UNITED STATES
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
April 20, 1998
(Date of earliest event reported)
Commission file number: 0-20704
ACX TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Colorado 84-1208699
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
16000 Table Mountain Parkway, Golden, Colorado 80403
(Address of principal executive offices) (Zip Code)
(303) 271-7000
(Registrant's telephone number, including area code)
Item 2. Disposition of Assets
On April 20, 1998 ACX Technologies, Inc. (ACX) sold the plastics
division of Britton Group Ltd. (Britton) to CVC Capital Partners
Ltd., a European private equity provider. The sale price was
approximately 82.0 million pounds sterling, or $135.0 million,
which includes a $3.3 million interest-bearing note.
Located in the United Kingdom, the plastics division of Britton
was acquired by ACX on January 14, 1998, as part of the purchase
of Britton.
The sale price, less transaction costs, will be used to pay-down
the short-term borrowings incurred by ACX for the acquisition of
Britton.
Since the January 14, 1998 acquisition of Britton, ACX has
accounted for the plastics division as a discontinued operation
held for sale. Therefore, the disposition of the plastics
division will not have an impact on ACX's results or operations.
Item 7. Financial Statements & Exhibits
The sale agreement related to the plastics division sale is filed
as Exhibit 2.3.
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.
May 1, 1998 ACX Technologies, Inc.
By:/s/ Beth A. Parish
--------------------------------
Beth A. Parish
(Controller and Principal
Accounting Officer)
Exhibit 2.3
Dated 20 April 1998
BRITTON GROUP LIMITED
and
NMC GROUP LIMITED
and
BEALAW (461) LIMITED
and
ACX TECHNOLOGIES, INC.
AGREEMENT
relating to the sale and purchase
of the whole of the issued share capital of
BRITTON GROUP PLASTICS LIMITED
BRITTON SECURITY PACKAGING LIMITED
BRITTON PRECISION LIMITED
and
BRITTON GELPLAS LIMITED
Agreement for Purchase of Shares
This Agreement is made on 20 April 1998
Between:
(1) BRITTON GROUP LIMITED a company incorporated in England and
Wales under registered number 1816446 whose registered office is
at Mellier House, 26a Albermarle Street, London W1X 3FA and NMC
GROUP LIMITED a company incorporated in England and Wales under
registered number 159982 whose registered office is at 1 Castle
Lane, London, SW1E 6DN (the Vendors and each of them a Vendor);
(2) BEALAW (461) LIMITED a company incorporated in England and
Wales under registered number 3541144 whose registered office is
at 20 Furnival Street, London EC4A 1BN (the Purchaser); and
(3) ACX TECHNOLOGIES, INC. whose registered office is at 16000
Table Mountain, Parkway, Golden, Colorado, 80403 USA (the
Guarantor)
Whereas:
(1) ACX (UK) Limited a wholly owned subsidiary of the Guarantor
purchased the entire issued share capital of Britton Group
Limited
on the Acquisition Date following a public offer;
(2) The Vendors wish to sell and the Purchaser wishes to purchase
the Companies which make up the Plastics Division of Britton
Group
Limited;
(3) The Guarantor has agreed to guarantee the obligations of the
Vendors as set out in this Agreement.
It is agreed as follows:
1 Interpretation
In this Agreement, including its recitals and Schedules, the
headings shall not affect its interpretation and, unless the
context otherwise requires, the provisions in this Clause 1
apply:
1.1 Definitions
agreed terms means in relation to any document such document in
the terms agreed between the parties and signed by or on behalf
of
the Purchaser's Solicitors and the Vendors' Solicitors for the
purposes of identification;
Acquisition Date means 14 January 1998;
Actual Net Cash and Debt means the sum of the Group's bank debt,
bank overdrafts and finance lease debts minus the sum of the
Group's cash balances in each case at Completion established from
the balance sheet in the Completion Accounts;
Actual Net Intergroup Debt means intercompany debt owed by the
Group to the Retained Group minus intercompany debt owed by the
Retained Group to the Group at Completion in each case
established
from the balance sheet in the Completion Accounts;
Audited Accounts means the audited accounts of the Companies and
of each of the Subsidiaries for the financial period ended on the
Balance Sheet Date;
Balance Sheet Date means 31 December 1997;
Business Day means a day on which banks are open for business in
England (excluding Saturdays, Sundays and public holidays);
CHAPS means clearing houses automated payment systems;
Claim means a Warranty Claim and/or a claim under the Tax Deed;
Companies means the companies details of which are contained in
Part 3 of Schedule 1;
Completion means the completion of the sale and purchase of the
Shares pursuant to Clause 6;
Completion Consideration means the amount of cash payable at
Completion in accordance with Clause 3.1.2.
Consideration means the Consideration as described in Clause 3;
Disclosure Letter means the letter of even date with this
Agreement from Britton Group Limited to the Purchaser which is
referred to in Clause 7.1;
Encumbrance means any claim, charge, mortgage, security, lien,
option, equity, power of sale or hypothecation restriction, right
of first refusal, pre-emption right, third party right or
interest
or other encumbrance or security interest of any kind or
preferential arrangement (including, without limitation, a title
transfer or retention arrangement having similar effect);
Estimated Net Cash and Debt means 13,841,000 being the sum of the
Group's bank debt and bank overdrafts in each case established
from bank statements as at close of business on 17April 1998 and
finance lease debts owed as at 31 December 1997 by the Group
Companies minus the sum of the Group's cash balances as at the
close of business on 7April 1998;
Estimated Net Intergroup Debt means 33,604,000, being an estimate
of intercompany debt owed by the Retained Group to the Group
minus
an estimate of intercompany debt owed by the Group to the
Retained
Group in each case established from the latest available
management figures;
Excluded Lease means the lease of the Excluded Property
registered
at HM Land Registry under Title Number BM75177;
Excluded Property means Factory 15, Third Avenue, Bletchley
Industrial Estate, Bletchley, Buckinghamshire but excluding any
plant and machinery thereon owned by the Purchaser;
Group or Group Companies means the Companies and the Subsidiaries
and Group Company means any one of them;
Intellectual Property means patents, trade marks, service marks,
registered designs, applications for any of those rights, trade
and business names, unregistered trade marks and service marks,
copyrights, Know-how, rights in designs;
Know-How means all information not publicly known owned by a
Group
Company relating to:
(i) the manufacture or production of goods;
(ii) the selection, procurement, construction, installation or
use of raw materials, plant, machinery or other equipment or
processes;
(iii) the supply, storage, assembly or packing of raw
materials,
components or partly manufactured or finished goods;
(iv) quality control, testing or certification; or
(v) the rectification, repair or service of goods, plant,
machinery or other equipment;
Landlord means the person for the time being entitled to the
reversion of the Excluded Lease;
Loan Notes means the 51/4 per cent. unsecured loan notes due 2007
of the Purchaser constituted by a deed of the same date as this
Agreement;
Management Accounts means the management accounts for Britton
Polymon Limited, Britton Gelplas Limited, Britton Precision
Limited, Britton Packbourne Limited, Britton Security Packaging
Limited, Britton Decoflex Limited, Britton Polyian Limited,
Britton Taco Limited and Britton Group Plastics Limited for the
month ended January 1998 and the month ended February 1998;
Management Team means Colin Smith, Nigel Beaumont, Raymond
Peters,
William Bishop, Peter Whittaker and the Managing Director and
Financial Director of each Group Company;
Payment Account Details means, in relation to any payment to be
made under or pursuant to this Agreement, the name, account
number, sort code, account location and other details specified
by
the payee and necessary to effect payment (whether by cheque,
banker's draft, telegraphic or other electronic means of
transfer)
to the payee;
Properties means the freehold and leasehold properties brief
details of which are set out in Parts 1 and 2 of Schedule 3 and
Property means any one of them;
Purchaser's Group means the Purchaser and any undertaking which
is, on or at any time after the date of this Agreement, a
subsidiary or holding company of the Purchaser or a subsidiary of
a holding company of the Purchaser;
Purchaser's Solicitors means Clifford Chance of 200 Aldersgate
Street, London EC1A 4JJ;
Reporting Accountants means an independent firm of chartered
accountants agreed by the parties or, in default of agreement
within 14 days of receipt of the Appointment Notice (as defined
in
Clause 8.2.3), an independent firm of chartered accountants
nominated by the President for the time being of the Institute of
Chartered Accountants in England and Wales;
Representation Letter means the letter from the Management Team
to
the Vendors of even date herewith;
Retained Group means Britton Group Limited and each of its
subsidiary undertakings (other than the Group Companies)
following
Completion;
Shares means the whole of the issued share capital of the
Companies details of which are set out in Part 1A of Schedule 1;
Subsidiaries means the subsidiaries of the Companies details of
which are contained in Part 4 of Schedule 1;
Subsidiary Shares means the shares held by Sambrook (Britton)
Limited in Britton Packbourne Limited, Britton Taco Limited, Taco
Plastics Limited and Tacolin Limited;
Tax Deed means the tax deed in the agreed terms between the
Vendors and the Purchaser;
Taxation means all forms of taxation and statutory, impositions,
duties, contributions and levies chargeable directly or primarily
against or attributable directly or primarily to a Group Company
and all penalties, charges, costs and interest relating thereto;
Transfer means a deed of transfer in the agreed form set out in
Schedule 6;
Vendor Appointees means Jill Sisson, Jed Burnham, Gail
Constancio,
Beth Parish, Steven Selinske and Jeff Coors;
Vendor Group Company means Britton Group Limited or an
undertaking
which is, on or at any time after the date of this Agreement, a
subsidiary or holding company of Britton Group Limited or a
subsidiary of a holding company of Britton Group Limited;
Vendors' Solicitors means Linklaters & Paines of One Silk Street,
London EC2Y 8HQ;
Warranties means the warranties and representations set out in
Schedule 2 and Warranty means any one of them;
Warranty Claim means a claim by the Purchaser for breach of any
of
the Warranties;
1.2 Subordinate Legislation
Any reference to a statutory provision shall include any
subordinate legislation made from time to time under that
provision;
1.3 Modification etc. of Statutes
Any reference to a statutory provision shall include such
provision as from time to time modified or re-enacted or
consolidated whether before or after the date of this Agreement
so
far as such modification, re-enactment or consolidation applies
or
is capable of applying to any transactions entered into under
this
Agreement prior to Completion and (so far as liability thereunder
may exist or can arise) shall include also any past statutory
provision (as from time to time modified, re-enacted or
consolidated) which such provision has directly or indirectly
replaced;
1.4 Connected Persons
A person shall be deemed to be connected with another if that
person is connected with such other within the meaning of Section
839 of the Income and Corporation Taxes Act 1988;
1.5 Accounts
Any reference to accounts (apart from in relation to the
Completion Accounts) shall include the directors' and auditors'
reports, relevant balance sheets and profit and loss accounts and
related notes;
1.6 Companies Act 1985
The words holding company and subsidiary shall have the same
meanings in this Agreement as their respective definitions in the
Companies Act 1985;
1.7 Interpretation Act 1978
The Interpretation Act 1978 shall apply to this Agreement in the
same way as it applies to an enactment;
1.8 Schedules etc.
References to this Agreement shall include any Schedules to it
and
references to Clauses and Schedules are to Clauses of and
Schedules to this Agreement; and
1.9 Information
Any reference to books, records or other information means books,
records or other information in any form including paper,
electronically stored data, magnetic media, film and microfilm.
1.10 Liability
The liabilities and obligations of the Vendors under this
Agreement are joint and several save where provided otherwise.
2 Agreement to Sell the Shares
2.1 Sale of Shares
The Vendors shall sell or procure to be sold with full title
guarantee and the Purchaser shall purchase the Shares shown
against their respective names in Part 1A of Schedule 1 free from
all Encumbrances and together with all rights and advantages now
and hereafter attaching thereto.
2.2 Rights of Pre-emption
The Vendors waive or shall procure that there will be waived
before Completion by the parties entitled thereto any and all
rights of pre-emption and other restrictions on transfer over the
Shares conferred either by the Articles of Association or other
equivalent document of the Companies or in any other way.
3 Consideration
3.1 The Consideration for the purchase of the Shares will
be:
3.1.1 the issue by the Purchaser to NMC Group Limited of 2
million
(two million pounds Sterling) of Loan Notes as part consideration
for the Shares in Britton Security Packaging Limited;
3.1.2 79,935,000 minus the Estimated Net Intergroup Debt and
the
Estimated Net Cash and Debt (in aggregate the Completion
Consideration) subject to adjustment in accordance with Clause
8.3
and Part 1B of Schedule 1.
3.2 On Completion the Purchaser shall procure the payment
to Britton Group Limited (for itself and on behalf of the
relevant
members of the Retained Group) of an amount equal to the
Estimated
Net Intergroup Debt.
3.3 The Estimated Net Intergroup Debt, the Estimated Net
Cash and Debt and the Completion Consideration shall be allocated
between the Vendors and in respect of the Shares as shown in Part
1B of Schedule 1.
3.4 Any amount paid by the Vendors to the Purchaser or by
the Purchaser to the Vendors pursuant to this Agreement or the
Tax
Deed after Completion shall be deemed to be an adjustment to the
Consideration paid by the Purchaser for the Shares under the
terms
of this Agreement The amount of such adjustment shall be
allocated
between the Vendors and in respect of the Shares in the same
proportions as the allocation shown in the Total column in Part
1B
of Schedule 1 unless the amount paid results from an adjustment
under Clause 8.3 in which case the amount of the adjustment shall
be allocated as provided in Part 1B of Schedule 1.
4 Method of Payment
Wherever in this Agreement provision is made for the payment by
one party to another, such payment shall be effected by crediting
the account specified in the Payment Account Details of the party
entitled to the payment by way of CHAPS on or before the due date
for payment unless the payee by notice to the payer, not later
than three Business Days prior to the due date for payment,
elects
to be paid by banker's draft drawn on any international bank
reasonably acceptable to the payer and having an office in
London.
Payment of such sum shall be a good discharge to the payer of its
obligation to make such payment.
5 Timing of Completion
Completion shall take place immediately after signing of this
Agreement.
6 Completion
6.1 Place
Completion shall take place at the offices of the Vendors'
Solicitors.
