of the authority under which the
proxy was executed or the transfer of the Note or Notes in respect of
which the proxy is given. Provided that no intimation in writing of such
death insanity bankruptcy revocation or transfer shall have been received
by the Company at its registered office before the commencement of the
meeting or adjourned meeting at which the proxy is used.
56.10 In the case of an equality of votes whether on a show of hands or on a
poll the Chairman of the meeting at which the show of hands takes place or
at which the poll is demanded shall be entitled to a casting vote in
addition to the votes (if any) to which he may be entitled as a
Noteholder.
57. POWERS OF MEETING
57.1 A meeting of the Noteholders shall in addition to all other powers have
the following powers exercisable by Extraordinary Resolution only:-
(i) Power to sanction any scheme for the reconstruction of the Company
or for the amalgamation of the Company with any other company and/or
the Guarantor;
(ii) Power to sanction the exchange of the Notes for or the conversion of
the Notes into shares stock debentures debenture stock or other
obligations or securities of the Company or any other company formed
or to be formed;
(iii) Power to sanction the release of the Company from the payment of all
or any part of the principal moneys and interest owing upon the
Notes;
(iv) Power to sanction any modification or compromise or any arrangement
in respect of the rights of the Noteholders against the Company or
against its properties or against the Guarantor; and
(v) Power to assent to any modification of the provisions contained in
the Instrument proposed or agreed to by the Company and/or the
Guarantor and to authorise some person on behalf of the
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Noteholders to concur in and execute any supplemental trust deed
embodying any such modification.
58. EXTRAORDINARY RESOLUTION
58.1 Subject as provided in paragraph 9.3 below, an Extraordinary Resolution
passed at a meeting of the Noteholders duly convened and held in
accordance with the provisions contained in this Fourth Schedule shall be
binding upon all the Noteholders, whether present or not present at the
meeting.
58.2 The expression "EXTRAORDINARY RESOLUTION" when used in this Note means a
resolution passed at a meeting of the Noteholders duly convened and held
in accordance with the provisions contained in this Fourth Schedule and
carried by a majority consisting of not less than three-fourths of the
persons voting thereat upon a show of hands or if a poll is duly demanded
by a majority consisting of not less than three-fourths of the votes given
on such poll.
58.3 No resolution, whether an Extraordinary Resolution or otherwise shall be
effective which would or might increase or change in any way any
obligation of the Company or the Guarantor hereunder or postpone the due
date for payment of any principal or interest in respect of any Note
without the consent of the Company and the Guarantor.
58.4 A resolution in writing signed by or on behalf of any one or more of the
Noteholders holding, or together holding, 75 per cent in nominal amount of
the Notes shall for all purposes be as valid and effectual as an
Extraordinary Resolution passed at a meeting of the Noteholders duly
convened and held in accordance with the provisions contained in this
Fourth Schedule. Such resolution in writing may be contained in one
document or in several documents in like form each signed by or on behalf
of one or more of such Noteholders.
59. MINUTES
59.1 Minutes of all resolutions and proceedings at each meeting shall be made
and duly entered in books to be from time to time provided for that
purpose by the Company and any such minute as aforesaid if purporting to
be signed by the Chairman of that meeting or by the Chairman of the next
succeeding meeting of the Noteholders shall be conclusive evidence of the
matters therein stated and until the contrary is proved every such meeting
in respect of the proceedings of which minutes have been made shall be
deemed to have been duly held and convened and all resolutions passed or
proceedings held thereat to have been duly passed and held.
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Executed as a Deed by )
ASPECT VISIONS HOLDINGS LIMITED )
and signed by )
)
)
) director
and )
)
) ..........................
) director
pursuant to a resolution of the Board
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Executed as a Deed )
by THE COOPER COMPANIES, INC )
and signed by )
)
)....................................
) (authorised signatory)
and )
)
)....................................
(authorised signatory)
acting with the authority of The Cooper Companies, Inc
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Exhibit 99.2
DATED 1997
THE COOPER COMPANIES, INC. (1)
AND
ANTHONY GALLEY
AS TRUSTEE FOR EACH OF THE NOTEHOLDERS (2)
----------------------------------------
THIRD PARTY CHARGES OVER SHARES
----------------------------------------
CAMERON MCKENNA
MITRE HOUSE
160 ALDERSGATE STREET
LONDON EC1A 4DD
T +44(0)171 367 3000
F +44(0)171 367 2000
1
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<PAGE>
TABLE OF CONTENTS
1. Definitions and Interpretation........................0
2. Security..............................................0
3. Secured Liabilities...................................0
4. Covenants by the Chargor..............................0
5. Dividends and Voting Rights...........................0
6. Non-Competition.......................................0
7. Representations and Warranties........................0
8. Continuing Security...................................0
9. Non-Exoneration.......................................0
10. Further Assurance.....................................0
11. Powers of Mortgagees..................................0
12. Powers to Lend, Borrower and Charge...................0
13. Application By the Security Trustee...................0
14. The Security Trustee as Trustee and Indemnity.........0
15. Liability.............................................0
16. Avoidance of Payments.................................0
17. Remedies, Waivers and Consents........................0
18. Notices...............................................0
19. Miscellaneous.........................................0
20. Governing Law and Jurisdiction........................0
Schedule 1............................................0
Schedule 2............................................0
Specific Shares Charged...............................0
<PAGE>
<PAGE>
THIS CHARGE is made the day of 1997
BETWEEN:-
(1) THE COOPER COMPANIES, INC a Delaware corporation (the "CHARGOR"); and
(2) ANTHONY GALLEY of Beacon Wey, The Hangers, Bishops Waltham, SO32 1FZ as
trustee for the Noteholders (as hereinafter defined) (in such capacity the
"SECURITY TRUSTEE").
WHEREAS:-
(A) By an instrument dated on the same date as this Deed and made between
Aspect Vision Holdings Limited as issuer (the "DEBTOR") (1) and The Cooper
Companies, Inc as guarantor (the "GUARANTOR") (2), the Debtor has agreed
to issue a series of 8 per cent Fixed Rate Guaranteed Secured Loan Notes
not exceeding 'L'15,000,000 in principal amount and the Guarantor has
agreed to guarantee repayment of the Notes on the terms and conditions
set out therein (the "Instrument").
(B) This Charge is given by the Chargor in favour of the Security Trustee as
trustee for the Noteholders (as defined below) as a continuing security
for the Notes (as defined below).
(C) The Board of Directors of the Chargor is satisfied that the giving of the
security herein contained is in the interests of the Chargor and has
passed a resolution to that effect.
NOW THIS DEED WITNESSES as follows:-
1. DEFINITIONS AND INTERPRETATION
1.1 In this Deed the following words and expressions shall have the following
meanings:-
"DEED" means this Charge as the same may from time to time be varied,
amended, supplemented, substituted, novated or assigned;
"DERIVATIVE ASSETS" means all assets deriving from any of the Shares
including all allotments, accretions, offers, rights, dividends and
benefits whatsoever at any time accruing, offered or arising in respect of
or incidental to any of the Shares and all stocks, shares, rights, money or
property accruing or offered at any time by way of conversion, redemption,
bonus, preference, exchange, option or otherwise in respect thereof;
"HOLDING COMPANY" and "SUBSIDIARY" are respectively as defined in Section
736 of the Companies Act 1985;
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"NOTEHOLDERS" has the meaning given to it in the Instrument, or any of
them;
"NOTES" has the meaning given to it in the Instrument; and
"SECURITY INTEREST" means any mortgage, charge, hypothecation, pledge,
lien, encumbrance, trust arrangement, contractual arrangement having the
effect of security, conditional sale or other title retention agreement or
other security interest whatsoever, howsoever created or arising.
1.2 In this Deed, the expressions "Security Trustee", "Noteholder", "Chargor"
and "Debtor" where the context admits include their respective transferees,
successors and assigns whether immediate or derivative.
1.3 In this Deed:
(i) references to sub-clauses, Clauses and Schedules are unless
otherwise stated to sub-clauses, clauses of and schedules to this
Deed;
(ii) any liability or power which may be exercised or any determination
which may be made hereunder by the Security Trustee may (save as
otherwise provided herein) be exercised or made in its absolute and
unfettered discretion and it shall not be obliged to give reasons
therefor;
(iii) references to statutes and/or statutory provisions shall be
construed as referring to such statutes or statutory provisions as
respectively replaced, amended, extended, consolidated or re-enacted
from time to time and shall include any order, regulation,
instrument or other subordinate legislation made under the relevant
statute or statutory provision;
(iv) the table of contents and headings to Clauses and Schedules are for
convenience only and have no legal effect;
(v) statements referring to the Security Trustee's capacity as trustee
for the Noteholders are by way of clarification and explanation only
and shall not prejudice the meaning of the "Security Trustee"
elsewhere in this Deed where such statements are not made and any
statement referring to monies, obligations or liabilities owing to,
or other rights, benefits or discretions granted to or created
hereunder for, or covenants, undertakings, or other agreements made
in favour of, the Security Trustee and/or the Noteholders, as the
case may be, are similarly by way of clarification and explanation
only and shall not prejudice the meaning of "Noteholders" elsewhere
in this Deed where such statements are not made;
1
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(vi) references herein to any agreement or document shall be construed as
referring to such agreement or document as the same may have been,
or may from time to time be varied, amended, supplemented,
substituted, novated or assigned;
(vii) the expression "person" shall be construed to include reference to
any person, firm, company, partnership, corporation or
unincorporated body of persons or any state or government or any
agency thereof; and
(viii) unless the context otherwise requires, words denoting the singular
number only shall include the plural and vice versa.
