ppc-06272021exhibit101






Legal-63238732  172878-0002        CERTAIN INFORMATION IDENTIFIED WITH [***] HAS BEEN EXCLUDED FROM THIS EXHIBIT  BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) IS THE TYPE THAT THE REGISTRANT TREATS  AS PRIVATE OR CONFIDENTIAL.   Dated June 2021      KERRY GROUP PLC  and  PILGRIM’S PRIDE CORPORATION  and  ONIX INVESTMENTS UK LIMITED  and  ARKOSE INVESTMENTS ULC                    AGREEMENT FOR THE SALE AND PURCHASE OF   THE ENTIRE ISSUED SHARE CAPITAL OF THE TARGET COMPANIES      





 






Legal-63238732   172878-0002       1       CFD-#3 980496-v1    Contents  Clause  Page  1 Definitions and interpretation .........................................................................................................3  2 Agreement to sell the Sale Shares .................................................................................................3  3 Conditions precedent .....................................................................................................................4  4 Consideration .................................................................................................................................7  5 Hive Down ................................................................................................................................... 10  6 Authorisations .............................................................................................................................. 12  7 Business Receivables, Business Payables and invoicing .......................................................... 13  8 Apportionments ........................................................................................................................... 13  9 Inter-Company Balances ............................................................................................................. 14  10 Contracts ..................................................................................................................................... 14  11 Related Party Agreements .......................................................................................................... 17  12 Pensions ...................................................................................................................................... 17  13 Employment ................................................................................................................................ 19  14 Completion .................................................................................................................................. 20  15 The Warranties ............................................................................................................................ 22  16 Limitations of liability ................................................................................................................... 24  17 Restrictive covenants .................................................................................................................. 25  18 Insurance ..................................................................................................................................... 27  19 Post-Completion matters ............................................................................................................. 28  20 Environmental indemnity ............................................................................................................. 33  21 Property Undertaking .................................................................................................................. 38  22 Entire Agreement ........................................................................................................................ 39  23 Effect of Completion .................................................................................................................... 41  24 Remedies and waivers ................................................................................................................ 41  25 Release ....................................................................................................................................... 41  26 Severance ................................................................................................................................... 42  27 Set off .......................................................................................................................................... 42  28 Withholdings and gross-up .......................................................................................................... 42  29 Payments and interest ................................................................................................................. 43  30 Alterations ................................................................................................................................... 44  31 Counterparts ................................................................................................................................ 44  32 Costs, Transfer Taxes and sales taxes ....................................................................................... 44  33 Agreement binding ...................................................................................................................... 45  34 Agency structure ......................................................................................................................... 45  35 Assignment .................................................................................................................................. 45  





 






Legal-63238732   172878-0002       2       CFD-#3 980496-v1    36 Rights of third parties .................................................................................................................. 46  37 Announcements and confidentiality ............................................................................................ 46  38 Notices......................................................................................................................................... 48  39 Governing law and jurisdiction .................................................................................................... 50  40 Service of process ....................................................................................................................... 51  Schedule 1 Designated Sellers, Designated Buyers and Apportionment of Headline Price .......... Error!  Bookmark not defined.  Schedule 2 Target Companies .............................................................................................................. 53  Schedule 3 Properties ........................................................................................................................... 58  Schedule 4 Seller Warranties ................................................................................................................ 60  Schedule 5 Buyer Warranties ................................................................................................................ 83  Schedule 6 Limitations on the liability of the Seller ............................................................................... 85  Schedule 7 Pre-Completion Conduct and Undertakings ....................................................................... 94  Schedule 8 Completion ......................................................................................................................... 99  Schedule 9 Completion Statements .................................................................................................... 102  Schedule 10 Agency provisions .......................................................................................................... 114  Schedule 11 Definitions and Interpretation ......................................................................................... 119    Agreed form documents  Tax Covenant  Transitional Services Agreement  Van Sales Distribution Agreement  Data Room Index  Letter of resignation for directors and secretaries  Supplemental Transaction Agency Agreement  Meat Free Substitute Technology Licence   Galtee Licence  Everwell Licence  Raw Material Supply Agreement         





 