6.2 Vendors' Obligations on Completion
On Completion Britton Group Limited shall deliver or procure to
be
delivered or (if the Purchaser agrees) make available to the
Purchaser:
6.2.1 duly executed transfers of the Shares and the
Subsidiary
Shares in favour of the Purchaser or as it may direct accompanied
by the relative share certificates;
6.2.2 the written resignations of each of the Vendor
Appointees
from his office as a director or secretary of the relevant Group
Company to take effect on the date of Completion with
acknowledgments signed by each of them in a form reasonably
satisfactory to the Purchaser to the effect that he has no claim
against any Group Company for compensation for loss of office
(whether contractual, statutory or otherwise), redundancy or
otherwise;
6.2.3 the written resignations of the auditors of each Group
Company to take effect on the date of Completion, with
acknowledgments signed by each of them in a form reasonably
satisfactory to the Purchaser to the effect that they have no
claim against any Group Company and containing the statement
referred to in Section 394 of the Companies Act 1985 to the
effect
that there are no circumstances connected with their resignation
which they consider should be brought to the notice of the
members
or creditors of any Group Company;
6.2.4 the certificates of incorporation, corporate seals (if
any),
cheque books and statutory books of each Group Company (duly
written up-to-date) and the share certificates in respect of all
issued shares in the capital of each of the Subsidiaries;
6.2.5 evidence of the authority of each person executing a
document referred to in Clause 6 on Vendor's behalf, a copy of
the
power of attorney conferring the authority or a copy, certified
to
be a true copy by a director or the secretary of the Vendor, of a
resolution of the Vendor's board of directors or an authorised
committee of that board conferring the authority;
6.2.6 the waivers, consents or other documents necessary to
give
the Purchaser or its nominee(s) full legal and beneficial
ownership of the Shares and the Subsidiary Shares in each case in
the agreed form;
6.2.7 the title deeds to the Properties which are in the
Vendors'
possession being the title deeds listed in the schedules produced
by the Vendors' Solicitors and approved by the Purchaser's
Solicitors;
6.2.8 letter(s) from the receiver of Thurgar Bardex plc,
Barclays
Bank plc and Bank of Scotland and NatWest evidencing the release
and discharge of each guarantee and charge of each Group Company
to Thurgar Bardex plc, Barclays Bank plc and Bank of Scotland and
NatWest respectively;
6.2.9 all material financial and accounting books and records
of
each Group Company;
6.2.10 the Tax Deed executed by the Vendors;
6.2.11 a copy of each bank mandate of each Group Company and
copies of statements of each bank account of each Group Company
made up to a date not earlier than one Business Day before the
date of Completion;
6.2.12 Powers of attorney in favour of the Purchaser in
respect of the Shares enabling the Purchaser to attend and vote
at
general meetings of the relevant Companies.
6.3 Board Resolutions of the Companies
On Completion Britton Group Limited shall procure the passing of
Board Resolutions of each Company inter alia:
6.3.1 revoking all existing authorities to bankers in respect
of
the operation of its bank accounts and giving authority in favour
of such persons as the Purchaser may nominate to operate such
accounts;
6.3.2 accepting the resignations referred to in Clause 6.2.2
and
appointing such persons (within the maximum number permitted by
the Articles of Association) as the Purchaser may nominate as
directors and secretary;
6.3.3 approving the registration of the share transfers
referred
to in Clause 6.2 subject only to their being duly stamped;
6.3.4 accepting the resignations referred to in Clause 6.2.3
and
appointing Ernst & Young as auditors of each Company; changing
its
registered office in accordance with instructions given by the
Purchaser;
6.3.5 changing the accounting reference date of each Company
to
the date of Completion
and shall hand to the Purchaser duly certified copies of such
Resolutions.
6.4 Board Resolutions of the Subsidiaries
Britton Group Limited shall ensure that, immediately after the
board meeting referred to in Clause 6.3, meetings of the board of
directors of any Subsidiaries notified at least two days prior
hereto by the Purchaser to the Vendor are held to deal with any
matter referred to in Clause 6.3 that the Purchaser may require.
6.5 Payment of Completion Consideration
Against compliance with the foregoing provisions the Purchaser
shall satisfy the Completion Consideration and shall pay to
Britton Group Limited (for itself and on behalf of the relevant
members of the Retained Group) an amount equal to the Estimated
Net Intergroup Debt in the manner specified in Clauses 3 and 4
and
issue the Loan Notes in accordance with Clause 3.1.1.
6.6 Post-Completion Pension and Employee Benefit Matters
6.6.1 At, or within 2 weeks of, Completion:
(i) Britton Group Limited shall execute and shall use its
reasonable endeavours to procure the trustees of the Britton
Group
plc Contracted-in Money Purchase Scheme (the CIMP Scheme)
execute;
and
(ii) the Purchaser shall procure that the relevant members of the
Purchaser's Group execute
a deed of novation and adherence in relation to the CIMP Scheme
in
the agreed form in order to substitute the relevant member of the
Purchaser's Group as the principal employer under the CIMP Scheme
with effect on and from Completion and to admit another member of
the Purchaser's Group as a participating employer under the CIMP
Scheme with effect on and from Completion.
6.6.2 At, or within 2 weeks of, Completion;
(i) Britton Group Limited shall execute and shall use its
reasonable endeavours to procure the trustees of the Britton
Group
Plc Death in Service Scheme (the DIS Scheme) execute; and
(ii) the Purchaser shall procure that the relevant members of the
Purchaser's Group execute
a deed of novation and adherence in relation to the DIS Scheme in
the agreed form in order to substitute the relevant member of the
Purchaser's Group as the principal employer under the DIS Scheme
with effect on and from Completion and to admit another member of
the Purchaser's Group as a participating employer under the DIS
Scheme with effect on and from Completion.
6.6.3 Britton Group Limited shall co-operate with the
Purchaser in
the preparation and submission following Completion of a joint
application under s.177 Taxes Act 1988 and within the time limits
imposed by that Act to substitute the relevant member of the
Purchaser's Group as principal employer under the Britton Group
plc profit related pay scheme 1997-1998 with effect on and from
Completion.
6.6.4 Britton Group Limited hereby covenants with the
Purchaser
(the Purchaser acting for itself and as trustee for the
Purchaser's Group) that Britton Group Limited will be solely
responsible for the payment of any amounts which may arise on or
after Completion under any agreement entered into by Britton
Group
Limited with any of Chadburn Trustee Services Limited, Cranfield
Pension Trustees Limited and Weston Cummins Limited (together the
Agreements). Britton Group Limited hereby confirms to the
Purchaser (the Purchaser acting for itself and as trustee for the
Purchaser's Group) that neither the Purchaser nor any member of
the Purchaser's Group shall have any liability whatsoever under
the Agreements except that the liability of the Purchaser for the
cost of services provided to the Group Companies prior to
Completion shall not change. Notwithstanding the foregoing, the
Purchaser hereby confirms to Britton Group Limited that Britton
Group Limited shall not be liable for any costs incurred by any
of
Chadburn Trustee Services Limited, Cranfield Pension Trustee
Services Limited and Weston Cummins Limited in relation to any
services rendered by any of Chadburn Trustee Services Limited,
Cranfield Pension Trustees Limited and Weston Cummins Limited to
the Purchaser or to any member of the Purchaser's Group on or
after Completion where such services have been rendered with the
actual knowledge of the Purchaser or of any member of the
Purchaser's Group. The Purchaser hereby agrees to use all
reasonable endeavours to assist Britton Group Limited in
terminating (with the minimum cost to Britton Group Limited) any
Agreements after Completion if Britton Group Limited so requests.
6.7 Post-Completion Insurance Matters
Following Completion:
6.7.1 the Purchaser shall not make any changes which have
retroactive effect to a date prior to Completion to any insurance
policy of a Group Company in force immediately prior to
Completion
where the effect of that change is to reduce the level of cover
available to Britton Group Limited and/or the Retained Group in
respect of the Group Companies;
6.7.2 the Purchaser shall notify Britton Group Limited of any
claims made under the insurance policies of the Group Companies
in
force immediately prior to Completion which may have the effect
of
reducing the aggregate insurance cover available to Britton Group
Limited and/or the Retained Group in respect of the Group
Companies.
6.8 Charges
The Vendors shall assist the Purchaser in complying with any
formalities necessary to obtain formal release of the charges
referred to in Clause 6.2.8.
7 Warranties
7.1 Incorporation of Schedule 2
7.1.1 The Vendors warrant to the Purchaser in the terms set
out in
Schedule 2 subject only to any matter which is fairly disclosed
in
or pursuant to the Disclosure Letter or expressly provided for
under the terms of this Agreement.
7.1.2 Where any Warranty is expressed to be given so far as
the
Vendors are aware, it is intended to be limited to the actual
knowledge of the Vendor Appointees. For these purposes the actual
knowledge of the Vendor Appointees has been obtained
(i) by the Vendor Appointees having since the Acquisition Date
familiarised themselves with the business of the Group and made
reasonable inquiries into its affairs with a view to selling or
retaining the Group;
(ii) by the Vendor Appointees having made reasonable inquiries of
Robin Williams and Simon Beart since the Acquisition Date;
(iii) by the Vendor Appointees having participated in board
meetings of the Group Companies since the Acquisition Date; and
(iv) by the Vendor Appointees having reviewed the management
reports sent to them since the Acquisition Date.
7.1.3 Save for the matters which are fairly disclosed in or
pursuant to the Disclosure Letter, no knowledge of the Purchaser
or the Management Team relating to a Group Company (actual,
constructive or imputed) prevents or limits a claim made by the
Purchaser for breach of Warranties under paragraphs 1.4, 1.5, 7,
8.1, 4.3, 9, 11, 12.1 and 12.2 and the Vendors may not invoke the
Purchaser's or Management Team's knowledge (actual, constructive
or imputed) of a fact or circumstance (save for matters fairly
disclosed in or pursuant to the Disclosure Letter) which might
make such Warranties untrue, inaccurate, incomplete or misleading
as a defence to a Warranty Claim in respect of such Warranties.
7.1.4 Except in cases of fraud or wilful non-disclosure, or
wilful
misrepresentation the Vendors waive and may not enforce a right
which they (or either of them) may have in respect of a
misrepresentation, inaccuracy or omission in or from information
or advice supplied by a Group Company or a director, officer or
employee of a Group Company for the purpose of assisting the
Vendors to make a representation, give a Warranty or prepare the
Disclosure Letter.
7.1.5 Each Warranty is to be construed independently and
(except
where this Agreement provides otherwise) is not limited by a
provision of this Agreement or another Warranty.
7.2 Limitation of Liability
Notwithstanding the provisions of Clause 7.1, the Vendors (or
either of them) shall not be liable:
7.2.1 Time Limits
In respect of any Claim unless notice of such Claim is given in
writing by the Purchaser to Britton Group Limited on behalf of
the
Vendors setting out full details of the specific matter in
respect
of which the Claim is made including (if practicable) an estimate
of the amount of such Claim within 18months following Completion
in respect of a Warranty Claim (other than a Warranty Claim under
paragraph 7 of Schedule 2) and six years and one month from the
end of the current accounting period in relation to a Claim under
the Tax Deed or a Warranty Claim under paragraph 7 of Schedule 2
and any such Claim shall (if it has not been previously
satisfied,
settled or withdrawn) be deemed to be withdrawn six months after
the relevant time limit set out above unless legal proceedings in
respect of it have been commenced by being both issued and
served;
7.2.2 Minimum Claims
In respect of any Warranty Claim arising from any single
circumstance, if the amount of the Warranty Claim does not exceed
50,000 (save that Warranty Claims relating to a series of
connected matters shall be aggregated for this purpose) but the
Vendors shall not be liable for a Warranty Claim in excess of
that
amount unless the liability determined in respect of any such
claim (excluding interest, costs and expenses) also exceeds that
amount;
7.2.3 Aggregate Minimum Claims
In respect of any Warranty Claim unless the aggregate amount of
all Warranty Claims for which the Vendors would otherwise be
liable under this Agreement exceeds 500,000 and in the event that
the aggregated amounts exceed 500,000 the Vendors shall be liable
for the whole amount and not just the excess;
7.2.4 Maximum Claims
In respect of any claim under this Agreement or the Tax Deed to
the extent that the aggregate amount of the liability of the
Vendors for all claims made under this Agreement and the Tax Deed
would exceed 82 million provided that any liability which the
Vendors may have under this Agreement or the Tax Deed in excess
of
80 million shall not be satisfied in cash but shall be satisfied
by the cancellation of the corresponding nominal amount of Loan
Notes up to 2 million;
7.2.5 Contingent Liabilities
For any Claim in respect of any liability which is contingent
unless and until such contingent liability becomes an actual
liability and is due and payable within 6 months of the expiry of
the relevant period in Clause 7.2.1;
7.2.6 Provisions in the Accounts
In respect of any Warranty Claim if and to the extent that:
(i) specific provision or reserve is made for the matter giving
rise to the claim in the Audited Accounts (and not subsequently
released);
(ii) any sum is received by any Group Company in respect of the
matter which is the subject of the Claim which has previously
been
written off as irrecoverable in the accounts of the Group
Company;
7.2.7 For any Claim in respect of any matter, act, omission
or
circumstance (or any combination thereof) to the extent that the
same would not have occurred but for:
(i) Voluntary Acts of Purchaser
any voluntary act, omission or transaction of the Purchaser or
any
member of the Purchaser's Group or any of the Group Companies, or
their respective directors, employees or agents, after Completion
done or omitted otherwise than in the ordinary course of the
business of the relevant company and in circumstances where the
relevant person knew or ought to have known that the act,
omission
or transaction would be likely to result in a breach of this
Agreement;
(ii) Changes in Legislation
the passing of, or any change in, after the date of this
Agreement, any law, rule, regulation or published administrative
practice of any government, governmental department, agency or
regulatory body including (without prejudice to the generality of
the foregoing) any increase in the rates of Taxation or any
imposition of Taxation or any withdrawal of relief from Taxation
not actually (or prospectively) in effect at the date of this
Agreement;
(iii) Accounting and Taxation Changes
any change in accounting or Taxation policy, bases or practice of
the Purchaser or any of the Group Companies introduced or having
effect after Completion;
7.2.8 Insurance
in respect of any Claim to the extent that any Losses arising
from
such Claim are covered by a policy of insurance in force on the
date of this Agreement;
7.2.9 Net Benefit
in any respect of any Claim for any liability suffered by the
Purchaser or any of the Group Companies to the extent of any
corresponding savings by or net benefit to the Purchaser or any
other member of the Purchaser's Group or any other Group Company
arising in respect of the matter giving rise to the claim;
7.2.10 Purchaser's Knowledge
(except as provided by Clause 7.1.3) in respect of any Claim to
the extent that the relevant facts, matters or circumstances,
giving rise to the claim were known by the Purchaser or by any of
its directors or any member of the Management Team prior to the
execution of this Agreement.
7.3 The limitations on the liability of the Vendor
contained in Clauses 7.1 and 7.2 shall not apply in respect of
Claims arising as a result of fraud by the Vendors or as a result
of wilful non-disclosure by the Vendors or in respect of a breach
of Warranties 1.1, 1.2, 1.3.1, 1.4, 1.5 and 8.1.
7.4 Mitigation of Loss
The Purchaser shall procure that all reasonable steps are taken
and all reasonable assistance is given to avoid or mitigate any
losses which in the absence of mitigation might give rise to a
liability in respect of any claim under this Agreement.
7.5 Conduct of Claims
7.5.1 If the Purchaser or any Group Company becomes aware of
any
matter that may give rise to a Warranty Claim notice of that fact
shall be given within 30 days to Britton Group Limited (on behalf
of the Vendors).