1.4 Both of the parties to this document intend it to be a deed and agree to
execute and deliver it as a deed.
2. SECURITY
2.1 In consideration of the Noteholders making available the Principal Sum
under each of the Notes to the Debtor under the Instrument, the Chargor
with full title guarantee and without the benefit of Section 6(2) of the
Law of Property (Miscellaneous Provisions) Act 1994 and to the intent that
the security hereby created shall rank as a continuing security hereby
charges to the Security Trustee by way of first fixed charge the shares in
the Debtor listed in the Schedule and any proceeds of sale arising
therefrom (the "SHARES") and, subject to Clause 5 (Dividends and Voting
Rights), the Derivative Assets.
3. SECURED LIABILITIES
3.1 The security created pursuant to Clause 2 shall stand as continuing
security for the payment to the Noteholders and the discharge on demand of
all indebtedness of the Debtor to the Noteholders, or any of them, under
the Notes.
4. COVENANTS BY THE CHARGOR
4.1 The Chargor covenants with the Security Trustee that during the continuance
of this security the Chargor will:-
(i) forthwith upon execution of this Deed deposit with the Security
Trustee all the share certificates of the Shares and instruments of
transfer (with the name of the transferee, the consideration and the
date left blank but otherwise duly completed and executed) relating
to the Shares;
2
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(ii) ensure so far as it is able that the Shares are at all times free
from any restriction on transfer (whether under any relevant
constitutive documents or otherwise) by the Security Trustee or its
nominees to perfect or enforce the security constituted or intended
to be constituted by this Deed;
(iii) upon the accrual, offer or issue of any Derivative Assets (apart
from dividends) which have not accrued or been issued to the
Security Trustee or nominees as registered holder of the Shares to
which those Derivative Assets relate, deliver to the Security
Trustee all such Derivative Assets and any certificates or documents
of title to the same together with instruments of transfer (with the
name of the transferee, the consideration and the date left blank
but otherwise duly completed and executed) relating to such
Derivative Assets;
(iv) notify the Security Trustee of the contents of any communication or
document received by it from the Debtor in relation to any of the
Shares or Derivative Assets;
(v) not, otherwise than in accordance with this Deed (without the prior
consent in writing of the Security Trustee):-
(a) permit any person other than the Chargor to be registered as
holder of the Shares or any part thereof;
(b) create or purport to create or permit to subsist any Security
Interest (other than in favour of the Security Trustee or a
Security Interest governed by the Subordination Agreement (as
defined in the Instrument)) on or over the Shares or the
Derivative Assets or any part thereof or interest therein or
right in respect thereof or enter into any agreement to grant or
create such a Security Interest;
(c) sell, transfer or otherwise dispose of the Shares or the
Derivative Assets or any part thereof or interest therein or
right in respect thereof or attempt or agree so to do; or
(d) do or cause or permit to be done anything which will
deliberately depreciate, jeopardise or prejudice the value to
the Noteholders of the Shares or the Derivative Assets.
5. DIVIDENDS AND VOTING RIGHTS
5.1 The Security Trustee hereby agrees with the Chargor that unless an Event of
Default (as set out in Condition 6 of the Instrument) has occurred and is
continuing:-
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(i) any dividends of the Shares (if any) will be for the account of the
Chargor; and
(ii) the Security Trustee or its nominees will exercise all voting and
other rights and powers attached to the Shares in such manner as the
Chargor may from time to time in writing direct provided that the
Security Trustee and its nominees (if any) shall be under no
obligation to exercise such rights as directed if in its or their
reasonable opinion the result would be a breach of Clause 4.1(v).
6. NON-COMPETITION
6.1 Untilall secured obligations referred to in Clause 3 have been paid,
discharged or satisfied in full the Chargor shall not:-
(i) exercise any right of subrogation, indemnity, set-off or
counterclaim against the Debtor or any other person party to any
encumbrance, guarantee, indemnity or other assurance held or to be
held as security for the payment, performance or discharge of the
obligations secured by this Deed (any such encumbrance, guarantee,
indemnity or other assurance together referred to in this Clause 6.1
as "related security") by reason of the performance by the Chargor
of its obligations under this Deed;
(ii) claim payment of any other monies for the time being due to it by
the Debtor or any person party to any related security by reason of
the performance by it of its obligations under this Deed;
(iii) claimor prove in a winding-up or dissolution of the Debtor or any
other person party to any related security in competition with the
Security Trustee in respect of any amounts paid by the Chargor
pursuant to the provisions of this Deed; and
if the Chargor receives any sums in contravention of this Clause 6.1 it
shall hold them on trust to be applied promptly in or towards the
satisfaction of obligations secured by this Deed.
6.2 The Chargor warrants that it has not taken, and agrees that it will not
take, from the Debtor, or any person party to any related security any
encumbrance, guarantee or other assurance in respect of or in connection
with its obligations under this Deed.
7. REPRESENTATIONS AND WARRANTIES
The Chargor represents and warrants to and for the benefit of the Security
Trustee that:-
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7.1 it is a corporation duly organised and validly existing under the laws of
its jurisdiction of incorporation;
7.2 it has fully power and authority to enter into and perform this Deed and
has taken all necessary corporate or other action to authorise the
execution, delivery and performance of this Deed;
7.3 it has taken all action, conditions and things required by all applicable
laws and regulations in order to enable it lawfully to enter into, exercise
its rights under and perform and comply with its obligations under this
Deed and make this Deed admissible in evidence in England and Wales and its
jurisdiction of incorporation have been taken, fulfilled, obtained or done;
7.4 the execution by it of this Deed and the exercise by it of its rights and
performance of or compliance with its obligations under this Deed do not
and will not violate (i) its constitutional documents or any law or
regulation to which it or any of its assets is subject or (ii) to an extent
or in a manner which has or could have a material adverse effect on its
ability to perform its payment obligations under the Instrument, any
agreement which is binding upon it; and
7.5 its obligations under this Deed are legal, valid and binding.
8. CONTINUING SECURITY
8.1 This security shall be an irrevocable continuing security and shall remain
in full force and effect until all secured liabilities referred to in
Clause 3 have been paid, discharged or satisfied in full.
9. NON-EXONERATION
9.1 If any purported obligation or liability of the Debtor to the Noteholders
which if valid would have been secured by this Deed is not or ceases to be
valid or enforceable against the Debtor on any ground whatsoever whether or
not known to the Noteholders, the security constituted by this Deed shall
nevertheless be enforceable against the Chargor.
9.2 The liability of the Chargor shall not be affected nor shall this Deed be
discharged or dismissed by reason of:-
(i) any security or right or remedy held by or available to the Security
Trustee and the Noteholders being or becoming wholly or in part
void, voidable or unenforceable on any ground whatsoever or by the
Security Trustee or any of the Noteholders varying, releasing or
failing to perfect or enforce any of the same;
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(ii) the Security Trustee or any of the Noteholders varying the liability
of or granting any time, indulgence or concession to the Debtor or
concurring in, accepting or varying any compromise, arrangement or
settlement or omitting to claim or enforce payment from the Debtor;
or
(iii) any act or omission which would not have discharged or affected the
liability of the Chargor had it been principal debtor instead of
surety or by anything done or omitted which but for this provision
might operate to exonerate the Chargor.
10. FURTHER ASSURANCE
10.1 The Chargor shall if and when reasonably required by the Security Trustee
execute such further documents and take such other steps as the Security
Trustee may from time to time reasonably require for perfecting its
Security in the Shares to secure the secured obligations referred to in
Clause 3.
10.2 The Chargor, by way of security and in order more fully to secure the
performance of the Chargor's obligations under this Deed, irrevocably
appoints the Security Trustee and the persons deriving title under it to be
its attorney for and in the name and on behalf and as the act and deed or
otherwise of the Security Trustee, if the Chargor shall be in breach of its
obligations under this Deed, to execute as a deed or under hand and deliver
and do all such assurances, acts and things which the Chargor is required,
but has failed, to execute and do under the covenants contained in this
Deed (including without limitation, to execute as a deed or under hand and
deliver any transfers or other documents which the Security Trustee may
require to perfect its title to any of the Shares or Derivative Assets.
11. POWERS OF MORTGAGEES
11.1 At any time after the Notes shall have become due and payable, the
Noteholders shall have demanded payment of any money hereby secured, or if
requested by the Chargor, the Security Trustee and any nominee of the
Security Trustee wheresoever situate may without further notice and without
the restrictions contained in Sections 93 or 103 of the Law of Property Act
1925 in respect of all or any of the Shares exercise all the powers or
rights which may be exercisable by the registered holder of the Shares and
all other powers conferred on mortgagees by the Law of Property Act 1925 as
hereby varied or extended.