Legal-63238732   172878-0002       3       CFD-#3 980496-v1    THIS AGREEMENT is dated          June 2021 and is made between:  (1) KERRY GROUP PLC, a public limited company incorporated in the Republic of Ireland with  company registration number 111471, whose registered office is at Prince’s Street, Tralee, Co.  Kerry, V92 EH11, Ireland, acting as principal and acting as agent for each Designated Seller (the  Seller);   (2) PILGIRM’S PRIDE CORPORATION, a company incorporated in Delaware, United States of  America, whose registered office is at 1770 Promontory Circle, Greeley, Colorado 80634-9038,  United States of America, acting as principal and acting as agent for each Designated Buyer (the  Buyer);  (3) ONIX INVESTMENTS UK LIMITED, a company incorporated in England and Wales with  company registration number 10934285, whose registered office is at 2nd Floor Building, 1  Imperial Place, Maxwell Road, Borehamwood, Hertfordshire, WD6 1JN, United Kingdom (the UK  Designated Buyer); and  (4) ARKOSE INVESTMENTS ULC, a company incorporated in the Republic of Ireland with company  registration number 612127, whose registered address is at 29 Earlsfort Terrace, Dublin 2, D02  AY28, Ireland (the Irish Designated Buyer),   each a Party and together the Parties.  NOW IT IS HEREBY AGREED as follows:  1 Definitions and interpretation  In addition to terms defined elsewhere in this Agreement, the definitions and other provisions in  Schedule 11 apply, unless the context requires otherwise.  2 Agreement to sell the Sale Shares  2.1 Subject to the Conditions being satisfied (or, in respect of the Condition in clause 3.1(a), satisfied  or waived in accordance with the terms of this Agreement), each Designated Seller shall sell, and  each Designated Buyer shall buy, the particular Set of Sale Shares for which it is identified as the  respective Designated Seller or Designated Buyer in Schedule 1 (Designated Sellers, Designated  Buyers and Apportionment of Purchase Price), in each case with full title guarantee and free from  all Encumbrances.  2.2 Title to, beneficial ownership of, and any risk attaching to, the Sale Shares shall pass on  Completion, together with all associated rights and benefits attaching or accruing to them on or  





 






Legal-63238732   172878-0002       4       CFD-#3 980496-v1    after Completion except as otherwise provided in this Agreement and the other Transaction  Documents.  2.3 Each of the Seller and each Designated Seller irrevocably and unconditionally waives, and the  Seller shall procure that any other relevant member of the Seller’s Group shall irrevocably and  unconditionally waive, any rights of pre-emption conferred on it by the articles of association of  the Target Companies or otherwise over the particular Set of Sale Shares for which it is identified  as the respective Designated Seller in Schedule 1 (Designated Sellers, Designated Buyers and  Apportionment of Purchase Price).  2.4 The Designated Buyers shall not be obliged to complete the purchase of any of the Sale Shares  unless the purchase of all of the Sale Shares is completed simultaneously.  3 Conditions precedent  3.1 Completion of the sale and purchase of the Sale Shares is conditional on the satisfaction (or, in  respect of the Condition in clause 3.1(a), satisfaction or waiver) of the following (the Conditions):  (a) confirmation having been received in writing by the Buyer from the United Kingdom  Competition and Markets Authority (the CMA) that either:  (i) the CMA does not intend to request further information or open an investigation in  relation to the transactions contemplated by this Agreement (together, the Proposed  Transaction) or any matters arising therefrom, after submission by the Buyer of a  briefing paper to the CMA’s merger intelligence committee setting out the reasons  why the CMA should not commence an investigation; or  (ii) the CMA does not intend to refer the Proposed Transaction or any matters arising  therefrom for a Phase 2 CMA Reference or to seek undertakings in lieu of a Phase  2 CMA Reference under section 73 of the Enterprise Act 2002 except on terms  satisfactory to the Buyer and Seller (both acting reasonably) and all conditions  contained in such decision necessary to allow Completion having been satisfied or  complied with; or  (iii) following a Phase 2 CMA Reference of the Proposed Transaction or any matters  arising therefrom, the Proposed Transaction may proceed without any undertakings,  conditions or orders, or may proceed subject to the giving of such undertakings by,  or the imposition of such conditions or orders on, the Buyer or the Seller’s Group as  shall be satisfactory to the Buyer and the Seller (both acting reasonably) and all  





 






Legal-63238732   172878-0002       5       CFD-#3 980496-v1    conditions contained in such decision necessary to allow Completion of the  transaction having been satisfied or complied with.  (b) ROI Merger Control  (i) the CCPC having informed the Buyer and Seller in writing in accordance with Section  21(2)(a) of the Competition Act, that the sale and purchase of the Sale Shares may  be put into effect and where such determination is subject to any commitments under  Section 20(3) of the Competition Act, on terms satisfactory to the Buyer and Seller  (both acting reasonably); or    (ii) the period specified in Section 21(2) of the Competition Act having elapsed without  the CCPC having informed the Buyer and Seller in writing of the determination it has  made under Section 21(2) of the Competition Acts in relation to the sale and  purchase of the Sale Shares; or   (iii) the CCPC having furnished to the Buyer and Seller a copy of its determination in  writing, in accordance with Section 22(3)(a) of the Competition Act, that the sale and  purchase of the Sale Shares may be put into effect and where such determination is  subject to any commitments under Section 20(3) of the Competition Act, on terms  satisfactory to the Buyer and Seller (both acting reasonably); or    (iv) the CCPC having furnished to the Buyer and Seller a copy of its determination in  writing, in accordance with Section 22(3)(c) of the Competition Act, that the sale and  purchase of the Sale Shares may be put into effect subject to any conditions  specified by the CCPC in relation to the sale and purchase of the Sale Shares being  complied with (such conditions being satisfactory to the Buyer and Seller acting  reasonably); or   (v) the period specified in Section 22(4)(a) (including where any such period is  suspended by virtue of the application of Section 22(4)(A)) of the Competition Act  having elapsed without the CCPC having made a determination in writing under  Section 22(3) of the Competition Act in relation to the sale and purchase of the Sale  Shares.  3.2 The Condition in clause 3.1(a) may be waived by notice in writing from the Buyer to the Seller at  the Buyer’s sole discretion.  3.3 The Buyer agrees to use all reasonable endeavours to ensure that the Conditions are satisfied  as soon as reasonably practicable after the date of this Agreement and in any event by the  Longstop Date.  