7.5.2 Without prejudice to the validity of the Warranty Claim
or
alleged Warranty Claim in question, the Purchaser shall give, and
shall procure that the relevant Group Companies give, subject to
their being paid all reasonable costs and expenses, all such
information and assistance, including (upon reasonable notice
being given and during normal office hours) access to premises
and
personnel, and the right to examine and copy or photograph any
relevant assets, accounts, documents and records, as Britton
Group
Limited (on behalf of the Vendors) or its accountants or
professional advisers may reasonably request for the purposes of
investigating the matter. The Vendors agree to keep all such
information confidential and only to use it for such purpose.
7.5.3 If the Warranty Claim in question is a result of or in
connection with a claim by or liability to a third party then:
(i) without prejudice to Clause 7.5.1, the Purchaser shall pass
on any written claim from a third party to Britton Group Limited
(on behalf of the Vendors) within 15 Business Days of receipt or,
if less, before the expiry of any delay or time limit imposed by
the third party in relation to the claim;
(ii) no admission of liability shall be made by or on behalf of
the Purchaser or any Group Company and the claim shall not be
compromised, disposed of or settled without the consent of
Britton
Group Limited (on behalf of the Vendors) not to be unreasonably
withheld or delayed;
(iii) Britton Group Limited (on behalf of the Vendors) shall
be
entitled at its own expense in its absolute discretion to take
such action as it shall deem necessary having first consulted
with
the Purchaser and taken into account the commercial interests,
goodwill and reputation of the Purchaser and the Group to avoid,
dispute, deny, defend, resist, appeal, compromise or contest such
claim or liability (including, without limitation, making
counterclaims or other claims against third parties) in the name
of and on behalf of the Purchaser or the Group Company concerned
and to have the conduct of any related proceedings, negotiations
or appeals;
(iv) the Purchaser will give and procure that the relevant Group
Company gives, subject to their being paid all reasonable costs
and expenses, all such information and assistance, including
(upon
reasonable notice being given and during normal office hours)
access to premises and personnel, and the right to examine and
copy or photograph any relevant assets, accounts, documents and
records, for the purpose of avoiding, disputing, denying,
defending, resisting, appealing, compromising or contesting any
such claim or liability as Britton Group Limited (on behalf of
the
Vendors) or its professional advisers reasonably request. The
Vendors agree to keep all such information confidential and only
to use it for such purpose.
7.6 Prior Receipt
If a Vendor pays an amount in discharge of any claim under this
Agreement and the Purchaser or any Group Company subsequently
recovers from a third party a sum which is referable to the
subject matter of the claim and which would not otherwise have
been received by the Purchaser, the Purchaser shall pay, or shall
procure that the relevant Group Company pays, to Britton Group
Limited (on behalf of the Vendors) an amount equal to (i) the sum
recovered from the third party less any reasonable costs and
expenses incurred in obtaining such recovery or (ii) if less, the
amount previously paid by (or on behalf of) the Vendor to the
Purchaser.
7.7 Double Claims
The Purchaser shall not be entitled to recover from the Vendors
(or either of them) under this Agreement or under the Tax Deed
more than once in respect of the same damage suffered.
7.8 Tax
In calculating the liability of the Vendors, for any Warranty
Claim, there shall be taken into account the amount (if any) by
which any Taxation for which the Purchaser or any Group Company
would otherwise have been accountable or liable to be assessed is
actually reduced or extinguished as a result of the matter giving
rise to such liability.
7.9 Effect of Completion
The Warranties and all other provisions of this Agreement insofar
as the same shall not have been performed at Completion shall not
be extinguished or affected by Completion, or by any other event
or matter whatsoever, except by a specific and duly authorised
written waiver or release by the Purchaser.
7.10 Remedies
7.10.1 This Agreement supersedes any previous written or oral
agreement between the parties in relation to the matters dealt
with in this Agreement and contains the whole agreement between
the parties relating to the subject matter of this Agreement at
the date hereof to the exclusion of any terms implied by law
which
may be excluded by contract. The Purchaser acknowledges that it
has not been induced to enter into this Agreement by any
representation, warranty or undertaking not expressly
incorporated
into it.
7.10.2 So far as permitted by law and except in the case of
fraud, the Purchaser agrees and acknowledges that its only rights
and remedies in relation to any representation, warranty or
undertaking made or given in connection with this Agreement shall
be for damages in contract for breach of this Agreement and not
rescission of this Agreement, nor damages in tort or under
statute
(whether under the Misrepresentation Act 1967 or otherwise), nor
any other remedy.
7.10.3 Each party to this Agreement confirms it has received
independent legal advice relating to all the matters provided for
in this Agreement, including the provisions of this Clause, and
agrees having considered the terms of this Clause and the
Agreement as a whole, that the provisions of this Clause are fair
and reasonable.
7.10.4 In Clause 7.10.1 and 7.10.3 this Agreement includes the
Disclosure Letter and all documents entered into pursuant to this
Agreement.
8 Completion Accounts
8.1 The Completion Accounts
The Purchaser shall procure that as soon as practicable following
Completion there shall be drawn up aggregated balance sheets of
the Group Companies as at Completion and aggregated profit and
loss accounts of such companies in respect of the period from the
Balance Sheet Date to Completion (the Completion Accounts) and
that the same are reviewed by the Purchaser's accountants. The
Completion Accounts shall be drawn up in accordance with the
principles, methods and bases adopted in drawing up and on a
consistent basis with the agreed form balance sheet a copy of
which is attached as Schedule 7 and applying a similar level of
prudence as used in drawing up the agreed form balance sheet and
taking account of the provision of Clause 8.3 and (so far as not
inconsistent therewith) in accordance with accountancy
principles,
policies and practices generally accepted in the United Kingdom.
For the avoidance of doubt the same provision shall be retained
within creditors in the Completion Accounts in respect of the
Mark
Ashton insurance case as is made in the agreed form balance
sheet.
8.2 Preparation
8.2.1 The Completion Accounts shall be delivered to Britton
Group
Limited (on behalf of the Vendors) by the Purchaser as soon as is
practicable following Completion and, in any event, not later
than
45 days after Completion together with a report by the
Purchaser's
accountants addressed to the Purchaser and Britton Group Limited
(on behalf of the Vendors) stating whether in their opinion the
Completion Accounts have been prepared in accordance with Clause
8.1. Without prejudice to the foregoing, the Purchaser shall
procure that the management accounts for April 1998 (if any)
delivered to the Purchaser following Completion are delivered at
the same time to Britton Group Limited (on behalf of the Vendors)
as they are delivered to the Purchaser although relevant
personnel, books and records of the Group Companies shall not be
made available to Britton Group Limited (on behalf of the
Vendors), its representatives or its advisers in accordance with
clause 8.2.2 until the Completion Accounts have been delivered to
Britton Group Limited (on behalf of the Vendors) by the Purchaser
in accordance with this Clause 8.2.1.
8.2.2 In order to enable Britton Group Limited (on behalf of
the
Vendors) and the Vendors' accountants to review the Completion
Accounts, the Purchaser shall keep up-to-date and make available
to the Vendors' representatives and to the Vendors' accountants
relevant books and records within its possession or control
relating to the businesses of the Group Companies relating to the
period before Completion and the period of up to 45 days after
Completion and provide access to relevant personnel, in each case
upon reasonable notice and during normal office hours.
8.2.3 If Britton Group Limited (on behalf of the Vendors)
does not
within 30 days of presentation to it of the Completion Accounts
(or, if later, within 7 Business Days of presentation of the
audited accounts for the period to Completion) give notice to the
Purchaser that it disagrees with the Completion Accounts or any
item thereof such notice stating the reasons for the disagreement
in reasonable detail (the Vendor's Disagreement Notice), the
Completion Accounts shall be final and binding on the parties for
all purposes. If Britton Group Limited gives a valid Vendor's
Disagreement Notice within such period, the parties shall attempt
in good faith to reach agreement in respect thereof and, if they
are unable to do so within 21days of such notification, either
party may by notice to the other (copied to the Reporting
Accountants) require that the Completion Accounts be referred for
determination to the Reporting Accountants (an Appointment
Notice)
on the basis that the Reporting Accountants are to make a
decision
on the matter within 28 days starting on the day after receipt by
the Reporting Accountants of the Appointment Notice.
8.2.4 The Reporting Accountants shall act as experts and not
as
arbitrators and their determination of the Completion Accounts
shall be final and binding on the parties save in the event of
manifest error (when the relevant part of their determination
shall be void and the matter shall be remitted to the Reporting
Accountants for correction).
8.2.5 The expenses of the Reporting Accountants shall be
borne as
they shall direct at the time they make any determination or,
failing such direction, equally between the Purchaser, on the one
hand, and the Vendors, on the other.
8.2.6 The parties shall co-operate with the Reporting
Accountants
and comply with their reasonable requests made in connection with
the carrying out of their duties under this Agreement. In
particular, without limitation, the Purchaser shall keep up to
date and, subject to reasonable notice, make available to the
Vendors' representatives, the Vendors' accountants and the
Reporting Accountants, relevant books and records within its
possession or control relating to the businesses of the Group
Companies during normal office hours during the period from the
appointment of the Reporting Accountants down to the making of
the
relevant determination.
8.2.7 Each party and the Reporting Accountants shall, and
shall
procure that its accountants and other advisers shall, keep all
information and documents provided to them pursuant to this
Clause
8.2 confidential and shall not use the same for any purpose,
except for disclosure or use in connection with the preparation
of
the Completion Accounts, the proceedings of the Reporting
Accountants or another matter arising out of this Agreement or in
defending any claim or argument or alleged claim or argument
relating to this Agreement or its subject matter.
8.3 Adjustment of Consideration
Within 10 Business Days after agreement or determination by the
Reporting Accountants of the Completion Accounts:
8.3.1 The Purchaser shall pay to Britton Group Limited on
behalf
of the Vendors an amount equal to any excess of the level of
stock, trade debtors and trade creditors of the Group Companies
shown in the balance sheet in the Completion Accounts compared
with the level of stock, trade debtors and trade creditors of the
Group Companies shown in the agreed form balance sheet. For the
avoidance of doubt the stock trade debtors and trade creditors in
the Completion Accounts shall be classified on a consistent basis
with the stock, trade debtors and trade creditors in the agreed
form balance sheet.
8.3.2 Britton Group Limited on behalf of the Vendors shall
pay to
the Purchaser an amount equal to any deficiency of the level of
stock, trade debtors and trade creditors of the Group Companies
shown in the balance sheet in the Completion Accounts compared
with the level of stock, trade debtors and trade creditors of the
Group Companies shown in the agreed form balance sheet. For the
avoidance of doubt the stock, trade debtors and trade creditors
in
the Completion Accounts shall be classified on a consistent basis
with the stock, trade debtors and trade creditors in the agreed
form balance sheet.
8.3.3 For the purposes of this Clause 8.3 the balance sheet
in the
Completion Accounts shall be drawn up in accordance with the
principles, methods and bases adopted in drawing up the agreed
form balance sheet and the level of stock, trade creditors and
trade debtors shall be calculated on a consistent basis with that
used in the agreed form balance sheet.
8.3.4 The Purchaser shall pay to Britton Group Limited on
behalf
of the Vendors an amount equal to any deficiency of the level of
the Actual Net Cash and Debt Amount shown in the balance sheet in
the Completion Accounts compared with the Estimated Net Cash and
Debt Amount.
8.3.5 Britton Group Limited on behalf of the Vendors shall
pay to
the Purchaser an amount equal to any excess of the level of the
Actual Net Cash and Debt Amount shown in the balance sheet in the
Completion Accounts compared with the Estimated Net Cash and Debt
Amount.
8.3.6 For the avoidance of doubt the Group's cash balances,
Group's bank debt and overdrafts, and Group finance lease debts
shown in the balance sheet in the Completion Accounts shall be
calculated (for the purposes of establishing the Actual Net Cash
and Debt Amount) in accordance with the principles, methods and
bases used in, and on a consistent basis with the principles,
methods and bases used in calculating those items in the agreed
form balance sheet.
8.3.7 Following the making of any adjusting payments pursuant
to
this Clause 8.3 and the making of any appropriate adjustments to
the table set out in Part 1B of Schedule 1:
(i) if the Actual Net Intergroup Debt is higher or lower than
the Estimated Net Intergroup Debt this shall not of itself result
in the amount shown against the relevant Company's name in the
Total column (as shown in the table in Part 1B of Schedule 1)
being adjusted or in any further amount whatsoever being paid by
the Purchaser or the relevant Group Company to the Vendors;
(ii) the Vendors shall apply the amount of the cash received by
the Vendors from the Purchaser or the relevant Group Company
which
is attributable to the Actual Net Intergroup Debt, together with
such further amount as may be necessary for the purpose, in
repaying to each relevant member of the Retained Group the net
indebtedness owed to such member by any member of the Group; and
(iii) the Vendors shall procure that all members of the
Retained
Group and the Purchaser shall procure that all members of the
Group shall acknowledge that each member of the Group or, as the
case may be, the Retained Group, which is indebted to it at
Completion has been fully discharged from such indebtedness.
8.4 Payments made pursuant to Clauses 3.1 and 8.3 are in
full and final settlement of all sums due to the Retained Group
by
any Group Company or vice versa and each of the Vendors confirms
that except as provided in this Agreement no other sums are owing
or accrued to it or any member of the Retained Group by any Group
Company.
8.5 Representation Letter
The Purchaser shall procure that the Management Team delivers to
Britton Group Limited (on behalf of the Vendor) the Management
Representation Letter upon the execution of this Agreement.
9 Other Provisions
9.1 Confidential Information
9.1.1 After Completion each party shall:
(i) not use or disclose to a person Confidential Information it
has or acquires; and
(ii) use all reasonable endeavours to prevent the use or
disclosure of Confidential Information.
9.1.2 After Completion each party shall use all reasonable
endeavours to ensure that each of its subsidiaries and holding
companies complies with Clause 9.1.1.
9.1.3 Clause 9.1.1 does not apply to:
(i) disclosure of Confidential Information to a director,
officer or employee of the Purchaser's Group or the Vendor's
Group
(as the context requires) whose function requires him to have the
Confidential Information;
(ii) use or disclosure of Confidential Information required to be
used or disclosed by law or the London Stock Exchange or New York
Stock Exchange;
(iii) disclosure of Confidential Information to an adviser
for the
purpose of advising the disclosing party but only on terms that
Clause 9.1.1 applies to use or disclosure by the adviser; or
(iv) Confidential Information which becomes publicly known except
by the breach of Clause 9.1.1 or 9.1.2.
9.1.4 For the purpose of this Clause 9.1, Confidential
Information
means, in the case of the Vendors, all information owned by any
Group Company and used in or otherwise relating to the business,
customers, suppliers or financial or other affairs of any Group
Company and which is not publicly known at Completion and in the
case of the Purchaser all information owned by a Retained Group
Company and used in or otherwise relating to the business,
customers, suppliers or financial or other affairs of any Vendor
Group Company and which is not publicly known at Completion.