11.2 In exercising the powers referred to in Clause 11.1, the Shares or any part
thereof may be sold or disposed of at such times, in such manner and
generally on such terms and conditions and for such consideration as the
Security Trustee may think fit. Any such sale or disposition may be for
cash,
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debentures or other obligations, shares, stock, securities or other
valuable consideration and be payable immediately or by instalments spread
over such period as the Security Trustee shall think fit.
11.3 No purchaser or other person shall be bound or concerned to see or enquire
whether the right of the Security Trustee to exercise any of the powers
hereby conferred has arisen or not or be concerned with notice to the
contrary or with the propriety of the exercise or purported exercise of any
such powers.
11.4 The Security Trustee may place and keep (for such time as he shall consider
prudent) any money recovered or realised pursuant to this Deed in a
separate suspense account without any obligation to apply the same or any
part thereof in or towards the discharge of the obligations secured by this
Deed.
12. POWERS TO LEND, BORROWER AND CHARGE
12.1 The Security Trustee and/or any of the Noteholders may at any time after
the Security Trustee's powers shall have become exercisable under Clause
11.1 advance, raise or borrow money on the security of the Shares or any
part thereof on such terms and conditions as they shall reasonably think
fit for the purpose of defraying any costs, charges, losses and expenses
which shall be properly paid or incurred in the enforcement of the security
over the Shares under this Deed.
13. APPLICATION BY THE SECURITY TRUSTEE
13.1 All money received by the Security Trustee in the exercise of any powers
conferred by this Deed shall be applied after the discharge of all
liabilities having priority thereto in or towards satisfaction of the
moneys owing to the Noteholders, whether as to principal, interest or
otherwise.
14. THE SECURITY TRUSTEE AS TRUSTEE AND INDEMNITY
14.1 The Security Trustee hereby declares itself trustee of the security and
other rights (including but not limited to the benefit of the covenants
contained herein), titles and interests constituted by this Deed and of all
monies, property and assets paid to the Security Trustee or held by the
Security Trustee or received or recovered by the Security Trustee pursuant
to or in connection with this Deed with effect from the date hereof to hold
the same on trust for each of the Noteholders absolutely pro rata to the
monies, obligations and liabilities of the Chargor to all the Noteholders
from time to time secured hereby.
14.2 All moneys received by the Security Trustee shall be held by it upon trust
for itself and the Noteholders according to their respective interests to
apply the same first in discharging any expenses incurred in enforcing the
security under
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this Deed and secondly in or towards satisfaction of the moneys,
obligations and liabilities secured by this Deed.
14.3 The trusts herein shall remain in force until whichever is the earlier of:-
(i) the expiration of a period of 80 years from the date hereof; or
(ii) receipt by the Security Trustee of confirmation in writing from all
of the Noteholders that there are no longer outstanding any monies
under the Notes.
14.4 Without prejudice to any right to indemnity by law given to trustees
generally, the Security Trustee shall be entitled to be indemnified and
kept indemnified out of the Shares or Derivative Assets in respect of all
liabilities, costs, charges, losses and expenses properly incurred or
suffered by him in the execution or the purported execution of the trusts
created by this Deed or of any powers, authorities or discretions vested in
him pursuant to this Deed and against all actions, proceedings, claims and
demands in respect of any matter or thing done or omitted or in any way
relating to the Shares or the provisions of this Deed or occasioned by any
breach by the Chargor of any of its covenants or other obligations to the
Security Trustee or any Noteholder hereunder or under the Instrument and
all sums necessary to effect and maintain such indemnity shall be an
additional charge on the Shares and shall be satisfied before any payment
is made thereout to any Noteholder.
15. LIABILITY
15.1 The Security Trustee shall not in any circumstances (either by reason of
taking possession of the Shares or any part thereof or for any other reason
whatsoever and whether as mortgagee in possession or on any other basis
whatsoever) be liable to account to the Chargor for anything except the
Security Trustee's actual receipts or be liable to the Chargor for any loss
or damage arising from any realisation by the Security Trustee of the
Shares or any part thereof or from any act, default or omission of the
Security Trustee in relation to the Shares or the Derivative Assets or any
part thereof (including without limitation, any neglect or failure to
present any interest coupon or any bond or stock drawn for repayment) or in
relation to any such realisation or from any exercise or non-exercise by
the Security Trustee of any power, authority or discretion conferred upon
it in relation to the Shares or the Derivative Assets or any part thereof
by or pursuant to this Deed or by the Law of Property Act 1925 or from any
failure to pay any call or instalment or to accept any offer or to notify
the Chargor of any such matter or for any negligence or default by its
nominees, correspondents or Security Trustees or for any other loss of any
nature whatsoever in connection with the Shares or the Derivative Assets.
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16. AVOIDANCE OF PAYMENTS
16.1 Any settlement, discharge or release between the Chargor and the Security
Trustee shall be conditional upon no security or payment to the Security
Trustee or any of the Noteholders by the Chargor, the Debtor or any other
person being avoided or reduced or ordered to be refunded by virtue of any
provisions of any enactments relating to bankruptcy, liquidation or
insolvency for the time being in force and notwithstanding any settlement,
discharge or release:-
(i) the Security Trustee shall forthwith release the certificates
relating to any Shares to the Chargor upon the discharge of all
secured obligations referred to in Clause 3; and
(ii) the Security Trustee shall be entitled to recover from the Chargor
subsequently (but not exceeding the value of the security hereby
charged) the value or amount of such security or payment avoided or
reduced as if such settlement, discharge or release had not occurred
and the Chargor agrees with the Security Trustee accordingly and
charges the Shares and the proceeds of sale thereof with any
liability under this Clause, whether actual and/or contingent.
17. REMEDIES, WAIVERS AND CONSENTS
17.1 No failure on the part of the Security Trustee or any Noteholder to
exercise, and no delay on its part in exercising, any right or remedy under
this Deed will operate as a waiver thereof, nor will any single or partial
exercise of any right or remedy preclude any other or further exercise
thereof or the exercise of any other right or remedy. The rights and
remedies provided in this Deed are cumulative and not exclusive of any
rights or remedies provided by law.
17.2 Any waiver and any consent by the Security Trustee under this Deed must be
in writing and may be given subject to any conditions thought fit by the
Security Trustee. Any waiver or consent shall be effective only in the
instance and for the purpose for which it is given.
18. NOTICES
18.1 Every notice, request, demand or other communication hereunder shall be in
writing delivered personally or by first-class registered mail or facsimile
transmission to the address or facsimile number, if any, of the addressee
set out below and marked for the attention of the persons set out below:-
(i) in the case of the Security Trustee if by letter to him at Beacon
Wey, The Hangers, Bishops Waltham, SO32 1FZ; and
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(ii) in the case of the Chargor to its agent for service of notice if by
letter to it at Aspect Vision Holdings Limited, Unit 2, South Point,
Hamble, Southampton, Hampshire SO31 4RF, in each case marked for the
attention of Greg Fryling with a copy to the Chargor marked for the
attention of Robert S. Weiss, Chief Financial Officer at 6140
Stoneridge Mall Road, Suite 590, Pleasanton, CA 94588, USA;
or at such other addresses or numbers, or for the attention of such other
persons, as the parties hereto may from time to time notify to each other.
18.2 Any notice, request, demand or other communication to be given or made
under this Deed shall be deemed to have been delivered, in the case of any
notice, request, demand or other communication given or made by personal
delivery or facsimile when despatched or delivered unless despatched or
delivered outside normal business hours when it shall be deemed to have
been delivered on the next normal business day following the date on which
it was despatched or, in the case of any notice, request, demand or other
communication given or made by letter, two normal business days after
having been posted by first class registered mail provided that each
notice, request, demand or other communication given or made by facsimile
shall, without prejudice to the validity or effectiveness of the same, be
confirmed by letter.
18.3 In the case of the death of any person a party hereto and until receipt by
the Security Trustee of notice in writing of the grant of representation to
the estate of the deceased, any notice or demand by the Security Trustee
sent by first class recorded delivery post or facsimile transmission as
aforesaid addressed to the deceased or his/her personal representatives at
the usual or last known place of abode or business of the deceased shall
for all purposes be deemed a sufficient service of a notice or demand by
the Security Trustee on the deceased and his/her personal representatives
and shall be as effectual as if the deceased were still living.
19. MISCELLANEOUS
19.1 Each of the provisions of this Deed is severable and distinct from the
others and if at any time one or more of such provisions is or becomes
invalid, illegal or unenforceable with respect to the Chargor the validity,
legality and enforceability of the remaining provisions hereof shall not in
any way be affected or impaired thereby.
19.2 This Deed may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument.
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20. GOVERNING LAW AND JURISDICTION
20.1 This Deed shall be governed by and interpreted and construed in accordance
with the law of England and Wales.