 






Legal-63238732   172878-0002       6       CFD-#3 980496-v1    3.4 Without prejudice to the generality of clause 3.3, the Buyer shall:  (a) make promptly all notifications, submissions, responses and communications with the CMA  and the CCPC (each, a Competition Authority) as are necessary or desirable to expedite  the satisfaction of the Conditions;  (b) provide to the Seller a draft of any notification, submission, response or communication  before it is submitted to a Competition Authority and to take into account any reasonable  comments of the Seller prior to making that notification, submission, response or  communication;  (c) keep the Seller informed as to the progress of any notification, submission, response or  communication made to a Competition Authority, and inform the Seller of all material  communications from a Competition Authority;  (d) permit the Seller’s attendance at meetings with a Competition Authority unless prohibited  by the Competition Authority in question;   (e) offer, or if proposed by either Competition Authority (as the case may be), accept, any  conditions, commitments, undertakings and the like (together, Commitments) that are  necessary to obtain satisfaction of the conditions precedent as set out in clauses 3.1(a)(ii)  or 3.1(a)(iii) above (in respect of the CMA) or satisfaction of the conditions precedent set  out in clauses 3.1(b)(i), 3.1(b)(iii) or 3.1(b)(iv) (in respect of the CCPC), provided those  Commitments are not material in the view of the Parties, acting reasonably;  (f) when considering offering or accepting any Commitments, allow the Seller to review the  draft Commitments and take into account any reasonable comments of the Seller in the  Commitments before they are submitted to, or agreed with, a Competition Authority; and  (g) provide the Seller with such information about the Buyer (or in respect of commercially  sensitive information, to Seller’s counsel on a strictly confidential basis) as is reasonably  necessary and to which it is legally entitled to enable the Seller to make appropriate  submission(s) to a Competition Authority, if any such submission is requested by that  Competition Authority, for the satisfaction of the Conditions.  3.5 The Seller shall promptly provide to the Buyer (or in respect of commercially sensitive information,  to Buyer’s counsel on a strictly confidential basis) such information about the Target Companies  and the Business as is reasonably necessary to enable the Buyer to make appropriate  submissions, notifications and responses to a Competition Authority.  





 






Legal-63238732   172878-0002       7       CFD-#3 980496-v1    3.6 Each Party shall promptly notify the other if at any time it becomes aware of a fact or circumstance  that might prevent or materially delay the Conditions being satisfied.  3.7 The Buyer shall promptly notify the Seller that the Conditions have been satisfied.  3.8 If the Conditions are not satisfied (or, in respect of the Condition in clause 3.1(a), satisfied or  waived in accordance with the terms of this Agreement) on or before the Longstop Date, this  Agreement shall terminate (except for the Surviving Provisions which shall remain in full force and  effect) and no Party shall have any claim against any other except for any prior breach of this  Agreement.  3.9 The Buyer may, by notice to the Seller, terminate this Agreement at any time before Completion  with immediate effect if any Material Adverse Change arises or occurs at any time before  Completion, and in such circumstances this Agreement shall terminate (except for the Surviving  Provisions which shall remain in full force and effect) and no Party shall have any claim against  any other except for any prior breach of this Agreement.  3.10 Pending Completion, the Seller shall comply and procure compliance with the Pre-Completion  Undertakings.  4 Consideration  4.1 The consideration for the sale of the Sale Shares shall be the payment by the relevant Designated  Buyer (or, failing which, the Buyer) to the Seller of the Purchase Price.  4.2 The Purchase Price shall be payable as follows:  (a) at Completion, each Designated Buyer (or, failing which, the Buyer) shall pay the amount  of the Initial Purchase Price apportioned (pursuant to clause 4.3 below) to the Sale Shares  in respect of which it is the Designated Buyer in accordance with paragraph 1 of Part B of  Schedule 8 (Completion); and  (b) after Completion, such further payments as are provided for under clauses 4.9 to 4.11  (inclusive) shall be made by the relevant Designated Buyer (or the Buyer) to the relevant  Designated Seller or by the relevant Designated Seller to the relevant Designated Buyer  (as the case may be) in accordance with those clauses.  4.3 The Purchase Price shall be apportioned as between the Sale Shares in the amounts set out in  column (4) of the table contained in Schedule 1 (Designated Sellers, Designated Buyers and  Apportionment of Purchase Price) as to the Headline Price, adjusted by reference to the  Estimated Working Capital and Estimated Net Indebtedness to the extent that the relevant  





 