9.2 Announcements
9.2.1 No party shall for a period of 3 months following
Completion
make or authorise or issue any formal announcement or circular
concerning the transaction referred to in or contemplated by this
Agreement or any other document entered into pursuant to this
Agreement unless it has first obtained (in the case of the
Vendors
or the Guarantor) the Purchaser's written consent and (in the
case
of the Purchaser) Britton Group Limited's written consent (on
behalf of the Vendors), which in each case may not be
unreasonably
withheld or delayed.
9.2.2 Clause 9.2.1 does not apply to any public announcement,
communication or circular:
(i) required by law or a regulation of a stock exchange, where
the party required to make or send it has, if practicable, first
consulted and taken into account the reasonable requirements of
the other party; or
(ii) made or sent by the Purchaser after Completion to a
customer, client or supplier of a Group Company informing it of
the Purchaser's' purchase of the Shares.
9.3 Successors and Assigns
9.3.1 This Agreement is personal to the parties to it.
Accordingly, subject to Clauses 9.3.2 and 9.3.3 neither the
Purchaser on the one hand nor the Vendors on the other may,
without the prior written consent of the other, assign the
benefit
of all or any of the other's obligations under this Agreement,
nor
any benefit arising under or out of this Agreement nor shall the
Purchaser be entitled to make any claim against the Vendors in
respect of any loss which it does not suffer in its own capacity
as beneficial owner of the Shares.
9.3.2 Except as otherwise expressly provided in this
Agreement,
either the Vendors on the one hand or the Purchaser on the other
may, without the consent of the other, assign to a connected
company the benefit of all or any of the other party's
obligations
under this Agreement provided however that such assignment shall
not be absolute but shall be expressed to have effect only for so
long as the assignee remains a connected company. For the
purposes
of this sub-clause a connected company is a company which is a
subsidiary of the party concerned or which is a holding company
of
such party or a subsidiary of such holding company.
9.3.3 The Purchaser may assign the benefit of this Agreement
(the
Rights) to any bank or financial institution or other person by
way of security for the purposes of or in connection with the
financing (whether in whole or in part) by the Purchaser of:
(i) the acquisition of the Shares contemplated by this
Agreement; or
(ii) any of its, or its subsidiaries' working capital or other
requirements; and
its liquidator or administrator, or any receiver or other person
or entity appointed to enforce any of such security, may enter
into any other assignments or transfers of any of the Rights
Provided that no assignee or successor in title to the Purchaser
shall have any greater rights under this Agreement against the
Vendors than the Purchaser would have had.
9.4 Variation
No variation of this Agreement shall be effective unless in
writing and signed by or on behalf of each of the parties to this
Agreement.
9.5 General
9.5.1 Any time, date or period referred to in any provision
of
this Agreement may be extended by mutual agreement between the
parties.
9.5.2 The failure to exercise or delay in exercising a right
or
remedy provided by this Agreement or by law does not constitute a
waiver of the right or remedy or a waiver of other rights or
remedies. Save as provided by this Agreement, no single or
partial
exercise of a right or remedy provided by this Agreement or by
law
prevents further exercise of the right or remedy or the exercise
of another right or remedy.
9.5.3 Except to the extent that they have been performed and
except where this Agreement provides otherwise, the obligations
contained in this Agreement remain in force after Completion.
9.6 Further Assurance
At any time after the date of this Agreement the Vendors shall
and
shall use all reasonable endeavours to procure that any necessary
third party shall execute such documents and do such acts and
things as the Purchaser may reasonably require for the purpose of
giving to the Purchaser the full benefit of all the provisions of
this Agreement. The costs of procuring any such third party
action
shall be borne equally by the Purchaser on the one hand and the
Vendors on the other.
9.7 Costs
The Vendors shall bear all legal, accountancy and other costs and
expenses incurred by them in connection with this Agreement and
the sale of the Shares. The Purchaser shall bear all such costs
and expenses incurred by it and the Management Team.
9.8 Interest
If either of the Vendors or the Purchaser defaults in the payment
when due of any sum payable under this Agreement (whether
determined by agreement or pursuant to an order of a court or
otherwise) the liability of the defaulting party shall be
increased to include interest on such sum from the date when such
payment is due until the date of actual payment (as well after as
before judgment) at a rate per annum of 2 per cent above the base
rate from time to time of Barclays Bank PLC. Such interest shall
accrue from day to day.
9.9 Notices
9.9.1 Any notice or other communication requiring to be given
or
served under or in connection with this Agreement shall be in
writing and shall be sufficiently given or served if delivered or
sent:
In the case of either of the Vendors to Britton Group Limited at:
ACX Technologies, Inc.
16000 Table Mountain Parkway
Golden
Colorado 80403
United States of America
Fax:
00 1 303 271 7055
Attention:
General Counsel
with a copy to
Holme Roberts & Owen LLP
Mellier House
26a Albermarle Street
London W1X 3FA
Fax:
0171 499 7769
Attention:
Managing Partner
In the case of the Purchaser to Bealaw (461) Limited]:
42 Colebrooke Row
Islington
London N1 8AF
Fax:
0171 359 5691
Attention:
William Bishop
In the case of the Guarantor to ACX Technologies, Inc.:
16000 Table Mountain Parkway
Golden
Colorado 80403
Fax: 001 303 271 7003
Attention: The Company Secretary and General Counsel
9.9.2 Any such notice or other communication shall be
delivered by
hand or sent by courier or fax. Such notice or communication
shall
conclusively be deemed to have been given or served at the time
of
despatch, in case of service in the United Kingdom, or on the
next
but one Business Day in the case of international service.
9.10 Use of Intellectual Property Rights/Change of Name
9.10.1 The Vendors shall not, either alone or jointly with,
through or as manager, adviser, consultant or agent for a person,
use in connection with a business which competes, directly or
indirectly, with a business of a Group Company as operated at the
date of this Agreement, any Intellectual Property currently owned
by the Group Companies or any Intellectual Property exclusively
used by the Group Company at the date of this Agreement (in
particular, a name including the words Britton, Polymon, Taco,
Tacolin, Hubcharm, Decoflex, Polyian, Polylope, Transrap,
Gelplas,
Precision Packaging and/or Packbourne) or use in that connection
anything which is intended to be confused with any such
Intellectual Property.
9.10.2 The Vendors shall ensure that each Vendor Group Company
complies with Clause 9.10.1.
9.10.3 Within 2 weeks of Completion Britton Group Limited
shall change its name and shall procure that the name of any
Vendor Group Company which includes the word Britton is changed
so
as not to include the word Britton or suggest any connection with
the Group. The Vendors acknowledge that reputation and goodwill
are attached to the name Britton and that the Purchaser is to
acquire all the Vendor's rights in that name pursuant to this
Agreement.
9.11 Further Undertakings by the Vendors
9.11.1 For 2 years starting on the date of this Agreement
neither of the Vendors shall directly or indirectly:
(i) operate, or be engaged, concerned or interested in, or
assist, a business which competes, directly or indirectly, with
the business of a Group Company as operated at the date of this
Agreement in the United Kingdom, France, Holland, Eire, Benelux,
Spain, Portugal, Germany, Italy, Switzerland and Bahrain, whether
alone or jointly with, through or as manager, adviser, consultant
or agent for another person; or
(ii) in competition with a business of a Group Company as
operated at the date of this Agreement in the United Kingdom,
France, Holland, Eire, Benelux, Spain, Portugal, Germany, Italy,
Switzerland and Bahrain, either seek to obtain orders from, or do
business with, or encourage directly or indirectly another person
to obtain orders from or do business with, a person who has been
a
customer of a Group Company at any time during the 12 months
before the date of this Agreement;
(iii) in connection with a business competing with the
business of
a Group Company operated at the date of this Agreement engage,
employ, solicit, or contact with a view to his engagement or
employment by another person, a director, officer, senior
employee
or manager of a Group Company (excluding the Vendor Appointees)
or
a person who was a director, officer, senior employee or manager
of a Group Company at any time during the 12 months before the
date of this Agreement in either case where the director,
officer,
senior employee, manager or person either has Confidential
Information or would be in a position to exploit a Group
Company's
trade connections;
(iv) in competition with a business of a Group Company at the
date of this Agreement operate, or be engaged, concerned or
interested in, or assist, a business which manufactures or
supplies INTERVOID tape in the United States of America.
9.11.2 Each restriction in Clause 9.11.1 constitutes an
entirely independent restriction on each Vendor.
9.11.3 Britton Group Limited shall ensure that each member of
the Vendors' Group complies with Clause 9.11.
9.11.4 Nothing in this Clause 9.11 shall prohibit a Vendor or
any member of the Vendors' Group (i) from carrying on any
business
which it currently carries on or from being engaged in any
business which manufacturers, markets or sells flexible or
folding
cartons or (ii) from acquiring or being engaged in any company a
minor part of whose business (which for these purposes shall mean
that less than 20% of that company's turnover or profits are
attributable to the competing business) competes directly or
indirectly with a Group Company. Nor shall a Vendor nor any
member
of the Vendors' Group be prohibited from employing any person who
has responded to an advertisement in general circulation which
was
not specifically targeted at the person in question.
9.12 Severance
If any term or provision in this Agreement is be held to be
illegal or unenforceable, in whole or in part, under any
enactment
or rule of law, such term or provision or part shall to that
extent be deemed not to form part of this Agreement but the
enforceability of the remainder of this Agreement shall not be
affected.
10 Guarantee
10.1 Unconditional Guarantee
In consideration of the Purchaser entering into this Agreement,
the Guarantor hereby unconditionally and irrevocably guarantees
to
the Purchaser the due and punctual performance by each of the
Vendors of all its obligations contained in this Agreement and
the
Tax Deed (the Guaranteed Obligations) and agrees to indemnify the
Purchaser against all losses, liabilities, costs (including
without limitation legal costs), charges, expenses, actions,
proceedings, claims and demands which the Purchaser may suffer
through or arising from any breach by a Vendor of the Guaranteed
Obligations to the extent of any limit on the liability of the
Vendors in this Agreement or the Tax Deed. The Guarantor's
obligations under Clause 10 are primary obligations and not those
of a mere surety. The liability of the Guarantor under this
Clause
shall not be released or diminished by any forbearance, neglect
or
delay in seeking performance of the Guaranteed Obligations or any
granting of time for such performance or any amendment to or
variation or release of the Guaranteed Obligations or any other
event or circumstances whatsoever which would or might (but for
this Clause) operate to diminish, impair or discharge the
Guarantor's liability under this guarantee or provide a defence
for a surety provided always that the Guarantor's liability under
this Agreement shall never exceed the liability of the Vendors in
relation to the Guaranteed Obligations.
10.2 Vendors' Default
If and whenever a Vendor defaults for any reason whatsoever in
the
performance of any of the Guaranteed Obligations the Guarantor
shall forthwith upon demand unconditionally perform (or procure
performance of) and satisfy (or procure the satisfaction of) the
Guaranteed Obligations in regard to which such default has been
made in the manner prescribed by this Agreement or the Tax Deed
and so that the same benefits (but no greater benefits) shall be
conferred on the Purchaser as it would have received if the
Guaranteed Obligations had been duly performed and satisfied by
the Vendor.
10.3 Continuing Guarantee
This guarantee is to be a continuing guarantee and accordingly is
to remain in force until all the Guaranteed Obligations shall
have
been performed or satisfied. This guarantee is in addition to and
without prejudice to and not in substitution for any rights or
security which the Purchaser may now or hereafter have or hold
for
the performance and observance of the Guaranteed Obligations.
10.4 Legal limitations etc. of Vendors
As a separate and independent stipulation the Guarantor agrees
that any of the Guaranteed Obligations (including, without
limitation, any moneys payable) which may not be enforceable
against or recoverable from a Vendor by reason of any legal
limitation, disability or incapacity on or of the Vendor or any
other fact or circumstance (other than any limitation imposed by
this Agreement or the Tax Deed) shall nevertheless be enforceable
against and recoverable from the Guarantor as though the same had
been incurred by the Guarantor and the Guarantor were the sole or
principal obligor in respect thereof and shall be performed or
paid by the Guarantor on demand.
11 Excluded Property
11.1 The Purchaser shall permit Britton Group Limited on
behalf of Britton Group Plastics Limited to apply to the Landlord
for consent to transfer the Excluded Lease to Britton Group
Limited and to pursue such application until the Landlord's
consent is obtained and the Purchaser shall use all reasonable
endeavours at the cost of Britton Group Limited to assist Britton
Group Limited in obtaining the Landlord's consent.
11.2 From Completion Britton Group Limited and any of its
subsidiary companies may go into or remain in occupation of the
Excluded Property as licensee of the Purchaser subject to the
following provisions:
11.2.1 Britton Group Limited shall pay or indemnify the
Purchaser on demand against all rent outgoings and expenses
relating thereto in respect of any period whether before or after
Completion;
11.2.2 Britton Group Limited shall be entitled to any income
thereof arising after Completion;
11.2.3 Britton Group Limited shall indemnify the Purchaser and
Britton Group Plastics Limited against all costs losses
liabilities actions proceedings claims, demands and liabilities
of
whatever nature arising from the possession or occupation of the
Excluded Property by Britton Group Limited including (without
prejudice to the generality of the foregoing) any action taken by
the Landlord for breach by Britton Group Limited of any of the
covenants and conditions in the Excluded Lease (whether before or
after Completion) and in particular but without limitation will
observe and perform all the covenants and conditions contained or
referred to in the Excluded Lease and other deeds and agreements
affecting or relating thereto.
11.3 The Purchaser shall deliver to Britton Group Limited as
soon as reasonably possible after receipt any notice or other
document concerning or relating to the Excluded Property and
shall
serve such notices bring such proceedings make such claims and
demands and take such action in its own name as Britton Group
Limited may reasonably require and Britton Group Limited shall
indemnify and keep the Purchaser indemnified against all costs
claims proceedings and liabilities in respect thereof.
11.4 As soon as the Landlord's consent is obtained to the
transfer by Britton Group Plastics of its interest in the
Excluded
Lease to Britton Group Limited the Purchaser will forthwith
execute and deliver to Britton Group Limited the Transfer with
the
relevant documents of title and the Excluded Lease shall be
transferred to Britton Group Limited in consideration of the
payment by Britton Group Limited to the Purchaser of one pound
within 10 Business Days of the date of the Landlord's consent.
11.5 Without prejudice to the generality of the foregoing in
the event that the Landlord shall successfully pursue any
proceedings for forfeiture of the Excluded Lease on the grounds
that Britton Group Limited or its subsidiary companies have been
given possession or occupation of the Excluded Property as a
result of the implementation of the provisions of this Agreement
the parties will discuss and use all reasonable endeavours to
agree a suitable course of action including, if appropriate, such
action as may be necessary to try and obtain relief from
forfeiture.
11.6 The Purchaser shall remove all plant and machinery
owned by it from the Excluded Property prior to the transfer of
the Excluded Lease.
11.7 In the event that any material documents of title to
the Properties are missing, the Vendors will use their reasonable
endeavours:
11.7.1 to assist the Purchaser in locating the original
documents or procuring replacement Land Certificates, certified
copy leases and certified copy conveyances as appropriate;
11.7.2 to assist the Purchaser in preparing statutory
declarations as to the loss of those documents and it is hereby
agreed that the Vendors shall be responsible for the payment of
the reasonable and proper expenses of the Purchaser up to a
maximum of 5,000 in aggregate in preparing those statutory
declarations; and
11.7.3 to assist the Purchaser in replying to any requisitions
raised by HM Land Registry as a result of the terms of this
Agreement.