20.2 The Chargor agrees for the benefit of the Security Trustee that the courts
of England shall have jurisdiction to hear and determine, any suit, action
or proceedings, and to settle any dispute, which may arise out of or in
connection with this Deed and, for such purposes, irrevocably submits to
the jurisdiction of such courts.
20.3 The Chargor irrevocably waives any objection which it might now or
hereafter have to the courts referred to in Clause 20.2 being nominated as
the forum to hear and determine any suit, action or proceeding, and to
settle any dispute, which may arise out of or in connection with this Deed
and agrees not to claim that any such court is not a convenient or
appropriate forum.
20.4 The Chargor agrees that the process by which any suit, action or proceeding
is begun may be served on it by being delivered in connection with any
suit, action or proceeding in England, to the registered office for the
time being of the Debtor, with a copy to the Guarantor marked for the
attention of Robert S. Weiss, Chief Financial Officer at 6140 Stoneridge
Mall Road, Suite 590, Pleasanton, CA 94588, USA.
20.5 The submission to the jurisdiction of the courts referred to in Clause 20.2
shall not (and shall not be construed so as to) limit the right of the
Security Trustee to take proceedings against the Chargor in any other court
of competent jurisdiction nor shall the taking of proceedings in any one or
more jurisdictions preclude the taking of proceedings in any other
jurisdiction, whether concurrently or not.
IN WITNESS of which the Security Trustee has executed this instrument as a deed
and has delivered it upon dating it and the Chargor has executed this instrument
as a deed in the manner permitted by the laws of the territory in which the
Chargor is incorporated for the execution of documents by such a Company in
accordance with the Foreign Companies (Execution of Documents) Regulations 1994
and has delivered it upon dating it.
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SCHEDULE 1
THE NOTEHOLDERS
No. Noteholder Address
- --- ---------- --------
1. Geoffrey Harrison Galley Red Lodge
The Close
Totteridge
London N20 8PT
2. Anthony David Galley Beacon Wey
The Hangers
Bishops Waltham SO32 1FZ
3. Wilfred Trevor Brooker Grimbles Barn
Buckland Village
Aston Clinton
Buckinghamshire HP22 5HY
4. John Trevor De Carle Lowicks House
Sandy Lane
Tilford
Farnham
Surrey GU10 2BX
5. Clive De Carle The Little Lodge
The Prevue
Bucklebury
Berkshire
6. Ian Arthur McDermott 75 Upper Barn Copse
Fair Oak
Eastleigh
Hampshire SO50 8DB
7. R. B. Poole 7 Deans Way
Tarvin
Chester
8. Barrie Bevis 53 Wilderness Heights
West End
Southampton
Hampshire SO18 3PS
9. Ivor Atkinson 90 Queens Drive
Surbiton
Surrey KT5 8PP
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10. Giacomo Grassi
11. Fabrizio Lambertini
12. Norma Galley Red Lodge
The Close
Totteridge
London N20 8PT
13. Michael J Kelly 8 The Vineyards
North Baddesley
Southampton
Hampshire SO52 9PP
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SCHEDULE 2
SPECIFIC SHARES CHARGED
100,000 10p ordinary shares
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Executed as a Deed )
by THE COOPER COMPANIES, INC )
and signed by )
)
)
)
) ..................................
and ) (authorised signatory)
)
)
) ...................................
) (authorised signatory)
acting with the authority of The Cooper Companies, Inc
Executed as a Deed )
by ANTHONY GALLEY )
as trustee for each of the Noteholders )
)
)....................................
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Exhibit 99.3
Dated 1997
ANTHONY DAVID GALLEY (1)
ASPECT VISION HOLDINGS LIMITED (2)
AND
THE COOPER COMPANIES, INC. (3)
----------------------------------------------
EARN OUT AGREEMENT
----------------------------------------------
CAMERON MCKENNA
MITRE HOUSE
160 ALDERSGATE STREET
LONDON EC1A 4DD
T +44(0)171 367 3000
F +44(0)171 367 2000
<PAGE>
<PAGE>
THIS AGREEMENT is made the day of November 1997
BETWEEN:-
(1) ANTHONY DAVID GALLEY of Beacon Way, The Hangars, Bishops Waltham, SO32 1FZ
("Mr. Galley");
(2) ASPECT VISION HOLDINGS LIMITED (registered in England with number 3448379)
whose registered office is at Mitre House, 160 Aldersgate Street, London
EC1A 4DD ("AVH"); and
(3) THE COOPER COMPANIES, INC. a company incorporated in Delaware whose
principal office is at 6140 Stoneridge Mall Road, Suite 590, Pleasanton, CA
94588, USA ("TCC").
WHEREAS:
(A) Immediately prior to the exchange and execution of this Agreement:
- TCC was the beneficial owner of all the fully paid ordinary shares of
10p each in the capital of AVH;
- AVH had undertaken to Mr. Galley to issue to him a loan note as part
of the consideration for the sale of his shares in Contact Lens
Technologies Limited and New Focus Health Care Limited entitling him
to participate in an earn out payment by AVH, the terms of the
instrument which will constitute the loan note are set out in EXHIBIT
1 to this Agreement;
- AVH intends to adopt an unapproved share option scheme, the rules of
which are attached as EXHIBIT 2 to this Agreement;
- AVH intends to grant options over authorised but unissued ordinary
shares in the capital of AVH to those persons (other than Mr. Galley)
listed in SCHEDULE 1.
(B) AVH may grant options pursuant to the rules of the share option scheme
referred to in (A) above to additional persons after the date hereof.
(C) The rules of the said share option scheme provide that on the grant of
options pursuant to the said scheme the person accepting such a grant shall
enter into a deed of adherence in the form set out in EXHIBIT 3 to this
Agreement.
(D) Mr. Galley and TCC are entering into this Agreement to define their
relationship with one another regarding the future management of AVH, to
agree the means of calculating the principal amount of the loan note
referred to above and to set out the terms of options relating to holdings
of shares in AVH which will result from the exercise of options granted
pursuant to the share option scheme referred to above.
WHEREBY IT IS AGREED as follows:
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1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following words and expressions have the meaning set
opposite them:
"ACCOUNTING STANDARDS": statements of standard accounting practice
(including financial reporting standards)
issued pursuant to section 256, CA 85 by the
ASB;
"A DIRECTORS": from time to time those Directors appointed
by TCC;
"AFFILIATES": in relation to any body corporate, any
holding company or subsidiary undertaking of
such body corporate or any subsidiary
undertaking of a holding company of such body
corporate;
"AGREEMENT": this agreement including its recitals and the
schedules hereto;
"ARTICLES": the articles of association of AVH;
"ASB": Accounting Standards Board Limited
(registered number 2526824) or such other
body prescribed by the Secretary of State
from time to time pursuant to Section 256,
CA 85;
"AVH'S ACCOUNTANTS": KPMG of 8 Salisbury Square, London EC4Y 8BB;
"B DIRECTORS": from time to time those Directors appointed
by Mr. Galley;
"BALANCE SHEET DATE": 31 October;
"BOARD": the board of Directors of AVH;
"BUSINESS DAY": a week day (other than a Saturday) when banks
are open for business in London;
"CA85": Companies Act 1985;
"CALL OPTIONS": the call options over the Remaining Shares
granted by each of the Optionholders to TCC
pursuant to CLAUSE 2.1;
"COMPLETION": the performance by the parties of all their
obligations under CLAUSE 2.7 in respect of
the First Tranche and the Second Tranche;
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"CONFIDENTIAL INFORMATION": all information supplied by or on behalf of a
party in the negotiations leading to, this
Agreement and which relates to;
(a) the provisions of this Agreement;
(b) the negotiations relating to this
Agreement;
(c) TCC;
"COOPER VISION": Cooper Vision Inc, a wholly owned subsidiary
of TCC;
"CLT": Contact Lens Technologies Limited;
"DEED OF ADHERENCE": the deed of adherence set out in EXHIBIT 3 to
this Agreement which is referred to in
recital (C) above the effect of which is to
extend to those Managers who are not parties
to this Agreement, the rights and obligations
of the Managers which are described in this
Agreement;
"DIRECTORS": the directors of AVH from time to time;
"EOLN": the loan note for the Principal Amount
calculated in accordance with SCHEDULE 3 to
be issued by AVH to Mr. Galley which will be
constituted by the instrument, the terms of
which are set out in EXHIBIT 1, which loan
note will represent part of the consideration
payable by AVH in respect of the purchase of
Mr. Galley's holdings of shares in CLT and
NFHC;
"EXERCISE NOTICE": a notice served upon the Optionholders (or
any of them) by TCC exercising a Call Option
and/or a notice served upon TCC by any of the
Optionholders exercising a Put Option
(whether in respect of the First Tranche or
the Second Tranche, as the case may be);
"FINANCIAL YEAR": each accounting reference period of AVH and
the Subsidiaries which will end on 31 October
in each year subject to any longer or shorter
period determined by the Board;
"FIRST CALL OPTION PERIOD" the period commencing on 1 May 2001 and
terminating on 31 October 2001;
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"FIRST PUT OPTION PERIOD": the period commencing on 1 December 2000 and
terminating on 30 April 2001;
"FIRST OPTION PRICE": the price per Remaining Share comprised in
the First Tranche calculated pursuant to
SCHEDULE 3;
"FIRST TRANCHE": half of the total number of Remaining Shares
held by the Optionholders;
"GROUP": AVH and its subsidiaries;
"LEVEL 1/LEVEL 2 EMPLOYEES": those employees of the Group who hold senior
positions;
"MANAGERS": Mr. Galley and the Optionholders;
"MANAGERS' ACCOUNTANTS": any accountants appointed by Mr. Galley to
act as such from time to time;
"MANAGERS' SOLICITORS": Travers Smith Braithwaite of 10 Snow Hill,
London EC1A 2AL;
"NFHC": New Focus Health Care Limited;
"OPTION ACCOUNTS": the consolidated accounts of the Group
referred to in CLAUSE 3, prepared in
accordance with SCHEDULE 2;
"OPTIONHOLDERS": those persons who, as at today's date, hold
options to subscribe for shares in the
capital of AVH pursuant to the Scheme and
whose names are set out in SCHEDULE 1 and
such other persons who from time to time
participate in the Scheme;
"OPTION PRICES": the First Option Price and the Second Option
Price;
"PRINCIPAL AMOUNT": the principal amount of the EOLN calculated
pursuant to SCHEDULE 3;
"PROCEEDINGS": any proceedings, suit or action arising out
of or in connection with this Agreement;
"PUT OPTIONS": the put options over the Remaining Shares
granted by TCC to each of the Optionholders
pursuant to CLAUSE 2.1;
"REMAINING SHARES": up to 4,500 ordinary shares of 10p each in
the share capital of AVH which result from
the exercise of options granted under the
terms of the Scheme;
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"SCHEME": the unapproved share option scheme adopted by
AVH, the rules of which are attached as
EXHIBIT 2 to this Agreement;
"SECOND CALL OPTION PERIOD": the period commencing on 1 May 2002 and
terminating on 31 October 2002;
"SECOND PUT OPTION PERIOD": the period commencing on 1 December 2001 and
terminating on 30 April 2002;
"SECOND OPTION PRICE": the price per Remaining Share comprised in
the Second Tranche calculated pursuant to
SCHEDULE 3;
"SECOND TRANCHE": half of the total number of Remaining Shares
held by the Optionholders;
"SUBSIDIARIES": those companies which are subsidiaries of AVH
following completion of the Purchase
Agreements as the same are defined in the
Umbrella Agreement;
"UMBRELLA AGREEMENT": the agreement of the date hereof made between
Mr. Galley, AVH and TCC relating to the sale
and purchase of shares in AVC and other
companies.