Legal-63238732   172878-0002       8       CFD-#3 980496-v1    adjustment is attributable to the value of the Sale Shares of a particular Target Company, and  further adjusted (pursuant to clause 4.12 below) as required to reflect any payments made  pursuant to clauses 4.9 to 4.11 (inclusive).  The Stock Take  4.4 The Seller shall, not less than five Business Days prior to Completion, provide the Buyer with its  reasonable estimate calculated in good faith of the value of the Stock as at Completion (as a  component of the Estimated Working Capital notified in accordance with clause 4.7), which shall  be calculated in accordance with Schedule 9 (Completion Statements).  4.5 On the Completion Date, the Seller shall procure that, for the purposes of the Working Capital  Statement, a stock take (Stock Take) is carried out at each of the Properties in accordance with  the customary practices of the Seller’s Group and otherwise as reasonably agreed between the  Buyer and Seller. The description and quantity of each item of Stock shall be determined by the  Seller acting reasonably and in accordance with the past practices of the Seller’s Group in respect  of the Business for the purposes of the preparation of its annual accounts, and the value of each  item of Stock shall be valued in accordance with Schedule 9 (Completion Statements). Any Stock  that is held at a third party premises (Third Party Stock) shall be verified by third party statements  in accordance with ordinary business practices.  4.6 Without prejudice to the Buyer’s right to dispute any items in the Draft Completion Statements  pursuant to Schedule 9 (Completion Statements), the Buyer and its Representatives shall be  invited, and the Seller shall procure that the Buyer is provided with sufficient opportunity, to be  present at the Properties during the stocktaking activities relating to the Stock Take and observe  the Stock Take being conducted. The Seller shall, and shall procure that other members of the  Seller’s Group shall, provide the Buyer and its Representatives with all documents, books, records  and other information within the power, possession or control of the Seller’s Group that they may  reasonably request in connection with the Stock Take and the verification of the Third Party Stock.  Determination of the Purchase Price  4.7 The Seller shall, not less than five Business Days prior to Completion, provide the Buyer with its  reasonable estimate calculated in good faith of the Estimated Net Indebtedness and the  Estimated Working Capital, which shall be calculated in accordance with Schedule 9 (Completion  Statements).  4.8 The provisions of Schedule 9 (Completion Statements) shall apply in respect of the preparation  and finalisation of the Completion Statements and the consequent determination of the Purchase  Price.  





 






Legal-63238732   172878-0002       9       CFD-#3 980496-v1    4.9 If the Actual Working Capital, as shown by the Working Capital Statement, is:  (a) less than the Estimated Working Capital, the relevant Designated Seller shall pay to the  relevant Designated Buyer in accordance with clause 4.11 an amount equal to the  difference; or  (b) greater than the Estimated Working Capital, the relevant Designated Buyer shall pay to the  relevant Designated Seller in accordance with clause 4.11 an amount equal to the  difference; or  (c) equal to the Estimated Working Capital, no payment shall be due from the Seller, the Buyer,  any Designated Seller(s) or any Designated Buyer(s) pursuant to this clause 4.9.  4.10 If the Actual Net Indebtedness, as shown by the Net Debt Statement, is:  (a) greater than the Estimated Net Indebtedness, the relevant Designated Seller shall pay to  the relevant Designated Buyer in accordance with clause 4.11 an amount equal to the  difference; or  (b) less than the Estimated Net Indebtedness, the relevant Designated Buyer shall pay to the  relevant Designated Seller in accordance with clause 4.11 an amount equal to the  difference; or  (c) equal to the Estimated Net Indebtedness, no payment shall be due from the Seller, the  Buyer, any Designated Seller or the any Designated Buyer pursuant to this clause 4.10.  4.11 Any payments which the Buyer, the Seller, each Designated Buyer and each Designated Seller  are respectively obliged to pay to another Party under clauses 4.9 and 4.10 shall be aggregated  or set off against each other, as the case may be.  Any resulting sums shall be paid by the relevant  Designated Buyer or the relevant Designated Seller (as the case may be, or failing which the  Buyer or Seller, as the case may be) within five Business Days following the date of finalisation  of the Completion Statements. Any such payment shall be made in accordance with clause 29  (Payments and interest).  4.12 For the purposes of clause 4.2(b) and clauses 4.9 to 4.11, relevant Designated Buyer or  relevant Designated Seller shall mean:  (a) to the extent that the relevant adjustment is attributable to the value of the Sale Shares of  a particular Target Company, the Designated Buyer that has purchased those Sale Shares  or the Designated Seller that has sold those Sale Shares (as appropriate);  





 