12 Counterparts
This Agreement may be executed in any number of counterparts each
of which shall be deemed an original, but all the counterparts
shall together constitute one and the same instrument.
13 Restrictive Trade Practices
Notwithstanding any other provision of this Agreement, no
provision of this Agreement which is of such a nature as to make
the Agreement liable to registration under the Restrictive Trade
Practices Act 1976 shall take effect until the day after that on
which particulars thereof have been duly furnished to the
Director
General of Fair Trading pursuant to the said Act. For the
purposes
of this Clause 13, Agreement shall include any agreement forming
part of the same arrangement.
14 Governing Law and Submission to Jurisdiction
This Agreement and the documents to be entered into pursuant to
it, save as expressly referred to therein, shall be governed by
and construed in accordance with English law and all the parties
irrevocably agree that the courts of England are to have
exclusive
jurisdiction to settle any disputes which may arise out of or in
connection with this Agreement and such documents.
In witness whereof this Agreement has been duly executed.
SIGNED by
for and on behalf of
BRITTON GROUP LIMITED
in the presence of:
}
Witness's signature
Name
Address
Occupation
SIGNED by
for and on behalf of
NMC GROUP LIMITED
in the presence of:
}
Witness's signature
Name
Address
Occupation
SIGNED by
on behalf of BEALAW (461) LIMITED
in the presence of:
}
Witness's signature
Name
Address
Occupation
SIGNED by
on behalf of ACX TECHNOLOGIES, INC.
in the presence of:
}
Witness's signature
Name
Address
Occupation
Schedule 1
Part 1A
Particulars of Shares Sold
(1)
Names of the Companies
(2)
Shares Sold
(3)
Vendor
(a) Britton Group Plastics Limited
10,309,312 Ordinary Shares of 50 pence each
Britton Group Limited
(b) Britton Security Packaging Limited
3,090 Ordinary Shares of
1 each
NMC Group Limited
(c) Britton Precision Limited
4,500 Ordinary Shares of 1 each
NMC Group Limited
(d) Britton Gelplas Limited
880,000 Ordinary Shares of 1 each
Britton Group Limited
Schedule 1
Part 1B
Apportionment of cash payable at Completion
The Estimated Net Intergroup Debt, Estimated Net Cash and Debt
and
Completion Consideration are to be allocated as follows:
Recipient
Estimated Net Intergroup Debt
Estimated Net Cash and Debt
Completion Consideration
Total
1
Britton Group Limited in respect of the Shares in
(a) Britton Group Plastics Limited
25,017,000
6,703,000
10,142,000
41,862,000
(b) Britton Gelplas Limited
1,980,000
2,121,000
9,079,000
13,180,000
2
NMC Group Limited in respect of the Shares in
(a) Britton Precision Limited
140,000
1,318,000
4,115,000
5,573,000
(b) Britton Security Packaging Limited
6,467,000
3,699,000
9,154,000
19,320,000
33,604,000
13,841,000
32,490,000
79,935,000
Following the agreement or determination of the Completion
Accounts and the making of any adjusting payments pursuant to
Clause 8.3, appropriate adjustments shall be made to the table
set
out above so that:-
(a) the Estimated Net Intergroup Debt for each Company (and its
Subsidiaries) is replaced by the Actual Net Intergroup Debt;
(b) the Estimated Net Cash and Debt for each Company (and its
Subsidiaries) is replaced by the Actual Net Cash and Debt;
(c) the amount shown next to each Company in the Total column
reflects any differences between the Estimated Net Cash and Debt
and the Actual Net Cash and Debt attributable to such Company
(and
its Subsidiaries) and/or any excess or deficiency in the level of
stock, trade debtors and trade creditors of the relevant Company
(and its Subsidiaries) compared with the level shown in the
agreed
form balance sheet; and
(d) the cash Consideration payable in respect of the Shares of
each Company reflects any adjustments made in respect of (a), (b)
or (c) above.
The Vendors and the Purchaser agree that, in the event that any
such adjustments are made, the total cash received by the
relevant
Vendor, whether on or after Completion, shall be deemed to have
been applied as shown in the table set out above as adjusted in
the manner described above.
Part 2
Particulars of Directors of the Companies
Britton Precision Limited
Full Names
Usual Address
Paul Howard Bruton
126 Berkeley Avenue, Chesham, Bucks HP5 2RT
John McCarthy
10 Farnham Close, Boringdon, Herts, HP3 0QT
Colin Alfred Smith
39 Aberdeen Park, Highbury, London N5 2AR
Jeffrey Coors
16000 Table Mountain Parkway, Golden, Jefferson, Colorado 80403,
USA
Jedidiah James Burnham
3785 South Valley Drive, Evergreen, Colorado 80439, USA
Jill Bartlett Woodman Sisson
5808 Crestbrook Circle, Morrison, Jefferson, Colorado, 80465 USA
Beth Anne Parish
10726 W. Evans, Lakewood, Colorado 80227, USA
Steven Selinske
23834 Village Blacksmith, San Antonio, Texas 78255, USA
Gail Ann Constancio
2795 Berry Circle, Golden, Colorado, 80401, USA
Britton Security Packaging Limited
Full Names
Usual Address
Colin Alfred Smith
39 Aberdeen Park, Highbury, London N5 2AR
Jedidiah James Burnham
3785 South Valley Drive, Evergreen, Colorado 80439, USA
Gail Ann Constancio
2795 Berry Circle, Golden, Colorado, 80401, USA
Steven Selinske
23834 Village Blacksmith, San Antonio, Texas 78255, USA
Jill Bartlett Woodman Sisson
5808 Crestbrook Circle, Morrison, Colorado, 80465, USA
Beth Anne Parish
10726 W.Evans, Lakewood, Colorado, 80227, USA
Britton Group Plastics Limited
Full Names
Usual Address
Gail Ann Constancio
2795 Berry Circle, Golden, Colorado 80401, USA
Jedidiah James Burnham
3785 South Valley Drive, Evergreen, Colorado 80439, USA
Colin Alfred Smith
39 Aberdeen Park, Highbury, London N5 2AR
Steven Selinske
23834 Village Blacksmith, San Antonio, Texas 78255, USA
Jill Bartlett Woodman Sisson
5808 Crestbrook Circle, Morrison, Colorado, 80465, USA
Beth Anne Parish
10726 W.Evans, Lakewood, Colorado, 80227, USA
Britton Gelplas Limited
Full Names
Usual Address
William Anthony Surbey
30 Grange Street, Clifton, Shefford, Bedfordshire SG17 5EW
John Barry McGill
122 Halsey Drive, Hitchin, Hertfordshire SG4 9PZ
David Robert Peters
32 Beachampstead Road, Great Staughton, St Neots, Huntingdon,
Cambridgeshire PE19 4DX
Colin Alfred Smith
39 Aberdeen Park, Highbury, London N5 2AR
Gail Ann Constancio
2795 Berry Circle, Golden, Colorado, 80401, USA
Jedidiah James Burnham
3785 South Valley Drive, Evergreen, Colorado, 80439, USA
Jill Bartlett Woodman Sisson
5808 Crestbrook Circle, Morrison, Colorado, 80465, USA
Beth Anne Parish
10726 W.Evans, Lakewood, Colorado, 80227, USA
Jeffrey Coors
16000 Table Mountain Parkway, Golden, Jefferson, Colorado, 80403,
USA
Steven Selinske
23834 Village Blacksmith, San Antonio, Texas 78255, USA
Part 3
Particulars of the Companies
Britton Precision Limited
Registered Number:
1614754
Registered Office:
1 Castle Lane, London SW1E 6DN
Date and place of incorporation:
17 February 1982, Cardiff
Secretary:
Hackwood Secretaries Limited
VAT Number:
651 5631 45
Tax District and Reference Number:
Louth 431/23585
Accounting Reference Date:
31 December
Auditors:
Deloitte & Touche
Authorised Share Capital:
7,000 divided into 7,000 Ordinary Shares of 1 each
Issued and fully paid-up Share Capital:
4,500
Britton Security Packaging Limited
Registered Number:
339276
Registered Office:
1 Castle Lane, London SW1E 6DN
Date and place of incorporation:
13 April 1938, London
Secretary:
Hackwood Secretaries Limited
VAT Number:
651 5630 47
Tax District and Reference Number:
Louth 431/21095
Accounting Reference Date:
31 December
Auditors:
Deloitte & Touche
Authorised Share Capital:
3,090 divided into 3,090 shares of 1 each
Issued and fully paid-up Share Capital:
All Ordinary Shares of 1 each
Britton Group Plastics Limited
Registered Number:
2659844
Registered Office:
1 Castle Lane, London SW1E 6DN
Date and place of incorporation:
4 November 1991, Cardiff
Secretary:
Hackwood Secretaries Limited
VAT Number:
627 1731 46
Tax District and Reference Number:
Wrexham 2 914/B 4262
Accounting Reference Date:
31 December
Auditors:
Deloitte & Touche
Authorised Share Capital:
5,154,656 divided into 10,309,312 Ordinary Shares of 50p each
Issued and fully paid-up Share Capital:
All 10,309,312 Ordinary Shares of 50p each
Britton Gelplas Limited
Registered Number:
2222534
Registered Office:
1 Castle Lane, London SW1E 6DN
Date and place of incorporation:
18 February 1988, Cardiff
Secretary:
Hackwood Secretaries Limited
VAT Number:
491 1579 29
Tax District and Reference Number:
Hitchin 328/G 315
Accounting Reference Date:
31 December
Auditors:
Deloitte & Touche
Authorised Share Capital:
880,000 divided into 880,000 Ordinary Shares of 1 each
Issued and fully paid-up Share Capital:
All the 880,000 Ordinary Shares of 1 each
Part 4
Particulars of the Subsidiaries
Subsidiaries of Britton Security Packaging Limited
(1) Britton Decoflex Limited
Registered Number:
323279
Registered Office:
1 Castle Lane, London SW1E 6DN
Date and place of incorporation:
20 January 1937, London
Directors:
C Smith, D Underwood, J Burnham, J Sisson, GConstancio, S
Selinske, B Parish
Secretary:
Hackwood Secretaries Limited
VAT Number:
226 568545
Tax District and Reference Number:
Stockton-on-Sea
P685/D 586
Accounting Reference Date:
31 December
Auditors:
Deloitte & Touche
Authorised Share Capital:
60,500 divided into
60,500 Ordinary Shares of 1 each
Issued and fully paid-up Share Capital:
60,100 Ordinary Shares of 1 each
Shareholders
Beneficial Owners
No. of Shares
Britton Security Packaging Limited
Britton Security Packaging Limited
60,100
(2) Britton Polyian Limited
Registered Number:
654622
Registered Office:
1 Castle Lane, London SW1E 6DN
Date and place of incorporation:
30 March 1960, London
Directors:
D Fisher, C Smith J Burnham, J Sisson, GConstancio, S Selinske, B
Parish
Secretary:
Hackwood Secretaries Limited
VAT Number:
250 419680
Tax District and Reference Number:
Southend 1 P 2620
Accounting Reference Date:
31 December
Auditors:
Deloitte & Touche
Authorised Share Capital:
1,428 divided into
1,428 Ordinary Shares of 1 each
Issued and fully paid-up Share Capital:
All 1,428 Ordinary Shares of 1 each
Shareholders
Beneficial Owners
No. of Shares
Britton Security Packaging Limited
Britton Security Packaging Limited
758
Hubcharm Limited
Hubcharm Limited
670
(3) Hubcharm Limited
Registered Number:
2229420
Registered Office:
1 Castle Lane, London SW1E 6DN
Date and place of incorporation:
11 March 1988, Cardiff
Status:
Has not traded since formation
Directors:
J Burnham, G Constancio, S Selinske, J Sisson, B Parish
Secretary:
Hackwood Secretaries Limited
VAT Number:
N/A
Tax District and Reference Number:
N/A
Accounting Reference Date:
31 December
Auditors:
Deloitte & Touche
Authorised Share Capital:
100 divided into
100 Ordinary Shares of 1 each
Issued and fully paid-up Share Capital:
All 100 Ordinary Shares of 1 each
Shareholders
Beneficial Owners
No. of Shares
Britton Security Packaging Limited
Britton Security Packaging Limited
100
Subsidiaries of Britton Group Plastics Limited
(1) Britton Polymon Limited
Registered Number:
2819109
Registered Office:
1 Castle Lane, London SW1E 6DN
Date and place of incorporation:
18 May 1993, Cardiff
Status:
Has not traded since 1 January 1998
Directors:
J Burnham, G Constancio, S Selinske, C Smith, B Parish, J Sisson
Secretary:
Hackwood Secretaries Limited
VAT Number:
627 1731 46
Tax District and Reference Number:
Northwich, Cheshire
526/T264
Accounting Reference Date:
31 December
Auditors:
Deloitte & Touche
Authorised Share Capital:
10,000 divided into
10,000 Ordinary Shares of 1 each
Issued and fully paid-up Share Capital:
All 10,000 Ordinary Shares of 1 each
Shareholders
Beneficial Owners
No. of Shares
Britton Group Plastics Limited
Britton Group Plastics Limited
10,000
(2) Britton Packbourne Limited
Registered Number:
1681204
Registered Office:
1 Castle Lane, London SW1E 6DN
Date and place of incorporation:
24 November 1982, Cardiff
Directors:
W Morran, C Smith, J Burnham, G Constancio, JSisson, B Parish, S
Selinske
Secretary:
Hackwood Secretaries Limited
VAT Number:
403 8944 48
Tax District and Reference Number:
Cardiff 3 022/85400
Accounting Reference Date:
31 December
Auditors:
Deloitte & Touche
Authorised Share Capital:
US$750 divided into 75,000 ordinary shares of US$0.01 each and
75,000 divided into 75,000 deferred shares of 1 each
Issued and fully paid-up Share Capital:
75,000 ordinary shares of US$0.01 each and 75,000 deferred shares
of 1 each
Shareholders
Beneficial Owners
No. of Shares
Britton Group Plastics Limited
Britton Group Plastics Limited
75,000
ordinary shares
Sambrook (Britton) Limited
Sambrook (Britton) Limited
75,000
deferred shares
(3) Britton Taco Limited
Registered Number:
2233869.