1.2 The table of contents and headings in this Agreement are inserted for
convenience only and shall not affect its construction.
1.3 Unless the context otherwise requires words denoting the singular shall
include the plural and vice versa, references to any gender shall include
all other genders and references to persons shall include bodies corporate,
unincorporated associations and partnerships in each case whether or not
having a separate legal personality. References to the word "include" or
"including" are to be construed without limitation.
1.4 References to recitals, schedules and clauses are to recitals and schedules
to and clauses of this Agreement unless otherwise specified and references
within a schedule to paragraphs are to paragraphs of that schedule unless
otherwise specified.
1.5 References in this Agreement to any statute, statutory provision or EC
Directive include a reference to that statute, statutory provision or EC
Directive as amended, extended, consolidated or replaced from time to time
(whether before or after the date of this Agreement) and include any order,
regulation, instrument or other subordinate legislation made under the
relevant statute, statutory provision or EC Directive.
1.6 Words and expressions defined in the Umbrella Agreement shall, to the
extent not inconsistent, bear the same meanings in this Agreement.
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1.7 References to any English legal term for any action, remedy, method of
judicial proceeding, legal document, legal status, court, official or any
legal concept or thing shall in respect of any jurisdiction other than
England be deemed to include that which most approximates in that
jurisdiction to the English legal term.
1.8 Any reference to "writing" or "written" includes faxes and any
non-transitory form of visible reproduction of words.
1.9 It is intended that the rights and obligations of Managers which are
described in this Agreement shall apply to those Managers who are not
parties to this Agreement by their entering into a Deed of Adherence with
the parties to this Agreement as envisaged in CLAUSE 19.
1.10 References to times of the day are to London time and references to a day
are to a period of 24 hours running from midnight to midnight.
2. GRANT OF OPTIONS
2.1 TCC grants to each of the Optionholders an option exerciseable in respect
of the First Tranche during the First Put Option Period and in respect of
the Second Tranche during the Second Put Option Period to require TCC to
purchase the Remaining Shares ("Put Options") and each of the Optionholders
grants to TCC an option exerciseable in respect of the First Tranche during
the First Call Option Period and in respect of the Second Tranche during
the Second Call Option Period to require the Optionholders to sell to TCC
the Remaining Shares respectively held by them ("Call Options"), such
Options to be exercised in respect of the First Tranche at the First Option
Price and in respect of the Second Tranche at the Second Option Price.
2.2 The Options shall only be exerciseable as regards the First Tranche and the
Second Tranche in respect of all of the holdings of shares of the
Optionholders in the respective tranches and shall not be capable of being
exercised in respect of part of those holdings.
2.3 The completion of the exercise of either a Put Option or a Call Option in
respect of the First Tranche or the Second Tranche (as the case may be)
shall determine all rights in connection with the other in respect of that
Tranche.
2.4 The Put Options shall be exerciseable by the relevant Optionholders serving
upon TCC an Exercise Notice which shall thereupon become binding upon TCC
in respect of that Optionholders' Remaining Shares comprised in the First
Tranche or the Second Tranche (as the case may be).
2.5 The Call Options shall be exerciseable by TCC serving upon the
Optionholders or any of them an Exercise Notice which shall thereupon
become binding upon the Optionholder concerned in respect of that
Optionholders' Remaining Shares comprised in the First Tranche or the
Second Tranche (as the case may be).
2.6 An Exercise Notice when served (whether upon TCC or any of the
Optionholders) shall be irrevocable.
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2.7 Completion shall be held within 3 Business Days of the end of the relevant
period at the registered office of AVH. At Completion the Optionholders in
receipt of an Exercise Notice in respect of a Call Option and the Managers
who have served an Exercise Notice in respect of a Put Option shall deliver
to TCC definitive share certificates for the Remaining Shares the subject
of the Call Option or the Put Option (as the case may be) together with
duly executed transfers of shares in favour of TCC (or as it may direct)
and TCC shall pay to the Managers' Solicitors by telegraphic transfer the
aggregate of the consideration (calculated at the First Option Price or the
Second Option Price, as the case may be) payable in respect of such of
those Remaining Shares comprised in the First Tranche or the Second Tranche
(as the case may be) as have been the subject of an Exercise Notice. The
receipt by the Managers' Solicitors shall be binding upon each of the
Optionholders and TCC shall not be concerned with the distribution of such
consideration amongst the Optionholders (or any of them).
2.8 If any Optionholder shall fail to deliver duly executed transfers of the
Remaining Shares the subject of an Exercise Notice at Completion (whether
in respect of the First Tranche or the Second Tranche) and certificates of
title thereto such Optionholder hereby irrevocably authorises and appoints
TCC (acting by any director of TCC or any person duly authorised by the
directors of TCC) as his attorney to execute on his behalf any such
transfer of Remaining Shares and any indemnity for any documents of title
not so delivered.
3. OPTION ACCOUNTS
3.1 Preparation of Option Accounts
3.1.1 Forthwith after approval by AVH of its statutory consolidated
accounts for the Balance Sheet Date in each of the years ending 31
October 1998, 1999 and 2000, TCC shall procure that Option Accounts
are prepared for the Group for the relevant year. TCC shall procure
that the Option Accounts are submitted to the Managers for review
within 60 days after the end of the financial year. TCC may involve
AVH's Accountants in the preparation of the Option Accounts and the
Managers may require the Managers' Accountants to review the same.
TCC shall pay the charges of AVH's Accountants and the Managers shall
pay the charges of the Managers' Accountants.
3.1.2 If TCC shall fail to procure the preparation of Option Accounts in
accordance with CLAUSE 3.1.1 the Managers may procure the same at
TCC's expense.
3.1.3 The Option Accounts shall comprise the statutory consolidated
accounts of AVH for the financial years ending on the Balance Sheet
Date in each of 1998, 1999 and 2000 adjusted in accordance with the
provisions of SCHEDULE 2.
3.1.4 Unless within 21 days (or such longer period or shall be agreed
between Mr. Galley on behalf of the Managers and TCC) after receipt
of the version of the Option Accounts pursuant to CLAUSE 3.1.1 Mr
Galley on behalf of the Managers notifies TCC in writing of any
disagreement or
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difference of opinion relating to the Option Accounts, the parties
shall be deemed to have accepted such accounts as accurate.