Legal-63238732   172878-0002       10       CFD-#3 980496-v1    (b) to the extent that the relevant adjustment cannot be attributed to the value of any particular  Sale Shares, all Designated Buyers or all Designated Sellers (as appropriate) pro rata to  the proportion of the Initial Purchase Price paid (in the case of a Designated Buyer) or  received (in the case of a Designated Seller) by each of them.  4.13 Any payment made by the Seller, the Buyer, any Designated Seller or by any Designated Buyer  pursuant to this Agreement shall, so far as possible, be treated, for the purposes of Tax, as an  adjustment to the consideration paid or payable for the Sale Shares to which the payment relates.  4.14 The parties agree that all professional or other fees, liabilities, expenses or other costs paid or  agreed to be paid or incurred or owing by any member of the Seller’s Group since the Accounts  Date (including any VAT in respect of such costs) in connection with the implementation of the  transactions contemplated by the Transaction Documents and the Hive Down Agreements  (including, for the avoidance of doubt, any transaction or retention bonuses payable to any  Employee in connection with the implementation of such transactions (including Tax payable as  a consequence)) (Transaction Costs), shall be and remain the responsibility of the Seller and  the Seller shall be solely obliged to settle all sums comprised therein except if, and to the extent,  included in the Completion Statements.  5 Hive Down  5.1 Notwithstanding any other provision of this Agreement, the Seller shall indemnify and hold  harmless the Buyer against, and shall pay promptly on demand to the Buyer an amount equal to  all Losses suffered by, and all Tax paid, payable or liable to be paid by, the Buyer and/or any  member of the Buyer's Group as a result of:  (a) the Hive Down (or any part of it, including the transfer or termination of any individual’s  employment in connection with the Hive Down) subsequently being unwound or declared  void in whole or in part by a court of competent jurisdiction (whether pursuant to section  238 of the Insolvency Act 1986 (or equivalent provisions in Northern Ireland or the ROI,  where applicable) or otherwise); or  (b) any failure by any member of the Seller’s Group to implement or record, or to procure the  implementation or recording of, any part of the Hive Down in accordance with applicable  laws; or  (c) any failure by any member of the Seller’s Group to implement or record, or to procure the  implementation or recording of, any part of the Hive Down in accordance with the terms of  the Hive Down Agreements; or  





 






Legal-63238732   172878-0002       11       CFD-#3 980496-v1    (d) any failure by the Seller or any member of the Seller’s Group to comply with its obligations  to inform and consult with employee representatives of any Employee or group of  Employees or with any Employee or group of Employees directly in connection with the  Hive Down,   in each case together with any Losses arising to the extent they are due and payable by the Buyer  or any member of the Buyer’s Group in investigating or preparing any bona fide claim brought  against the Seller under this clause 5.1 (provided for this purpose, Losses shall not include the  internal costs of Buyer’s Group employees, and any third party expenses must be properly  incurred).  5.2 Notwithstanding any other provision of this Agreement, where any Authorisation the subject of  the Hive-Down Agreements is not held by or registered or in the name of, and capable of lawful  implementation or reliance by, a Newly-Trading Company at Completion:  (a) the Seller shall use its commercially reasonable efforts to procure that, as soon as  reasonably practicable after Completion, such Authorisation (or the relevant part thereof)  is transferred to and/or registered in the name of the relevant Newly-Trading Company  where possible; and   (b) where such Authorisation cannot be assigned, transferred or re-registered in whole or in  part (as relevant):  (i) the Seller shall procure that, to the extent possible, the benefit of the Authorisation  is held on trust for the relevant Newly-Trading Company until the Newly-Trading  Company obtains a replacement, and shall indemnify and hold harmless the Buyer  under this Agreement in respect of any Losses incurred by the Buyer, any member  of the Buyer’s Group and any Newly-Trading Company arising from any failure by  the Newly-Trading Company to hold such Authorisation at Completion; and  (ii) the Buyer agrees it shall use its commercially reasonable efforts to procure such  replacement as soon as practical following Completion; and  (iii) the Buyer agrees to procure that each Newly-Trading Company complies with the  obligations contained in such Authorisation and the requirements of any  Environmental Authority made pursuant to such Authorisation pending replacement  (to the extent such obligations have been notified in writing to the Buyer sufficiently  in advance), and shall indemnify and hold harmless the Seller under this Agreement  in respect of any Losses incurred by any member of the Seller’s Group which arise  in respect of any failure of any Newly-Trading Company or other member of the  





 






Legal-63238732   172878-0002       12       CFD-#3 980496-v1    Buyer’s Group to comply with any such obligations or requirements until such time  as a replacement Authorisation is procured, but only to the extent that such failure  to comply is caused by circumstances first arising after Completion.  5.3 The Parties shall, and shall procure that their respective Related Undertakings shall, enforce their  rights and carry out their obligations under the Hive Down Agreements in a manner which is  consistent with the terms of this Agreement. If there is any conflict between the terms of this  Agreement and the Hive Down Agreements, the terms of this Agreement shall prevail (as between  the Parties to this Agreement and as between any Related Undertakings of either the Buyer or  the Seller) to the extent of any inconsistency.  6 Authorisations  6.1 Notwithstanding any other provision of this Agreement, where any Authorisation (other than those  which are subject to the Hive Down Agreements and to which clause 5.2 shall apply) is not held  by or registered or in the name of, and capable of lawful implementation or reliance by, an Existing  Company at Completion:  (a) the Seller shall use its commercially reasonable endeavours to procure that, as soon as  reasonably practicable after Completion, such Authorisation (or the relevant part thereof)  is transferred to and/or registered in the name of the relevant Existing Company where  possible; and   (b) where such Authorisation cannot be assigned, transferred or re-registered in whole or in  part (as relevant):  (i) the Seller shall procure that, to the extent possible, the benefit of the Authorisation  is held on trust for the relevant Existing Company until the Existing Company obtains  a replacement;  (ii) the Buyer agrees it shall use its commercially reasonable efforts to procure such  replacement as soon as practical following Completion; and  (iii) the Buyer agrees to procure that each Existing Company complies with the  obligations contained in such Authorisation and the requirements of any  Environmental Authority made pursuant to such Authorisation pending replacement  (to the extent such obligations have been notified in writing to the Buyer sufficiently  in advance) and shall indemnify and hold harmless the Seller under this Agreement  in respect of any Losses incurred by any member of the Seller’s Group which arise  in respect of any failure of any Existing Company or other member of the Buyer’s  