Registered Office:
1 Castle Lane, London SW1E 6DN
Date and place of incorporation:
22 March 1988, Cardiff
Directors:
J Burnham, G Constancio, S Selinske, C Smith, J Sisson, B Parish
Secretary:
Hackwood Secretaries Limited
VAT Number:
627 1731 46
Tax District and Reference Number:
Northwich, Cheshire
526/T264
Accounting Reference Date:
31 December
Auditors:
Deloitte & Touche
Authorised Share Capital:
1,000 divided into 1,000 Ordinary Shares of 1 each
Issued and fully paid-up Share Capital:
200 Ordinary Shares of 1 each
Shareholders
Beneficial Owners
No. of Shares
Britton Group Plastics
Limited
Britton Group Plastics Limited
199
Sambrook (Britton)
Limited
Sambrook (Britton) Limited
1
200
(4) Taco Plastics Limited
Registered Number:
1143506
Registered Office:
1 Castle Lane, London SW1E 6DN
Date and place of incorporation:
5 November 1973, London
Director:
Britton Taco Limited, S Selinske, B Parish, J Sisson
Status:
Has not traded since 1 January 1996
Secretary:
Hackwood Secretaries Limited
VAT Number:
N/A
Tax District and Reference Number:
N/A
Accounting Reference Date:
31 December
Auditors:
Deloitte & Touche
Authorised Share Capital:
300 divided into 300 Ordinary Shares of 1 each
Issued and fully paid-up Share Capital:
All 300 Ordinary Shares of 1 each
Shareholders
Beneficial Owners
No. of Shares
Britton Taco Limited
Britton Taco Limited
299
Sambrook (Britton) Limited
Sambrook (Britton) Limited
1
300
(5) Tacolin Limited
Registered Number:
1247025
Registered Office:
1 Castle Lane, London SW1E 6DN
Date and place of incorporation:
3 March 1976, London
Director:
Britton Taco Limited, S Selinske, B Parish, J Sisson
Status:
Has not traded since 1 January 1996
Secretary:
Hackwood Secretaries Limited
VAT Number:
N/A
Tax District and Reference Number:
N/A
Accounting Reference Date:
31 December
Auditors:
Deloitte & Touche
Authorised Share Capital:
100 divided into 100 Ordinary Shares of 1 each
Issued and fully paid-up Share Capital:
All 100 Ordinary Shares of 1 each
Shareholders
Beneficial Owners
No. of Shares
Britton Taco Limited
Britton Taco Limited
99
Sambrook (Britton) Limited
Sambrook (Britton) Limited
1
100
Schedule 2
Warranties given by the Vendors under Clause 7
1 Authority and Capacity of the Vendors
1.1 The Vendors and the Group Companies are limited
companies duly incorporated and validly existing under the laws
of
England and Wales.
1.2 The Vendors have the legal right and full power and
authority to enter into and perform this Agreement, the Tax Deed,
the Disclosure Letter and the documents referred to in Clause
6.5.2 which when executed will constitute valid and binding
obligations on the Vendors.
1.3 The execution and delivery of, and the performance by
the Vendors of their obligations under, this Agreement, the Tax
Deed, the Disclosure Letter and the documents referred to in
Clause 6.5.2 will not:
1.3.1 result in any breach of any provision of the memorandum
or
articles of association of the Vendors or any Group Company; or
1.3.2 so far as the Vendors are aware result in a breach of
or
give rise to an event of default under or require the consent of
a
person under or give any third party a right to terminate or
modify, or result in the creation of any Encumbrance under any
agreement, licence or other instrument or result in a breach of
any order, judgment or decree of any Court, governmental agency
or
regulatory body to which the Vendors or any of the Group
Companies
are a party or by which the Vendors or any of their respective
assets or Group Companies are bound and which would be material
to
the Group.
1.4 The Vendors are entitled to sell and transfer to the
Purchaser the full legal and beneficial ownership of the Shares
set out against their names in Part 1A of Schedule 1 on the terms
of this Agreement without the consent of any third party. The
Shares comprise the whole of the allotted and issued share
capital
of the Companies, have been properly and validly allotted and
issued and are each fully paid.
1.5 No person has the right (whether exercisable now or in
the future and whether contingent or not) to call for the
allotment, conversion, issue, sale, redemption or transfer of any
share or loan capital or any other security giving rise to a
right
over the capital of any Group Company under any option or other
agreement (including conversion rights and rights of pre-emption)
and there are no Encumbrances on the shares or unissued shares in
the capital of any Group Company or any agreements, arrangements
or obligations to create any Encumbrances nor, as far as the
Vendors are aware, has anyone claimed to be entitled to such a
right or Encumbrance.
2 Accuracy and Adequacy of Information Disclosed to the
Purchaser
The information set out in Schedule 1 is true and accurate in all
material respects. Without prejudice to warranty 8.3, so far as
the Vendors are aware all other information contained in this
Agreement and Annex B of the Disclosure Letter is true, complete
and accurate in all material respects.
3 Changes since the Balance Sheet Date
So far as the Vendors are aware since the Balance Sheet Date:
3.1 there has been no material adverse change in the
financial or trading position of the Group taken as a whole;
3.2 the Group's business has been carried on in the
ordinary course, without any material interruption or alteration
in its nature, scope or manner, and so as to maintain the same as
a going concern;
3.3 no Group Company has entered into any transaction or
assumed or incurred any liabilities (including contingent
liabilities) which in either case is material to that Group
Company or made or incurred or agreed to make or incur any
payment
material to that Group Company which is not provided for in the
Audited Accounts in each case otherwise than in the ordinary
course of carrying on its business.
3.4 No Group Company has declared, paid or made a dividend
or distribution (including, without limitation, a distribution
within the meaning of the Taxes Act) except as provided in the
Audited Accounts.
3.5 No resolution of the shareholders of a Group Company
has been passed.
4 Legal Matters
4.1 Compliance with Laws
As far as the Vendors are aware, each Group Company has conducted
its business in all material respects in accordance with all
applicable legal and administrative requirements.
4.2 Litigation
So far as the Vendors are aware:
4.2.1 no material claim for damages or otherwise has been
made
against any Group Company and is outstanding;
4.2.2 no Group Company and no person for whose acts or
defaults
any Group Company may be vicariously liable is involved whether
as
plaintiff or defendant or other party in any material claim,
legal
action, proceeding, suit, litigation, prosecution, investigation,
enquiry or arbitration (other than as plaintiff in the collection
of debts arising in the ordinary course of its business);
4.2.3 there are no investigations, disciplinary proceedings
or
other facts or circumstances likely to lead to any such claim or
legal action, proceeding, suit, litigation, prosecution,
investigation, enquiry or arbitration involving a Group Company
or
a person for whose acts or defaults any Group Company may be
vicariously liable; and
4.2.4 there is no outstanding judgment order, decree,
arbitral
award or decision of a court, tribunal, arbitrator or government
agency in any jurisdiction against a Group Company or a person
for
whose acts or defaults a Group Company may be vicariously liable.
4.3 Insolvency etc.
4.3.1 no order has been made, petition presented, resolution
passed or meeting convened for the winding up (or other process
whereby the business is terminated and the assets of the company
concerned are distributed amongst the creditors and/or
shareholders or other contributories) of any Group Company;
4.3.2 no petition has been presented or other proceedings
have
been commenced for an administration order to be made (or any
other order to be made by which during the period it is in force,
the affairs, business and assets of the company concerned are
managed by a person appointed for the purpose by a Court,
governmental agency or similar body) in relation to any Group
Company, nor has any such order been made; and
4.3.3 no receiver (including an administrative receiver),
liquidator, trustee, administrator, custodian or similar official
has been appointed in any jurisdiction in respect of the whole or
any part of the business or assets of any Group Company and no
step has been taken for or with a view to the appointment of such
a person.
So far as the Vendors are aware no Group Company is insolvent or
unable to pay its debts within the meaning of s.123 of the
Insolvency Act 1986 and no Group Company has stopped paying its
debts as they fall due.
5 Trading and Contractual Arrangements
5.1 Capital Commitments
So far as the Vendors are aware since the Balance Sheet Date no
Group Company has entered into or proposed any material capital
commitments. For these purposes, a material capital commitment is
one involving capital expenditure of over 50,000.
5.2 Contracts
So far as the Vendors are aware, no Group Company has entered
into
any unusual, long-term or onerous commitments, contracts or
arrangements which are still current including (without
limitation) commitments, contracts or arrangements not wholly on
an arm's length basis or in the ordinary course of business or
which restrict a Group Company's freedom to carry out the whole
or
a material part of its business or use or exploit its assets as
it
decides.
5.3 Guarantees etc.
5.3.1 So far as the Vendors are aware no Group Company has
entered
into or agreed to enter into any guarantee or indemnity,
suretyship to secure an obligation of another person (other than
a
Group Company) and which is still outstanding.
5.3.2 So far as the Vendors are aware there is not
outstanding any
guarantee, indemnity or suretyship given by any person to secure
any obligation of any Group Company.
6 Employees
So far as the Vendors are aware there are no employees employed
by
the Group Companies other than those whose details are set out in
the Disclosure Letter.
7 Taxation Matters
At the date of Completion there are in place no arrangements
whereby any Group Company is or could become liable to pay for,
or
to repay any amount paid to the Group Company for, any surrender
of Group Relief, surrender of Advance Corporation Tax or
surrender
of a tax refund made pursuant to an arrangement entered into on
or
before Completion save as provided under Clauses 5.1 and 5.2 of
the Tax Deed.
8 Assets (other than the Properties)
8.1 Ownership of the Group Companies
8.1.1 Save for the Subsidiary Shares, the Companies, or
(where
specified) a Group Company, are the sole legal beneficial owners
of all the issued or allotted shares of the Subsidiaries listed
in
Part 4 of Schedule 1 free from all Encumbrances and all such
shares are fully paid or credited as fully paid.
8.1.2 Britton Group Limited is entitled to procure the sale
and
transfer of full legal and beneficial title in the Subsidiary
Shares free from all Encumbrances.
8.2 Subsidiaries, Associates and Branches
So far as the Vendors are aware no Group Company:
8.2.1 is the holder or beneficial owner of, or has agreed to
acquire, any share or loan capital of any other company (whether
incorporated in the United Kingdom or elsewhere) other than the
Subsidiaries set out in Part 4 of Schedule 1;
8.2.2 has any branch, division, establishment or operations
outside the jurisdiction in which it is incorporated; or
8.2.3 is a member of (or liable under) a joint venture,
consortium, partnership or other unincorporated association other
than a trade association.
8.3 Insurance
Annex B to the Disclosure Letter contains a true and accurate
summary of the insurance cover of the Group Companies and each of
the policies referred to in or attached to Annex B is valid and
enforceable. Other than as disclosed, no material claim which has
been notified to the Vendors' insurance brokers is outstanding in
respect of any such insurances and so far as the Vendors are
aware
no fact or circumstance exists which may give rise to a material
claim under such insurances.
9 Property
9.1 The Properties
9.1.1 The Properties shown in Parts 1 and 2 of Schedule 3
comprise
all of the premises and land owned, occupied or used in
connection
with the businesses of the Group Companies of which the Vendors
are aware.
9.1.2 The information contained in Schedule 3 is true,
complete
and accurate in all material respects.
9.2 Title
In relation to each Property:
9.2.1 A Group Company is the legal owner of and beneficially
entitled to the whole of the proceeds of sale of the whole of the
Property.
9.2.2 If the title to the Property (or part thereof) is
registered
then the Group Company is registered with Absolute or Good
Leasehold Title and if not registered in whole or in part then
the
title of the Group Company to any freehold Property (or part
thereof) commences with a good root of title at least 15 years
old.
9.2.3 There are available to the Property such services
(including
without limitation electricity, water supplies, sewage and
telecommunication lines) facilities, easements and rights as are
necessary to enable the Property to be used for the purpose for
which the Property is currently used (the Relevant Use) and on
terms which do not entitle any person (other than the relevant
statutory authority) to materially restrict or terminate them.
9.2.4 There are free and uninterrupted rights of access to
and
egress from the Property which are sufficient for the Relevant
Use
and which cannot be terminated (other than by the local or
highway
authority) without providing a reasonably suitable alternative.
9.2.5 There are no covenants, restrictions, burdens,
stipulations,
outgoings or third party rights which prevent or may prevent the
Property from being used for the Relevant Use and so far as the
Vendor is aware the Property is not subject to any unusual
outgoings.
9.2.6 There are no material outstanding actions, disputes,
claims
or demands between the Group Company and any third party
affecting
the Property.
9.2.7 As far as the Vendors are aware there is no person in
possession or occupation of the Property without the authority of
the relevant Group Company.
9.3 Town and Country Planning
In relation to each Property
9.3.1 The Vendors are not aware of any subsisting breach of
planning, fire or building regulations consents arising out of
the
use and occupation of the Property in respect of which any
enforcement action would have a material adverse effect on the
use
of the Property for the Relevant Use.
9.3.2 Any permissions necessary under any applicable town and
country planning legislation for the use of the Property for the
Relevant Use which has been implemented is not temporary or
personal.
9.3.3 There is no outstanding statutory notice relating to
the
Property or any business currently carried on at the Property
which would have a material adverse effect on the Relevant Use.
9.3.4 There is no resolution or proposal for compulsory
acquisition of the whole or a material part of the Property of
which the Group Company has been notified by any applicable
governmental, local or other authority or body.
9.4 Leasehold Property
In relation to each Property (or part thereof) which is held by
the Group Company under a lease (the Lease):
9.4.1 Any consent necessary for the grant of the Lease was
duly
obtained or there are no circumstances in which a landlord has a
right to forfeit the Lease for absence of any such consent.
9.4.2 There is no material subsisting breach which has not
been
waived, nor any material non-observance of any covenant,
condition
or agreement contained in the Lease on the part of the Group
Company which would entitle any person including a landlord or
licensor to forfeit or enter on or take possession of the
Property.
9.4.3 There are no restrictions in the Lease which prevent
the
Property being used for the Relevant Use.
9.4.4 There are no provisions in the Lease which enable the
Landlord to determine the Lease prior to its contractual expiry
date (other than by way of forfeiture).
9.5 Property subject to Occupational Documents
None of the Properties are subject to a lease or tenancy or
licence in favour of any third party.
10 Intellectual Property
10.1 Intellectual Property Rights
10.1.1 As at the date hereof the Intellectual Property listed
in Schedule 5 is:
(a) valid and enforceable and so far as the Vendors are aware
nothing has been done or omitted to be done by the Vendor by
which
it may cease to be valid and enforceable;
(b) legally and beneficially owned by, a Group Company alone,
free from any licence, Encumbrance, restriction on use or
disclosure obligation; and
(c) is not the subject of a claim or opposition from a person
(including, without limitation, an employee of a Group Company)
as
to title, validity, enforceability or entitlement.
10.1.2 The information contained in Schedule 5 is true,
complete and accurate in all material respects.
10.1.3 So far as the Vendors are aware there has been no
infringement by any third party of any Intellectual Property
owned
or exclusively used at the date of this Agreement by the Group
Companies.
10.1.4 So far as the Vendors are aware no party to an
agreement relating to the use by a Group Company of Intellectual
Property owned by another person is, or has at any time been, in
breach of the agreement.
10.1.5 So far as the Vendors are aware as at the date hereof
the Group Companies own or have the right to use all Intellectual
Property or Know-how necessary for each Group Company to operate
its business as it is being operated at the date of this
Agreement.