3.1.5 If within the period of 21 days referred to in CLAUSE 3.1.4 or such
longer period as shall have been agreed Mr Galley on behalf of the
Managers notifies TCC of any disagreement or difference of opinion
relating to the Option Accounts ("Notice of Disagreement") and if
they are able to resolve such disagreement or difference of opinion
within 21 days of the Notice of Disagreement (or such longer period
as shall be agreed between Mr. Galley on behalf of the Managers and
TCC), the parties shall be deemed to have accepted the Option
Accounts as accurate.
3.1.6 If TCC and Mr Galley on behalf of the Managers is unable to reach
agreement within 21 days of the Notice of Disagreement or such longer
period as shall have been agreed, the matter in dispute shall be
referred to the decision of an independent chartered accountant (the
"Independent Accountant") to be appointed (in default of a nomination
by agreement between TCC and Mr Galley on behalf of the Managers) by
the President for the time being of the Institute of Chartered
Accountants in England and Wales.
3.1.7 The Independent Accountant shall act as an expert and not as
arbitrator, the Arbitration Acts 1950 and 1979 shall not apply and
his decision on the matter in dispute shall (in the absence of
manifest error) be final and binding on TCC and the Managers. The
costs of the Independent Accountant shall be apportioned between TCC
and the Managers as the Independent Accountant shall decide but each
party shall be responsible for its own costs for presenting its case
to the Independent Accountants.
3.1.8 TCC shall and shall procure that AVH's Accountants (if they have been
involved) shall give the Managers and the Managers' Accountants
unrestricted access to all working papers (with the right to take
copies) during the planning, execution and finalisation of the Option
Accounts and TCC agrees that the Managers' Accountants shall be at
liberty to disclose to the Managers any information and copies of any
documents which they receive by virtue of this clause.
4. PRINCIPAL AMOUNT AND OPTION PRICES
4.1 Within 3 Business Days of the agreement or determination of the Option
Accounts for the financial year ending on the Balance Sheet Date in 2000
TCC shall notify the Managers of the Principal Amount and the Option
Prices. Unless within 7 Business Days after receipt of such notification Mr
Galley on behalf of the Managers notifies TCC in writing of any
disagreement or difference of opinion relating to the Principal Amount and
the Option Prices the parties shall be deemed to have accepted them.
4.2 If within the period of 7 Business Days referred to in CLAUSE 4.1 the
Managers notify TCC of any disagreement or difference of opinion relating
to the Principal Amount and the Option Prices ("Notice of Price
Disagreement") and if TCC and Mr Galley on behalf of the Managers are able
to resolve such disagreement or difference of
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opinion within 7 Business Days of the Notice of Price Disagreement, the
parties shall be deemed to have accepted the Principal Amount and the
Option Prices.
4.3 If TCC and Mr Galley on behalf of the Managers are unable to reach
agreement within 7 Business Days of the Notice of Price Disagreement, the
matter in dispute shall be referred to the decision of an independent
chartered accountant to be appointed in the same manner and upon the same
terms as the Independent Accountant referred to in CLAUSES 3.1.6 and 3.1.7.
4.4 On or prior to the expiry of the period of seven Business Days from the
date of the determination of the Principal Amount of the EOLN and the
Option Prices AVH will enter into the instrument constituting the EOLN and
issue the EOLN for the Principal Amount on the basis that the payment date
for the Principal Amount pursuant to the terms of the EOLN is such date as
is 6 months and 2 days after the date of issue of the EOLN.
5. DECISIONS BY THE BOARD
5.1 Subject as provided in CLAUSE 5.2 below and save as required by law, all
decisions concerning AVH and any Subsidiary shall be taken by the Board. A
simple majority of the Directors, which majority must include at least one
A Director and one B Director, shall be required in respect of any decision
by the Board to undertake any of the following:
5.1.1 any decision to issue, sell, pledge, dispose of or create any
encumbrance over any of the shares in AVH or any of the Subsidiaries;
5.1.2 any split, combination or reclassification of the shares of any of
AVH or the Subsidiaries;
5.1.3 any declaration or payment of any dividend or distribution by AVH;
5.1.4 the redemption, purchase or other acquisition by AVH or any of the
Subsidiaries of any of their respective shares;
5.1.5 the transfer by any Subsidiary of any shares, assets or liabilities
of any Subsidiary to any other Subsidiary except that this shall not
prohibit the conduct of business between Subsidiaries pursuant to
agreements currently in force at the date hereof;
5.1.6 the sale, pledge, disposition or creation of any encumbrance over any
material asset of AVH or any of the Subsidiaries;
5.1.7 any amendment or proposal to amend the memorandum or articles of
association of AVH or any of the Subsidiaries;
5.1.8 the adoption by AVH or any of the Subsidiaries of a plan of
liquidation or the passing of any resolutions providing for the
liquidation, dissolution, merger, consolidation or other
reorganisation of AVH or the Subsidiaries;
5.1.9 the acquisition by AVH or any of the Subsidiaries of any corporation,
partnership or other business organisation or division thereof or any
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material investment by AVH or any of the Subsidiaries in any other
individual or entity;
5.1.10 the release or relinquishment by AVH or any of the Subsidiaries of
any material contractual rights;
5.1.11 engaging in any activities or entering into any agreements not
related to the contact lens business; and
5.1.12 the offer of employment to, or dismissal of, a Level 1/Level 2
employee by AVH or any of the Subsidiaries save for the prospective
offers to be made pursuant to the business plan in existence at the
date hereof.
EXCEPT THAT the consent of one B Director shall not be required for the
payment to AVH of dividends from any of the Subsidiaries nor the payment of
dividends or interest by AVH to TCC provided that any such payment by AVH
has been made pursuant to professional written advice received by TCC
and/or AVH and a copy of such advice has been previously submitted to Mr.
Galley and provided that the effect of any such payment by AVH shall be
excluded for the purpose of preparing the Option Accounts.
5.2 In the event that either the annual sales or the net income of AVH and the
Subsidiaries, calculated in accordance with the provisions of SCHEDULE 2
below, falls below 70% of the targets set out in SCHEDULE 4, then TCC may
require the B Directors to resign as Directors but such persons as resign
as B Directors shall retain the right to attend and be heard at board
meetings as observers but not vote (without prejudice to any contracts of
employment they may have) and TCC may appoint further Directors with the
right to vote in their place.
6. DIRECTORS
6.1 The maximum number of Directors holding office at any time shall be five
unless otherwise agreed in writing by TCC and Mr Galley.
6.2 TCC shall be entitled to appoint three Directors and at any time to require
the removal or substitution of any Director so appointed. The Directors so
appointed shall be designated as A Directors.
6.3 Subject to CLAUSE 6.4 below, Mr. Galley shall be entitled for a period of
three years from the date hereof to appoint two Directors and at any time
to require the removal or substitution of any Director so appointed. The
Directors so appointed by Mr. Galley shall be designated as B Directors.
6.4 Mr. Galley may not exercise his right to appoint any B Director without
obtaining the prior written approval of TCC as regards the identity of the
Director proposed to be appointed.
6.5 By execution of this Agreement TCC hereby designates Messrs Thomas Bender,
Gregory Fryling and, subject to a further notice being given to Mr. Galley,
Guy Billington as A Directors.
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6.6 By execution of this Agreement Mr. Galley hereby appoints himself and Mr.
Barrie Bevis as B Directors.
6.7 If TCC or Mr. Galley shall, pursuant to the Articles of Association of AVH,
determine the appointment of any Director, TCC or Mr. Galley (as the case
may be) shall indemnify AVH against any claim which may be made by such a
Director against AVH directly or indirectly arising from such
determination.
7. TRANSFERS OF SHARES
7.1 Save as is mentioned in CLAUSE 7.2 below, neither TCC nor any of the
Managers shall create or permit to subsist any pledge, lien or charge over,
or grant any option or other rights or dispose of any interest (whether
legal or equitable) in, any or all of the shares in the capital of AVH from
time to time held by them respectively and any person in whose favour any
such pledge, lien or charge is created or permitted to subsist or such
option or rights are granted or such interest is disposed of shall be
subject to and bound by the same limitations and provisions as embodied in
this Agreement.
7.2 CLAUSE 7.1 above shall not apply to:
7.2.1 the charge over shares in the capital of AVH entered into on the date
hereof by TCC in favour of Mr Galley as trustee for the Noteholders
(as the same are therein defined);
7.2.2 any transfer of shares in the capital of AVH from TCC to any
Affiliates of The Cooper Companies, Inc.
PROVIDED THAT in the case of 7.2.2 the transferee previously agrees by deed
to be bound by the provisions of this agreement
8. ASSIGNMENT
8.1 No party may assign the benefit of this Agreement whether absolutely or by
way of security except in the case of an absolute assignment of all or part
by TCC to an Affiliate of TCC and provided and so long as it remains an
Affiliate (failing which the benefit of this Agreement shall no longer be
available to such assignee nor to any assignor) save that TCC may assign
such benefit absolutely or by way of security to a person other than an
Affiliate of AVH with the prior consent in writing of the Vendor such
consent not to be unreasonably withheld or delayed and any purported
assignment in contravention of this clause shall be ineffective.