 






Legal-63238732   172878-0002       13       CFD-#3 980496-v1    Group to comply with any such obligations or requirements until such time as a  replacement Authorisation is procured, but only to the extent that such failure to  comply is caused by circumstances first arising after Completion.  7 Business Receivables, Business Payables and invoicing   7.1 The Business Receivables shall be and remain the property of the Seller’s Group and, subject to  clause 8 below, the Seller’s Group shall be solely entitled to all sums which are comprised within  the Business Receivables in accordance with their respective terms. The Seller’s Group shall be  solely entitled to collect for its own account the Business Receivables, and, acting reasonably so  as not to prejudice the Buyer and the Target Companies’ relationships with the counterparties to  such Business Receivables, to enforce for its own benefit all securities for the Business  Receivables.  7.2 The Business Payables shall be and remain the responsibility of the Seller’s Group and, subject  to clause 8 below, the Seller (or such member of the Seller’s Group as the Seller may determine)  shall be solely obliged to settle all sums which are comprised within the Business Payables in  accordance with their respective terms.  7.3 The Parties acknowledge and agree that, following Completion, invoice arrangements for all  amounts receivable by or owing to the Buyer (or any member of the Buyer’s Group) for goods  and/or services supplied by the Business following Completion shall be conducted by the Buyer  or otherwise by the Seller solely in accordance with the terms of the Transitional Services  Agreement and the Van Sales Distribution Agreement.  8 Apportionments   8.1 Where any charges or outgoings are paid or incurred, or any payments are received, by either  the Seller’s Group or the Target Companies, in respect of Apportionable Items in relation to the  Business, and such items are of a periodic nature and relate or are otherwise attributable to a  period of time commencing before but ending after the Completion Date, such amount shall be  apportioned pro rata on a time basis between the Parties so that such part of the relevant charges,  outgoings or payments as is attributable to the period ended at (but excluding) the Completion  Date shall be borne by or belong to the Seller and such part of the relevant charges, outgoings or  payments as is attributable to the period commencing at (and including) the Completion Date  shall be borne by or belong to the Buyer.  8.2 The Seller may from time to time send to the Buyer a statement setting out its good faith estimate  of any apportionments required to be paid by either the Buyer or the Seller, together with such  supporting evidence as the Buyer may require, and the Parties shall promptly verify and pay such  





 






Legal-63238732   172878-0002       14       CFD-#3 980496-v1    apportionments as are due. Where the Buyer considers an apportionment is due, the Buyer may  request the Seller to promptly pay such apportionments.  The Buyer and Seller shall confirm all  such apportionments by no later than the date falling 18 months after Completion, following which  neither the Buyer nor the Seller shall be liable for any apportionments requested after that date.  8.3 No apportionments shall be required in respect of Apportionable Items to the extent they have  already been taken into account in the Completion Statements.  9 Inter-Company Balances  9.1 In relation to Inter-Company Balances:  (a) the Seller shall at least five Business Days prior to Completion send to the Buyer an  estimate of each of the Inter-Company Payables, the Inter-Company Receivables and the  resulting Inter-Company Balances;   (b) the Seller shall procure that, at Completion, each relevant Target Company repays in  accordance with applicable law to the relevant member of the Seller’s Group (for itself or,  as the case may be, as agent for the members of the Seller’s Group to which the relevant  Inter-Company Payables are owed) the amount in the applicable currency equal to each of  the Inter-Company Payables; and  (c) the Seller shall procure that, at Completion, each relevant member of the Seller’s Group  (for itself or, as the case may be, as agent for each relevant member of the Seller’s Group)  repays in accordance with applicable law to the relevant Target Company to which the  relevant Inter-Company Receivables are owed the amount in the applicable currency equal  to each of the Inter-Company Receivables,  and the Inter-Company Balances shall be discharged to the extent of such payments.  9.2 The Seller (for itself and on behalf of the Seller’s Group) agrees with the Buyer (for itself and as  trustee for the Target Companies) to, with effect from Completion, waive any right or claim which  it or any member of the Seller’s Group may have against any Target Company in respect of any  fact, matter or circumstance arising prior to Completion, provided at all times that nothing in this  clause 9.2 shall in any way limit or restrict any right or claim under the terms of or in connection  with the Transaction Documents or any Continuing Related Party Agreements.  10 Contracts  10.1 Without prejudice to clause 7, if:  