10.1.6 The Disclosure Letter contains complete copies, or all
material details, of the terms of any, subsisting licensing
agreements or arrangements (other than non-bespoke software
licences) under which any of the Group Companies has use of
Intellectual Property. So far as the Vendor is aware no Group
Company has done or omitted to do anything which might constitute
a material breach of, or permit termination of any such licence
agreements or arrangements.
10.1.7 So far as the Vendors are aware the activities,
processes, methods, products or services used, manufactured or
dealt in or supplied at the date of this Agreement by a Group
Company do not at the date of this Agreement, nor did they at the
time used, manufactured, dealt in or supplied, infringe the
Intellectual Property (including, without limitation, moral
rights) of another person.
10.1.8 So far as the Vendor is aware no Group Company has
granted to any other person any licence or other right in
relation
to the Intellectual Property Rights owned or used by such Group
Company.
10.2 Computer Records
So far as the Vendor is aware none of the records, systems, data
or information of a Group Company is recorded, stored,
maintained,
operated or otherwise wholly or partly dependent on or held or
accessible by any means (including, without limitation, an
electronic, mechanical or photographic process computerised or
not) which are not under the ownership and control of the Group
Company.
10.3 Data Protection
So far as the Vendor is aware, since the Acquisition Date, each
Group Company has maintained in force any registration under the
Data Protection Act 1984 necessary or appropriate in relation to
its business including, without limitation, each registration
relating to the obtaining, holding, processing, transfer and
disclosure of personal data effected by the Group Company
(including, without limitation, to the Purchaser).
10.4 Know How
So far as the Vendor is aware no Group Company has at any time
(save properly in the ordinary course of its business or on
suitable written terms as to confidentiality) disclosed or agreed
to disclose, to any person other than the Purchaser, any Know-
how.
So far as the Vendor is aware, no third party is in breach of any
such terms.
11 Pensions and other benefits
11.1 Definitions
For the purposes of paragraphs 11.2 to 11.6:
Approved means approved by the Inland Revenue for the purposes of
Chapter 1 of Part XIV of the Taxes Act and a reference to
Approval
is to be construed accordingly;
Death in Service Scheme means each of the death in service
schemes
listed in Part 2 of Schedule 4;
Defined Benefit Scheme means a scheme under which the amount of
some or all of the benefits payable to or in respect of a member
of the scheme is calculated in accordance with a formula which
takes account of the service of the member to retirement, death
or
withdrawal and the remuneration of the member averaged over his
service at or close to his retirement, death or withdrawal;
Defined Contribution Scheme means a scheme under which the amount
of the benefits, or the amount of the benefits other than some or
all of the benefits payable on death before becoming a pensioner,
payable to or in respect of a member of the scheme is calculated
by reference to the contributions made to the scheme by and in
respect of the member;
Disclosed Personal Pension Scheme means each of the Personal
Pension Schemes listed in Part 5 of Schedule 4.
Disclosed Scheme means each of the Group Scheme, the Occupational
Pension Schemes, the PHI Schemes, the Death in Service Schemes
and
the Medical Schemes.
Employee means a director or employee or former director or
employee of a Group Company;
Group Scheme means the Britton Group plc Pension Scheme
administered by Clerical Medical;
Medical Scheme means each of the medical insurance schemes listed
in Part 4 of Schedule 4;
Norwich Union Scheme means the Packbourne Limited Pension Scheme
established by a deed dated 2 May 1988;
Occupational Pension Schemes means each of the schemes listed in
Part 1 of Schedule 4;
Personal Pension Scheme means a personal pension scheme approved
or provisionally approved for the purposes of Chapter IV of Part
XIV of the Taxes Act;
PHI Scheme means each of the permanent health insurance schemes
listed in Part 3 of Schedule 4.
11.2 Schemes - general
11.2.1 Other than the Disclosed Scheme and any Personal
Pension Scheme there is not in operation as at the date of this
Agreement, and there has not been in operation at any time prior
to the date of this Agreement, and no proposal has been announced
to enter into or establish, any agreement, arrangement, custom or
practice (whether legally enforceable or not and Approved or not)
for the payment of, or payment of a contribution towards, a
pension, allowance, lump sum or other similar benefit on
retirement, death, termination of employment (whether voluntary
or
not) or during periods of sickness or disablement (whether during
service or after retirement), for the benefit of an Employee or
an
Employee's dependants in respect of which any Group Company has
or
may have a liability.
11.2.2 So far as the Vendors are aware the Disclosed Personal
Pension Scheme and the Group Scheme are the only Personal Pension
Schemes to which any Group Company has or may have a liability to
contribute.
11.3 Schemes - disclosed
11.3.1 Details of each Disclosed Scheme have been given to the
Purchaser sufficient to establish each Group Company's liability
to contribute to each Disclosed Scheme and each member's
entitlement to benefits to or in respect of him under the
Disclosed Scheme.
11.3.2 Details of the contributions payable by each Group
Company to the Disclosed Personal Pension Schemes have been given
to the Purchaser.
11.3.3 Each benefit (or lump sum benefits only in respect of
the Norwich Union Scheme) (except a refund of contributions)
payable under each Disclosed Scheme on the death of a member of
the Disclosed Scheme or during periods of sickness or disability
of the member is at the date of this Agreement fully insured
under
a policy effected with an insurance company. Each member has been
covered for that insurance by that insurance company at its usual
rates and on its usual terms for persons in good health and all
insurance premiums payable have been paid.
11.3.4 As far the Vendor is aware there has been no breach of
the trusts of a Disclosed Scheme. There is no civil, criminal,
arbitration, administrative or other proceeding or dispute
concerning a Disclosed Scheme by or against the trustees or
administrator of a Disclosed Scheme, the Vendor, a Group Company
or another employer participating in the Disclosed Scheme, and as
far as the Vendor is aware none is pending or threatened. There
has been no correspondence with the Occupational Pensions
Regulatory Authority (OPRA) on any matter which may give rise to
section 3 or section 10 of the Pensions Act 1995 applying to the
trustees or administrator of the Disclosed Scheme or an employer
participating in it. The Vendor is not aware of a matter which
might give rise to a proceeding or dispute of that type or an
investigation by OPRA.
11.3.5 The Norwich Union Scheme and the Death in Service
Schemes are the only Defined Benefit Schemes operated by a Group
Company or to which a Group Company has or may have any liability
to contribute. The Norwich Union Scheme is in the process of
being
wound up and no Group Company has or will have any liability to
make any payments whatsoever to or in respect of the scheme.
11.3.6 Each of the Occupational Schemes (save for the Norwich
Union Scheme) and the Group Scheme is a Defined Contribution
Scheme and no assurance, promise or guarantee (oral or written)
has been made or given to a member of such scheme of any
particular level or amount of benefits (other than insured lump
sum death in service benefits referred to in paragraph 11.3.3) to
be provided for or in respect of him under such scheme on
retirement, death or leaving employment.
11.3.7 There is no amount which is or may be treated by
section 144 of the Pension Schemes Act 1993 or section 75 of the
Pensions Act 1995 as a debt due from a Group Company to the
trustees of any scheme in which a Group Company has participated
at any time prior to Completion.
11.3.8 The Moore UK Pension Plan in which Britton Decoflex
Limited used to participate had not commenced winding-up and had
not ceased to admit new members before, at, or immediately after
the date on which Britton Decoflex Limited ceased to participate
in that scheme.
11.4 Funding of Disclosed Schemes - contributions
11.4.1 No amount due in respect of a Disclosed Scheme by a
Group Company is unpaid. All contributions due from members of a
Disclosed Scheme have been paid to the trustees or managers of
the
Disclosed Schemes within the prescribed period.
11.5 Disclosed Schemes - compliance
11.5.1 Each Occupational Scheme and Death in Service Scheme is
Approved and the Vendor is not aware of a matter which might give
the Inland Revenue reason to withdraw Approval. Each Group
Company
which participates in an Occupational Pension Scheme or a Death
in
Service Scheme has had its participation approved by the Inland
Revenue.
11.5.2 Each Disclosed Scheme has been designed to comply with,
and as far as the Vendor is aware, has been administered in
accordance with, all applicable legal and administrative
requirements and the trusts, powers and provisions of the
Disclosed Scheme. Each Group Company has complied with Article
119
of the Treaty of Rome and the Pensions Act 1995 as each applies
to
the eligibility of an Employee to join, contributions made to and
the provision of a benefit referred to in paragraph 11.2.1 under
each Disclosed Scheme.
11.6 Disclosed Personal Pension Schemes
11.6.1 The Group Scheme is a collection of arrangements made
under the provisions of a Personal Pension Scheme. No Group
Company or the trustees or managers of the Group Scheme have
carried on or purported to carry on any investment business or
have issued any investment advertisement for the purposes of
Financial Services Act 1986 in connection with the Group Scheme.
11.6.2 As far as the Vendors are aware, no assurance, promise
or guarantee (oral or written) has been made or given by or on
behalf of the Vendors or a Group Company to a member of a
Personal
Pension Scheme of a particular level or amount of benefits to be
provided for or in respect of him under the Personal Pension
Scheme on retirement, death or leaving employment.
12 Accounts
12.1 The Audited Accounts give a true and fair view of the
state of affairs of each Group Company as at the Balance Sheet
Date and of the profits and losses of each Group Company for the
financial year ended on the Balance Sheet Date.
12.2 The Audited Accounts have been properly prepared in
accordance with the Companies Act 1985 and properly audited.
12.3 So far as the Vendors are aware the Management Accounts
have been prepared on a basis consistent in all material respects
with those prepared for the corresponding periods in the
financial
year ended on the Balance Sheet Date.
13 Assets
13.1 So far as the Vendors are aware each material asset
included in the Audited Accounts or acquired by a Group Company
since the Balance Sheet Date (other than stock disposed of in the
usual course of business) and each material asset used by each
Group Company is:
13.1.1 legally and beneficially owned by the Group Company
free from any Encumbrance; and
13.1.2 where capable of possession, in the possession or under
the control of the Group Company.
14 Liabilities
14.1 Except as disclosed in the Audited Accounts or in the
Disclosure Letter, as far as the Vendors are aware no Group
Company has outstanding or agreed to create or incur loan
capital,
borrowing or indebtedness in the nature of borrowing.
14.2 As far as the Vendors are aware, no event has occurred
or been alleged which:
14.2.1 constitutes an event of default by a Group Company, or
otherwise gives rise to an obligation to repay, under an
agreement
relating to borrowing or indebtedness in the nature of borrowing
(or will do so with the giving of notice or lapse of time or
both)
by a Group Company; or
14.2.2 will lead to an Encumbrance constituted or created in
connection with borrowing or indebtedness in the nature of
borrowing, a guarantee, an indemnity or other obligation of a
Group Company becoming enforceable (or will do so with the giving
of notice or lapse of time or both).
Schedule 3
Particulars of the Properties
Part 1
Leasehold Properties
Leasehold
Name of Group Company
to which the Property is leased
Description of Property and details of lease
Britton Gelplas Limited
Unit 3, Letchworth Garden Centre, Pixmore Avenue, Letchworth,
Herts as demised by a lease, dated 4 December 1987 made between
(1) CIN Properties Limited and (2) Courts (Furnishers) plc.
Unit 4, Letchworth Gate Centre, Pixmore Avenue, Letchworth,
Hertfordshire as demised by a lease dated 24 December 1991 and
made between (1) CIN Properties Limited and (2) Gelpack
Industrial
Limited.
Unit 5, Letchworth Gate Centre, Pixmore Avenue, Letchworth,
Hertfordshire as demised by a lease dated 20 March 1989 and made
between (1) CIN Properties Limited and (2) Gelpack Industrial
Limited and registered at H M Land Registry under title number HD
261658.
Unit 10, Letchworth Gate Centre, Pixmore Avenue, Letchworth,
Hertfordshire as demised by a lease dated 22 December 1989 and
made between (1) Protea Estates Limited and (2) Gelpack
Industrial
Limited.
Unit 11, Letchworth Gate Centre, Protea Way, Letchworth,
Hertfordshire as demised by a lease and made between (1) Webb
Investments Limited and (2) Gelplas Industrial Limited.
Unit 12, Protea Business park, Letchworth, Hertfordshire as
demised by a lease dated 6 October 1995 and made between (1)
Howard Cottage Society Limited, (2) Gelplas Industrial Limited
and
(3) Britton Group plc.
Unit 17, Letchworth Gate Centre, Protea Way, Letchworth,
Hertfordshire pursuant to a Tenancy at Will dated 24 March 1997
and made between (1) Webb Investments Limited and (2) Mr. W.A.G.
Surbey of Britton Gelplas.
Land at Dunhams Lane, Letchworth, Hertfordshire pursuant to a
lease dated 28 November 1983 between (1) J.M. Dent & Sons
(Holdings) Limited, (2) Anchorvale Limited and (3) Hambro Life
Assurance PLC.
Electricity sub-station held under a lease dated 16 May 1995
between (1) Automobile Association Developments Ltd. and (2)
Gelplas Industrial Limited and (3) Britton Group plc.
Britton Packbourne Limited
Unit 10, Ponders End Industrial Estate, Enfield pursuant to a
lease dated 3 December 1996 between (1) Coal Pensions Properties
Limited and (2) D.G. Metal Products Limited.
Unit 11 Ponders End Industrial Estate, Duck Lees Land, Ponders
End, Enfield, Middlesex EN3 7UP comprised in a lease dated 7 June
1972 made between First National Industrial Properties Limited
(1)
and Diesel Electrics (T&W) Limited (2) and registered at HM Land
Registry under title number NGL223339.
Britton Security Packaging Limited
Factory premises being Unit 6 on the Crompton Road Industrial
Estate at Ilkeston, Derbyshire demised by a lease dated 23 May
1997 between (1) The Derbyshire County Council and (2) Britton
Security Packaging Limited.
Ground floor premises at Crompton Road, Ilkeston demised by a
lease dated 22 March 1996 between (1) Sidlaw Flexible Packaging
Limited and (2) NMC Security Products Limited.
First Floor Cheltonian House, Esher demised by a lease dated 15
September 1997 between (1) Esher Investments Limited and (2)
Britton Security Packaging Limited.
Premises in Digby Street, Ilkeston, Derbyshire demised by a lease
dated 12th November 1996 made between (1) D Chamber and others
and
(2) Britton Security Packaging Limited.
Britton Decoflex Limited
BT2/18 Skerne Road, Hartlepool Industrial Estate, Hartlepool
demised by a lease dated 17 November 1978 made between (1) The
English Industrial Estates Corporation and (2) Decoflex Limited
and registered at HM Land Registry under Title Number CE40007.
BT2/40 on the Oakesway Industrial Estate, Hartlepool demised by a
lease dated 15 January 1992 made between (1) the English
Industrial Estates Corporation and (2) Decoflex Limited and
registered at HM Land Registry under Title Number CE141241.
Britton Polyian Limited
Unit 10B, Temple Farm Industrial Estate, Southend on Sea, Essex
demised by a lease dated 23 June 1977 made between (1) Star Lane
Industrial Sites Limited and (2) Boots the Chemists Limited and
registered at HM Land Registry under title number EX194787.