8.2 Subject to CLAUSE 8.1, this Agreement shall be binding upon and ensure for
the benefit of the personal representatives and assigns and successors in
title of each of the parties.
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9. WAIVER, VARIATION AND RELEASE
9.1 No omission to exercise or delay in exercising on the part of any party to
this Agreement any right, power or remedy provided by law or under this
Agreement shall constitute a waiver of such right, power or remedy or any
other right, power or remedy or impair such right, power or remedy. No
single or partial exercise of any such right, power or remedy shall
preclude or impair any other or further exercise thereof or the exercise of
any other right, power or remedy provided by law or under this Agreement.
9.2 Any waiver of any right, power or remedy under this Agreement must be in
writing and may be given subject to any conditions thought fit by the
grantor. Unless otherwise expressly stated any waiver shall be effective
only in the instance and only for the purpose for which it is given.
9.3 No variation to this Agreement shall be of any effect unless it is agreed
in writing and signed by or on behalf of each party.
10. COSTS AND EXPENSE
Save as otherwise stated in this Agreement, each party shall pay its own
costs and expenses in relation to the negotiation, preparation, execution
and carrying into effect of this Agreement and other agreements forming
part of the transaction.
11. NOTICES
11.1 Any communication to be given in connection with the matters contemplated
by this Agreement shall except where expressly provided otherwise be in
writing and shall either be delivered by hand or sent by first class
pre-paid post or sent by air mail. Delivery by courier shall be regarded as
delivery by hand.
11.2 Such communication shall be sent to the address of the relevant party
referred to in this Agreement or to such other address as may previously
have been communicated to the other parties in accordance with this clause.
Each communication shall be marked for the attention of the relevant
person.
11.3 A communication shall be deemed to have been served:-
11.3.1 if delivered by hand at the address referred to in CLAUSE 11.2, at
the time of delivery;
11.3.2 if sent by first class pre-paid post to the address referred to in
CLAUSE 11.2, at the expiration of two clear days after the time of
posting; and
11.3.3 if sent by air mail to the address referred to in CLAUSE 11.2, at
the expiration of five clear days after posting.
If a communication would otherwise be deemed to have been delivered outside
of normal business hours (being 9:30 a.m. to 5:30 p.m. on a Business Day)
in the time zone of the territory of the recipient under the preceding
provisions of this clause,
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it shall be deemed to have been delivered at the opening of business on the
next Business Day.
11.4 In proving service of the communication, it shall be sufficient to show
that delivery by hand was made or that the envelope containing the
communication was properly addressed and posted as a first class pre-paid
letter or air mail letter.
11.5 A party may notify the other parties to this Agreement of a change to its
name, relevant person, address or facsimile number for the purposes of
CLAUSE 11.1 PROVIDED THAT such notification shall only be effective on:-
11.5.1 the date specified in the notification as the date on which the
change is to take place; or
11.5.2 if no date is specified or the date specified is less than five
clear Business Days after the date on which notice is deemed to have
been served, the date falling five clear Business Days after notice
of any such change is deemed to have been given.
12. COUNTERPARTS
12.1 This Agreement may be executed in any number of counterparts and by the
parties on different counterparts, but shall not be effective until each
party has executed at least one counterpart.
12.2 Each counterpart shall constitute an original of this Agreement but all the
counterparts shall together constitute one and the same Agreement.
13. LANGUAGE
13.1 This Agreement is drawn up in the English language and if this Agreement is
translated into any language other than English, the English language text
shall prevail.
13.2 Each notice, instrument, certificate or other communication to be given by
one party to another hereunder or in connection with this Agreement shall
be in the English language (being the language of negotiation of this
Agreement) and in the event that such notice, instrument, certificate or
other communication or this Agreement is translated into any other
language, the English language text shall prevail.
14. INVALIDITY
Each of the provisions of this Agreement is severable. If any such
provision is or becomes illegal, invalid or unenforceable in any respect
under the law of any jurisdiction, the legality, validity or enforceability
in that jurisdiction of the remaining provisions of this Agreement of that
provision or any other provision of this Agreement, shall not in any way be
affected or impaired thereby.
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15. DURATION
This Agreement shall continue in full force and effect for so long as any
of the Managers owns any of the Remaining Shares and/or has options
outstanding over Shares under the terms of the Scheme and shall thereafter
forthwith terminate without prejudice to any claims accrued to that date.
16. THE TERMS OF THIS AGREEMENT TO PREVAIL
In the event of ambiguity or conflict arising between the terms of this
Agreement and those of AVH's memorandum of association or the Articles, the
terms of this Agreement shall prevail as between TCC and the Managers and
TCC and the Managers shall exercise such voting rights and other powers
available to them to give full force and effect to this Agreement
including, without limitation, to amend AVH's and any Subsidiary's
memorandum and articles of association to the extent reasonably necessary
to remove such ambiguity or conflict
17. THIS AGREEMENT NOT TO CONSTITUTE A PARTNERSHIP
The arrangements contained in this Agreement constitute a single joint
venture between TCC and the Managers. None of the provisions of this
Agreement shall be deemed to constitute a partnership between TCC and the
Managers or any other party at any time or, save as expressly provided
herein, to constitute any party the agent of the other or to have any
authority to bind the others in anyway except as expressly provided.
18. CONFIDENTIALITY
18.1 The Managers each hereby undertake with AVH and TCC that they shall both
during and after the term of this Agreement keep confidential, and not
reveal, report, publish, disclose or transfer or use for their own or any
other purposes Confidential Information except:-
18.1.1 in the circumstances set out in CLAUSE 18.2; or
18.1.2 to the extent otherwise expressly permitted by this Agreement; or
18.1.3 with the prior consent in writing of the party to whose affairs such
Confidential Information relates.
18.2 The circumstances referred to in CLAUSE 18 above are:-
18.2.1 where the Confidential Information, before it is furnished to, or
comes into the knowledge or possession of, the Manager, is in the
public domain; or
18.2.2 where the Confidential Information, after it is furnished to or
comes into the knowledge or possession of the Manager enters the
public domain otherwise than as a result of (a) a breach by the
Manager of its obligations in this CLAUSE 18 or (b) a breach by the
person who disclosed that
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Confidential Information of his confidentiality obligation and the
Manager is aware of such breach; or
18.2.3 if and to the extent the Manager makes disclosure of the
Confidential Information to any person:
(a) in compliance with any requirement of law; or
(b) in response to a requirement of the Stock Exchange or the Panel
on Take-overs and Mergers or any other applicable competent
authority to which the Manager is subject where such
requirement has the force of law; or
(c) in order to obtain tax or other clearances or consents from the
Inland Revenue or other relevant taxing or regulatory
authorities; or
18.2.4 to the consultants and professional advisers of the Vendor, in each
case on the basis that they will comply with the Manager's
obligations of confidence hereunder,
PROVIDED THAT any such information disclosable pursuant to CLAUSES 18.2.3
(a), (b) OR (c) shall be disclosed to the extent permitted by law and only
after consultation with the other party.
18.3 The restrictions contained in this clause shall continue to apply after the
Completion without limit in time.
19. DEED OF ADHERENCE
Each of the parties hereto undertakes to enter into a Deed of Adherence
with a Manager who is not a party to this Agreement in the circumstances
described in rule 3.5 of the Scheme.
20. GOVERNING LAW AND JURISDICTION
20.1 English law
This Agreement shall be governed by and construed in accordance with
English law.
20.2 Courts of England and Wales
The parties to this Agreement irrevocably agree that the courts of England
shall have the non-exclusive jurisdiction to settle any dispute which may
arise out of or in connection with this Agreement and that accordingly any
Proceedings may be brought in such courts.
20.3 Acceptance
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20.4 For the avoidance of doubt, the Managers, AVH and TCC expressly and
specifically agree and accept the terms of this clause and sign below in
recognition of this fact.
IN WITNESS of which all of the parties hereto have executed this document as a
deed and have delivered it upon dating it.
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SCHEDULE 1
(1) (2)
--- ---
Name and address Options over
---------------- Remaining Shares
----------------
Trevor Brooker 800
Barrie Bevis 400
Ivor Atkinson 100
Ron Poole 200
Ian McDermott 200
Giacomo Grassi 200
Fabrizio Lambertini 200
David Cooper 100
Glenn Carroll 100
Michael Kelly 100
Ian Bussey 100
Ray Hilliard 75
Keith Edwards 75
Gary Cheater 75
Brian Ford 75
Gary Breslin 75
Marguerite May 75
Keith Askew 50
Deborah Garrett 50
Malcolm Wade 50
Colin Vokes 50
Martin Lush 50
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SCHEDULE 2
Part 1 - Basis for preparation of Option Accounts
1. General Requirements
Subject to the provisions set out below, the Option Accounts shall be
prepared under the historical cost convention and in accordance with
accounting principles generally accepted in the United Kingdom (including
Accounting Standards) and, subject as aforesaid, on a basis consistent with
the balance sheets and profit and loss accounts of each company within the
Group (other than AVH) made up to 31 March 1997.