 






Legal-63238732   172878-0002       15       CFD-#3 980496-v1    (a) a Customer Agreement, Supply Agreement or Shared Agreement has been documented  in a legal contract and is capable of assignment; and  (b) the Customer Agreement, Supply Agreement or Shared Agreement has not been legally  assigned or assigned in equity to a Target Company pursuant to the Hive Down  Agreements,  (a Transferring Contract) then, if and to the extent that any obligations owing by any  counterparty are outstanding at Completion and remain to be performed in whole or in part, the  Seller shall, subject to clause 10.2 below, procure an equitable assignment to the Target  Company to which the Transferring Contract relates of the benefit (other than any Business  Receivables), subject to the burden (other than any Business Payables), of the relevant  Transferring Contract or, in the case of a Shared Agreement, the part of the Shared Agreement  that relates exclusively to the Business (as applicable).  10.2 Without prejudice to clause 7, if the benefit of any Transferring Contract cannot effectively be  assigned to a Target Company pursuant to clause 10.1 (or such an assignment would constitute  an event of default under the relevant Transferring Contract) without obtaining any consent,  approval, waiver or agreement from any counterparty:  (a) this Agreement shall not constitute an equitable assignment or attempted equitable  assignment of the benefit of such Transferring Contract; and  (b) for a period of six months following Completion, the relevant member of the Seller’s Group  shall from Completion to the extent that any obligations owing by any counterparty are  outstanding at Completion and remain to be performed in whole or in part, hold the benefit,  subject to the burden (other than any Business Payables or Business Receivables), of such  Transferring Contract or, in the case of a Shared Agreement, the part of the Shared  Agreement that relates exclusively to the Business (as applicable), on trust for the relevant  Target Company absolutely and the Buyer shall from Completion procure that the Target  Company performs all the obligations of the Seller’s Group under such Transferring  Contract (or in the case of a Shared Agreement, that part that relates exclusively to the  Business), and the Seller’s Group shall (so far as it lawfully may) give such assistance (but  without being required to incur unreasonable costs and without such assistance being to  the detriment of the business of the Retained Kerry Group) to the Buyer as the Buyer may  reasonably require to enable the Target Company to enforce its rights under such  Transferring Contract and shall provide access to all relevant books, documents and other  information in relation to such Transferring Contract as the Buyer may reasonably require  from time to time.  





 






Legal-63238732   172878-0002       16       CFD-#3 980496-v1    10.3 If the terms of the relevant Transferring Contract do not permit that Transferring Contract to be  held on trust for the relevant Target Company or for the Target Company to perform obligations  as a sub-contractor or agent of the Seller (or member of the Seller’s Group) then the Seller and  the Buyer shall use commercially reasonable endeavours to implement an alternative solution  which enables the relevant Target Company to receive the full benefit of the Transferring Contract  to the extent that any obligations owing by any counterparty are outstanding at Completion and  remain to be performed in whole or in part.   10.4 Without prejudice to clauses 10.1 and 10.2 above, the Seller shall, and shall procure that other  members of the Seller’s Group shall, use commercially reasonable endeavours to obtain prior to  the Completion Date:  (a) a consent to assign each Relevant Named Contract (to the extent required under such  contract) signed by the relevant counterparty; and  (b) a waiver or consent signed by the relevant counterparty in relation to the change of control  provisions in the following agreements as triggered by the Hive Down and the transactions  contemplated by this Agreement:  (i) the trade mark licence agreement between Rye Valley Foods Limited and Premier  Foods Group Limited dated 9 December 2020; and  (ii) the licensing and manufacturing agreement between, amongst others, Yo! Sushi UK  Limited and Kerry Foods Limited dated 5 November 2020,  and the Buyer shall provide the Seller with reasonable assistance in such connection.  10.5 The Seller shall, and shall procure that other members of the Seller’s Group shall, use  commercially reasonable endeavours to transfer the relationships with customers and suppliers  to the Target Companies following Completion including by:  (a) introducing the Buyer and its Representatives to the authorised representatives of the  counterparties to the Customer Agreements and the Supply Agreements and taking all  other actions reasonably required in order to transition sales or supplies (as applicable) in  connection with the Business for the benefit of the Target Companies following Completion;   (b) to the extent permitted by applicable law and confidentiality obligations owed to third  parties, providing such information and assistance as the Buyer (or any person acting on  the Buyer’s behalf) may reasonably request in order to facilitate the continuity after  Completion of such sale or supplies in connection with the Business;  





 