Britton Precision Limited
BT 617/1 and BT 617/2 on the Fairfield Industrial Estate at
Louth,
Lincolnshire demised by a Lease dated 23 December 1991 between M.
Kitching, V. Kitching, R. Storey, Scottish Amicable Trustees
Limited (1) and Precision Packaging Limited (2) and a Lease dated
3 December 1982 between the English Industrial Estates
Corporation
(1) and Precision Packaging Limited (2).
Part 2
Freehold Properties
Freehold
Name of Group Company
owning the Property
Description of Property
Britton Group Plastics Limited
Land at Road 1 Winsford Industrial Estate, Cheshire registered
under Title Number CH384976 and Title Number CH229158
Britton Security Packaging Limited
Factory premises on the north east side of Newmarket and north
west side of Stewton Lane, Louth. Title Number LL129365.
Britton Precision Limited
Premises on the south west side of Tattershall Way, Louth
registered at HM Land Registry under Title Number LL66768 and
premises which were conveyed by a Conveyance dated 29 August 1985
between The English Industrial Estates Corporation (1) and
Precision Packaging Limited (2) and further premises conveyed by
a
Conveyance dated 15 September 1987 between the same parties.
Schedule 4
Pensions
(Part 1) Occupational Pension Schemes (together with policy
numbers for purposes of identification)
Britton Group plc Contracted-In Money Purchase Scheme (Clerical
Medical 62531)
Skandia Life Executive Pension Plan (EP2 112190974, EP20122
36900)
Eagle Star Executive Pension Plan (293 6700)
Standard Life Executive Pension Plan (H32095, H43851)
Scottish Equitable Executive Pension Plan (3964392)
Packbourne Limited Pension Scheme
(Part 2) Death in Service Schemes (together with policy numbers
for purposes of identification)
Britton Group plc Group Life Assurance Scheme (Swiss Life
95/604/0050 and 97/504/0507)
(Part 3) PHI Schemes (together with policy numbers for purposes
of
identification)
Norwich Union Group PHI (800348)
Zurich Life Group PHI (00612002/3/P)
Guardian Group PHI (PF26145)
(Part 4) Medical Schemes (together with policy numbers for
purposes of identification)
BUPA Health Selections (20/1995 7 05 006 and 20/25 2929 40012)
Clinicare Group Cover (SPG 000 389)
Cigna Group Cover (015264)
(Part 5) Disclosed Personal Pension Schemes
Arrangements for W Marmion, P West, E Betts, P Bishop, P Bruton
(3
arrangements with NPI) and S Rowe (with Standard Life)
Schedule 5 - Registered Intellectual Property
A. Registered Patents (including applications for patents)
Proprietor
Patent No.
Date of Filing/Status
Invention
Britton Security Packaging Limited
Britton Security Products
GB9721302
07.10.97
Application
Security bag/Double Document Pocket
Britton Security Products
GB9716585
08.05.97
Application
Tamper evident closure
Britton Security Packaging Limited
EP90914230
18.09.90
Tamper Indicating Package
Britton Security Packaging Limited
GB90914230
18.09.90
Tamper Indicating Package
Britton Security Packaging Limited
GB8921108
18.09.90
Application
Verpackung und Siegel mit Beschaedigungsanzeige
Britton Security Packaging Ltd
DE69029272
18.09.90
Application
Verpackung und siegel mit Beschaedigungsanzeige
Britton Security Packaging Ltd
ES2096593
18.09.90
Application
Envase indicativo de manipulacion indebida
Britton Security Packaging Ltd
AT145613
18.09.90
Application
Verpackung und siegel mit Beschaedigungsanzeige
Decoflex Limited
Decoflex Limited
EP515086
13.05.92
No opposition filed
Security bags and sealing means
Decoflex Limited
GB8926465
23.11.89
Bags
Decoflex Limited
EP430558
21.11.90
No opposition filed
Bulk coin bag, top fill
Decoflex Limited
EP220038
13.10.86
Application
Improvements in or relating to bags
Decoflex Limited
GB2132585
17.10.83
Granted
Security Bag
Decoflex Limited
GB11029888
17.10.85
Application
Bag
Decoflex Limited
GB8410441
24.04.84
Application
Bags
Decoflex Limited
GB2138396
24.04.84
Granted
Bags with tamper indicators
Decoflex Limited
GB2131585
19.10.82
Application
Sheet Bag
Decoflex Limited
GB0105581
09.08.83
Soluble Printing
Decoflex Limited
GB515086
13.05.92
Walrus security
Decoflex Limited
GB2081215
05.08.81
Granted
Blood bag
Decoflex Limited
GB2009098
10.11.78
Granted
Bags
Decoflex LImited
GB1449783
05.02.75
Application
Bags for containing bank notes
Decoflex Limited
AT124362
13.05.92
Application
Sicherheitsbeutel Und Dichtungsmittel
Decoflex Limited
AU9217066
21.05.92
Security bags and sealing means
Decoflex Limited
AU645201
21.05.92
Application
Security bags and sealing means
Decoflex Limited
AU645201
13.05.92
Application
Sicherheitsbeutel Und Dichtungsmittel
Decoflex Limited
ES2076685
13.05.92
Application
Bolsas de Seguridad y Medios de Cierre
Decoflex Limited
GB9111079
22.05.91
Application
Tamper-evident security bag
Decoflex Limited
GB2255962
22.05.91
Application
Tamper-evident sealing means for security bags
Decoflex Limited
MX9202340
19.05.92
Application
Bolsas de Seguridad y Montajes de Sello
Decoflex Limited
GB9025357
21.11.90
Application
Reinforcing handle
Decoflex Limited
GB2250011
21.22.90
Application
Bag with reinforced handle
Decoflex Limited
GB2238292
23.11.89
Application
Security bags
Decoflex Limited
AT101377
21.22.90
Application
Von oben Befuellbarer Muenzensack
Decoflex Limited
DE69006581
21.11.90
Application
Von oben Befuellbarer Muenzensack
Decoflex Limited
EP430558
21.11.90
Application
Bulk coin bag, top fill
Decoflex Limited
GB8926465
23.11.89
Application
Bags
Decoflex Limited
GB8926464
23.11.89
Application
Bags
Decoflex Limited
MY8800144
31.12.88
Application
Improvements in or relating to bags
Decoflex Limited
NO8604467
07.11.86
Application
Pose
Decoflex Limited
DK8605285
05.11.1996
Application
Pose
Decoflex Limited
FI8604486
04.11.1996
Application
Paose
Decoflex Limited
AU8663981
16.10.86
Application
Two Compartment bag open at both ends
Decoflex Limited
JP63003806
17.10.86
Application
- -
Decoflex Limited
ZA8607840
16.10.86
Application
Bags
Decoflex Limited
GB8327729
17.10.83
Application
Bags
Decoflex Limited
IE8447579
09.11.78
Granted
Improvements in or relating to bags
Decoflex Limited
IE7839479
31.01.74
Granted
Improvements in or relating to containers for containing bank
notes
Decoflex Limited
IE7737374
06.03.73
Granted
Improvements in or relating to bags
Decoflex Limited
FR2317178
09.07.76
Application
Sac muni de moyens de securite empechant la spoliation de son
contenu
Decoflex Limited
ZA7600639
04.02.76
Application
Perforated micro-print bag
Decoflex Limited
AU7577896
05.02.75
Application
Bags for containing bank notes
Decoflex Limited
US3960314
22.02.74
Granted
Coin bags with flip top closures
Decoflex Limited
DK7400652
06.02.74
Granted
- -
Decoflex Limited
DK137982
06.02.74
Granted
Pose af formstoffolie med garantiforsegling
Decoflex Limited
FR2261194
14.02.74
Application
- -
Decoflex Limited
US3933304
22.02.74
Granted
Bags for containing bank notes
Decoflex Limited
AU7361325
12.01.73
Application
Bags
Decoflex Limited
ZA7303346
17.05.73
Application
Improvements in or relating to bags for containing bank notes
Decoflex Limited
DE2313909
20.03.73
Period for request of examination expired
Beutel, Z.B. fuer muenzen
Decoflex Limited
DK131335
16.03.73
Lapsed
- -
Decoflex Limited
FR2176793
16.03.73
Lapsed
- -
Decoflex Limited
IE7737375
06.03.73
Granted
Improvements in or relating to bags
Decoflex Limited
JP49014269
22.03.73
Granted
- -
Decoflex Limited
LU67243
20.03.73
Application
- -
Decoflex Limited
DE69203155
13.05.92
Application
Sicherheitsbeutel und Dichtungsmittel
Decoflex Limited
ES2076685
13.05.92
Granted
Bolsas de Seguridad y Medios de Cierre
Decoflex Limited
GB8525567
17.10.85
Application
Bags
Decoflex Limited
ZA7301594
07.03.73
Application
Improvements in or relating to bags
Britton Polyian Limited
Polyian Limited
GB9700998
17.01.97
Application
Plastics mailing envelope
Polyian Limited
GB9413770
08.07.94
Application
Mailing pouch
Polyian Limited
GB2291039
08.07.94
Application
Trackable mailing pouch
Polyian Limited
PCT/GB/98/00066
16.01.98
Application
Plastics mailing envelope
Polyian Limited (Interpoly Limited)
GB8921108
18.09.89
Application
Tamper indicating package
Polyian Limited (Interpoly Limited)
GB8821759
16.09.88
Application
Security envelope]
NMC Security Products Limited
NMC Security Products Limited
EP628007
25.02.93
Application
Tamper indicating package
NMC Security Products Limited
(NMC Flexible Packaging Limited)
GB9203931
25.02.92
Application
Tamper indicating package
NMC Security Products Limited
GB9416770
25.02.93
Granted
Tamper indicating package
NMC Security Products Limited
GB2279936
25.02.93
Granted
Tamper indicating package
NMC Security Products Limited
WO93116933
25.02.93
Request for preliminary examination filed
Tamper indicating package
NMC Security Products Limited
WO90/01432
18.09.90
Tamper indicating package
NMC Security Products Limited
WO93/00385
25.02.93
Tamper indicating package
NMC Security Products Limited
EP93905474
25.02.93
Tamper indicating package
NMC Security Products Limited
GB9123646
07.11.91
Application
Fluid container
NMC Security Products Limited
EP493465
No opposition filed during term of opposition
Tamper indicating package and seal
NMC Security Products Limited
WO9104199
18.09.90
International application and international search report
published
Tamper indicating packages
NMC Security Products Limited
EP373748
15.09.89
No opposition filed
Security envelope
NMC Security Products Limited
EP493465
18.09.90
Application
No opposition filed
Tamper indicating package and seal
NMC Security Products Limited
AU9336387
25.02.93
Application
Tamper indicating packages
NMC Security Products Limited
AU9064156
18.09.90
Application
Tamper indicating package
NMC Security Products Limited
AU646815
18.09.90
Application
Tamper indicating package
NMC Security Products Limited
ES2037429
15.09.89
Granted
Contenedor de seguridad
B. REGISTERED TRADEMARKS (including applications for trademarks)
1. Britton Security Packaging Limited
Trade Mark
Class(es)
Registration Number
Application/Registration Date
Country
FRAUDETER
16
1504826
29 Jun 1992
UK
PRIMATHENE
16
2031688
25 Aug 1995
UK
INTERVOID
16
1401023
04 Sep 1989
UK
INTERVOID
16
18279-C/90
02 Mar 1990
IT
INTERVOID
16
974/90
21 Feb 1990
IE
INTERVOID
16
1553054
2 Mar 1990
ES
INTERVOID
16
AM882/90
20 Feb 1990
AT
INTERVOID
16
74/035452
23 Feb 1990
US
INTERVOID
16
651724
26 Feb 1990
CA
INTERVOID
16
741930
22 Feb 1990
BL
INTERVOID
16
190542
23 Feb 1990
FR
INTERVOID
16
J24882/16W
03 Mar 1990
DE
INTERVOID
16/18
1473/1990
21 Feb 1990
CH
INTERVOID
16
90-2105
02 Mar 1990
SE
INTERVOID
16
1735/90
02 Mar 1990
DK
INTERVOID
16
87836
21 Jun 1993
IL
FRAUDETER
16
6256/92
30 Nov 1992
IE
FRAUDETER
- -
718087
03 Dec 1992
CA
FRAUDETER
16
1739704
29 Dec 1992
ES
FRAUDETER
16
N25364/16W
05 Dec 1992
DE
FRAUDETER
16
AM5753/92
01 Dec 1992
AT
FRAUDETER
16
789637
02 Dec 1992
BL
FRAUDETER
16
MI92C008490
10 Dec 1992
IT
FRAUDETER
16/18
8845/1992
11 Dec 1992
CH
FRAUDETER
16
92-11251
22 Dec 1992
SE
FRAUDETER
16
8457/92
02 Dec 1992
DK
FRAUDETER
16/18
92/447737
28 Dec 1993
FR
PRIMATHENE
16
5921/95
28 Aug 1995
IE
POLYLOPE
16
1068498
20 Sep 1976
UK
P Device
16
1091220
17 Feb 1978
UK
POLYPRINT
16
1209226
16 Dec 1983
UK
POLYTUF
16
1209924
30 Dec 1983
UK
POLYBUBBLE
16
1262714
17 Mar 1986
UK
POLYSAFE
16
1356393
30 Aug 1988
UK
POLYSTRONG
16
1505467
03 Jul 1992
UK
POLYLITE
16
1505468
03 Jul 1992
UK
2. Britton Taco Limited
Trade Mark
Class(es)
Registration Number
Application/Registration Date
Country
TACOLIN
17
1271860
22 July 1986
UK
3. Britton Decoflex Limited
Trade Mark
Class(es)
Registration Number
Application/Registration Date
Country
COINTANER
16
B 876,547
5 March 1965
UK
SECURIPAK
16
B 893,990
2 May 1966
UK
MERLIN
16
945, 965
23 July 1969
UK
DECOFLEX
16
977472
8 July 1971
UK
SECURISEAL
16
B 1218181
5 May 1984
UK
Decoflex
16
1280524
29 Sept 1986
UK
Walrus
16
1464493
18 May 1991
UK
WALRUS
16
1464497
18 May 1991
UK
DECOFLEX
17
977, 473
8 July 1971
UK
DECOFLEX (CTM)
16
66, 084
1 April 1996
UK
4. Britton Gelplas
Trade Mark
Class(es)
Registration Number
Application/Registration Date
Country
ULTRAPLAS
16
2152112
27 November 1997
UK
ULTRAPLAS
22
2152,112
27 November 1997
UK
Schedule 6
Agreed Form of Transfer of the Excluded Property
Ref: RCPW/CEYH
Ref:
As previously disclosed, on January 14, 1998, ACX completed the
cash offer of 1.40 pounds sterling per common share and 1.00
pounds sterling per convertible share, or approximately $335.0
million, to purchase the entire issued share capital of Britton.
With the assumption of debt and transaction costs, the total
estimated purchase price is approximately $420.0 million. The
offer was funded with cash on hand, $92.5 million of assumed
debt, and $276.0 million of short-term borrowings a credit
facility.