2. Balance Sheet
2.1 For the purpose of preparing the balance sheet in the Option Accounts the
following principles shall be applied:-
2.1.1 sums receivable in respect of debtors shall not be included at sums
higher than the amounts collectable, making appropriate provision for
doubtful debts;
2.1.2 stocks and work-in-progress shall be valued at the lower of cost and
net realisable value;
2.1.3 liabilities shall include accruals at the close of business on the
date of the Option Accounts;
2.1.4 immovable property and other fixed assets shall be included at their
net book value as at the less depreciation at rates calculated to
write off the cost of the assets over the following periods:
(a) plant and machinery 3-7 years;
(b) fixtures and fittings 3-7 years;
(c) motor vehicles 4 years;
(d) short leasehold properties the term of the lease;
2.1.5 adequate provision shall be made for all taxation, including deferred
taxation.
3. Profit and loss account
Unless already taken into account, the following principles shall be
observed in drawing up the profit and loss account of the Group which is to
form part of the Option Accounts:-
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3.1 there shall be excluded any profits, gains or losses arising from any
disposal of any immovable property or from any revaluation of
immovable property or surpluses or deficits arising on currency
transactions, whether or not such profits, gains, losses, surpluses or
deficits are treated in the said accounts as items of an extraordinary
or exceptional nature;
3.2 depreciation shall be deducted on the basis and by reference to the
rates mentioned in PARAGRAPH 2.1.4 above;
3.3 any taxation on profits and any subvention or other payment to any
other company in lieu of payment of any such tax or in consideration
of a surrender of group relief by the other company shall not be
deducted; and
3.4 the profits or losses shall be computed before paying any dividends by
AVH or making appropriations of profit or allocations to or from
reserves and before deducting any extraordinary item or making any
prior year adjustment, as defined in SSAP 6.
4. Exclude interest costs on monies borrowed by AVH to effect the acquisition
of the Subsidiaries and amortisation of good will.
5. Exclude:
- fees for technical services provided by TCC for the Group and which
are not agreed by Mr. Galley;
- the impact of any of the matters referred to in paragraph 4 Part 2
below and which have not been approved by the B Directors.
6. The price of goods sold by AVC to Cooper shall be as follows:-
T60 and BP55 products as per current agreement;
T43 (spherical) at cost and 10% of gross margin (i.e. 10% of
difference between TCC selling price and COGS e.g. if product sold at
$4.00 and COGS is $1.00 transfer price is $1.30);
Disposable toric transfer price is cost and 20% of gross margin (see
above explanation);
Hybrid lenses at a transfer price to be agreed between TCC and Mr.
Galley.
7. Interest on funds provided by TCC to the Group for loan or working capital
purposes shall be included and shall be deemed to accrue at 9% per annum up
to 'L'5,000,000 and at 10% per annum for funds in excess of that amount.
8. Changes in business activities in the form of the Group acquiring new
business from TCC or third parties etc. to be included or excluded on terms
to be agreed between TCC and Mr. Galley on behalf of the Managers.
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Part 2 - Adjusting Events
1. If the A Directors determine that AVH or any of the Subsidiaries shall
undertake any of the matters in CLAUSE 5.1 or in PARAGRAPH 4 below then:-
1.1 subject to PARAGRAPH 1.2 below, if the B Directors (on behalf of the
Managers) shall approve any such matters their effect shall be taken into
account in the preparation of the Option Accounts and the calculation of
the Principal Amount, the First Option Price and the Second Option Price;
but
1.2 if the B Directors (on behalf of the Managers) shall object to any such
matters or shall agree to such matters but only on the condition that the
effect of such matters be excluded from the Option Accounts their effect
shall be excluded from the Option Accounts and the calculation of the First
Option Price and the Second Option Price.
2. If the A Directors (on behalf of TCC) and the B Directors (on behalf of the
Managers) are unable to agree on the method by which the effect of any of
the matters in PARAGRAPH 4 below is to be taken into account or excluded
from the Option Accounts points in dispute shall be referred to the
decision of an independent chartered accountant (the "Independent
Accountant") to be appointed (in default of nomination by agreement between
the A Directors and the B Directors) by the President for the time being of
the Institute of Chartered Accountants in England and Wales.
3. The Independent Accountant shall act as an expert and not as an arbitrator,
the Arbitration Acts 1950 and 1979 shall not apply and his decision on the
matter in dispute shall (in the absence of manifest error) be final and
binding on TCC and the Managers. The costs of the Independent Accountant
shall be apportioned between TCC and the Managers as the Independent
Accountant shall decide but each party shall be responsible for its own
costs of presenting its case to the Independent Accountant.
4. The matters which may lead to an adjustment to the preparation of the
Option Accounts are those matters listed in CLAUSE 5.1 of the Agreement and
in addition are:-
4.1 AVH or any of the Subsidiaries incurring any lease obligations,
indebtedness for borrowed money or issuing any debt securities or assuming,
guaranteeing or endorsing the obligations of any other individual entity in
an amount that, individually or in the aggregate, exceeds 'L'100,000;
4.2 the taking of any action which is other than consistent with best practice
with respect to the grant of any severance or termination pay to employees
or with respect to any increase of benefits payable under any severance or
termination pay policies or agreements of the Subsidiaries in effect at the
date of this Agreement;
4.3 the adoption of or amendment to any bonus, profit sharing, compensation,
share option, pension, retirement, deferred compensation, employment or
other employee benefit plan, agreement, trust, fund or other arrangement
for the benefit
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or welfare of any employee of AVH or any of the Subsidiaries, or any
increase in any manner in the compensation or fringe benefits of any
employee or payment of any benefit to any employee not required by any
existing plan, arrangement or Agreement;
4.4 the making of any tax election or claim or settlement or compromise of any
material tax liability of AVH or any of the Subsidiaries;
4.5 the hiring of any Level 1/ Level 2 employees by AVH or any of the
Subsidiaries;
4.6 any purchase of equipment by AVH or any of the Subsidiaries in excess of
'L'75,000;
4.7 the making of any loans to any employees or officers of AVH or any of the
Subsidiaries;
4.8 entering into any royalty or original equipment manufacturers agreements by
AVH or any of the Subsidiaries that would have a significant impact on the
sales activities of AVH or the Subsidiaries or Cooper Vision;
4.9 the termination by any of the Subsidiaries of any existing contractual
obligations and relationships with customers and/or distributors;
4.10 any grant by AVH or any of the Subsidiaries of any original equipment
manufacturing sub-contract arrangements;
4.11 the giving of assistance by AVH or any of the Subsidiaries to third party
manufacturers and/or subcontract licensees;
4.12 the instigation of any legal action which is likely to result in AVH or any
of the Subsidiaries incurring expenses in excess of 'L'30,000.
PROVIDED THAT any of the matters listed above may be undertaken by
resolution of a simple majority of the Directors without the need for an A
Director or a B Director to vote in favour of the resolution where such
matters are provided for in the business plan provided by Mr. Galley at the
date hereof.
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SCHEDULE 3
1. Each of the First Option Price and the Second Option Price for each
Remaining Share shall be calculated by reference to the following:-
(A + B + C)
-----------
10,000
where
A = Ten per cent. of the pre-tax profits (or losses) of the Group as
shown by the Option Accounts for each of the financial years ending on
the Balance Sheet Date in each of 1998, 1999 and 2000 multiplied by a
factor of 2.07, 2.07 and 8.28 respectively. Net losses shall be
treated as a negative number and deducted from net profits for the
purpose of the calculation. In no circumstances can A itself be a
negative number.
B = 'L'5,000,000.
C = half of the post tax savings realised by CooperVision from a
manufacturing improvement introduced by the Group to CooperVision,
such savings being the saving accruing to CooperVision in the first
year of the use of such improvement.
PROVIDED ALWAYS THAT if the turnover for the Group falls below
'L'250,000,000, 'L'27,500,000, and 'L'30,250,000 in the years ending on 31
October in 1998, 1999 and 2000 respectively, the First Option Price and the
Second Option Price for each Remaining Share shall be the nominal value
(10p) of each such Share.
2. The Principal Amount of the EOLN shall be calculated by reference to the
following:-
(A + B + C) - Z
where
A and B = are as defined above.
Z = the aggregate amount calculated pursuant to paragraph 1 above to
acquire all the Remaining Shares.
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SCHEDULE 4
1. Targets for annual sales and profit before taxes of the Group.
YEAR ENDING 31 OCT 1998 1999 2000
Sales targets ('L'000) 27,098 34,015 42,213
Profit before taxes ('L'000) 5,559 6,487 8,713
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Signed by ANTONY DAVID GALLEY )
and delivered as a Deed in the )
presence of: )
Signed and delivered as a Deed )
by ASPECT VISION HOLDINGS LIMITED )
acting by:- )
Director
Director/Secretary
Signed and delivered as a Deed )
by THE COOPER COMPANIES, INC. )
acting by its duly authorised )
representative [ ] in )
accordance with the laws of the territory )
in which THE COOPER COMPANIES, INC )
is incorporated )
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