Legal-63238732   172878-0002       17       CFD-#3 980496-v1    (c) to the extent permitted by applicable law and confidentiality obligations owed to third  parties, giving to the Buyer such information as it may reasonably require relating to the  Business, and passing on any trade enquiry relating to the Business which the Seller (or  any member of the Seller’s Group) receives as well as any other written notice,  correspondence, information or enquiry received in relation to the Business; and  (d) seeking such consents or waivers (as applicable) from third parties in respect of  confidentiality obligations owed by the Seller’s Group to such third parties as the Buyer (or  any person acting on the Buyer’s behalf) may reasonably request in connection with sub- clauses (b) and (c) above.  10.6 Save as provided above, the Seller shall not be required to give notice, or seek the consent,  approval, waiver or agreement from, any counterparty in connection with any assignment (or  attempted assignment) of a Transferring Contract.   10.7 Without prejudice to clause 5, the terms of this clause 10 shall apply to the transfer of Contracts  to the relevant Target Companies under the Hive Down Agreements in addition to the provisions  set out therein (for the purposes of this clause Contracts has the meaning defined in the  respective Hive Down Agreements).  11 Related Party Agreements  11.1 The Seller shall procure that each of the Related Party Agreements in force immediately prior to  Completion shall terminate in its entirety with immediate effect upon Completion and the Seller  shall procure that each counterparty thereto shall settle all outstanding financial obligations arising  out of such Related Party Agreements in accordance with clause 9 above.   11.2 Effective on and from Completion, the Buyer (for itself and as trustee for the other members of  the Buyer’s Group) and the Seller (for itself and as trustee for the other members of the Seller’s  Group) irrevocably and unconditionally release and discharge each other party to the Related  Party Agreement (for itself and as trustee for the other members of the Buyer’s Group or the  Seller’s Group (as applicable)) from all obligations and liabilities under or in connection with the  Related Party Agreements and waive any right or claim which it may have under or in connection  with the Related Party Agreements.   12 Pensions  12.1 The Seller shall indemnify and hold harmless the Buyer against and from any and all Losses  incurred by the Buyer and/or any Target Company that may arise out of or relate to:  





 






Legal-63238732   172878-0002       18       CFD-#3 980496-v1    (a) the participation of Noon Products Limited, Spurway Foods Limited, Northfield Foods  Limited, Attleborough Foods Limited, Consumer Foods Van Sales Limited, Rollover Limited  and Oakhouse Foods Limited in the UK DC Section;   (b) the participation of Duffy Meats Limited, Consumer Foods Van Sales (Ireland) Limited and  Rye Valley Foods Limited in the ROI DC Plan;  (c) the participation of Consumer Foods Van Sales (Ireland) Limited, Duffy Meats Limited and  Rye Valley Foods Limited in the ROI DB Scheme and any liability of Consumer Foods Van  Sales (Ireland) Limited to the ROI DB Scheme; and  (d) any:   (i) financial support direction (under section 43 of the Pensions Act 2004); or   (ii) contribution notice (under section 38 of the Pensions Act 2004),   issued by the UK Pensions Regulator against the Buyer or a member of the Buyer’s Group  in relation to the UK DB Section.   12.2 Subject to clause  12.3, the provisions of Schedule 6 apply to clause 12.1, other than the words  “by no later than the date falling 18 months after the Completion Date” in paragraph 2.2(c) of  Schedule 6, which shall instead read:  (a) in relation to clause  12.1(a), “by no later than the date falling six years after the Completion  Date”;   (b) in relation to clause 12.1(b), “by no later than the date falling six years after the Completion  Date”;  (c) in relation to clause 12.1(d)(i), “by no later than the date falling two years after the  Completion Date”; and  (d) In relation to clause 12.1(d)(ii), “by no later than the date falling six years after the  Completion Date”.  12.3 Paragraph 2.2 of Schedule 6 shall not apply to clause 12.1(c).   12.4 The Seller shall procure that on or prior to Completion:  (a) each of Noon Products Limited, Spurway Foods Limited, Northfield Foods Limited,  Attleborough Foods Limited, Consumer Foods Van Sales Limited, Rollover Limited and  





 






Legal-63238732   172878-0002       19       CFD-#3 980496-v1    Oakhouse Foods Limited shall (if it has not previously done so) enter into a deed by which  it agrees with the principal employer and the trustees to participate in and be bound by the  provisions of the UK DC Section with effect from the date such Target Company first  employed an active member of the UK DC Section and the Seller shall provide a copy of  such deed or deeds to the Buyer; and  (b) each of Noon Products Limited, Spurway Foods Limited, Northfield Foods Limited,  Attleborough Foods Limited, Consumer Foods Van Sales Limited, Rollover Limited and  Oakhouse Foods Limited shall enter into a deed, documenting with effect from Completion  its cessation of participation in the UK DC Section and its discharge from all further liabilities  to the UK DC Section.  13 Employment   13.1 The Seller shall indemnify and hold harmless the Buyer against and from any and all Losses  incurred by the Buyer and/or any member of the Buyer’s Group relating to (i) the employee  aspects of the Hive Down and (ii) (save insofar as the liability arises as a result of an act or  omission of the Buyer or a member of the Buyer’s Group) the transfer under the Transfer  Regulations of the Central Services Employees in both cases to the extent that those Losses  relate to:  (a) any claims by or on behalf of any individual who is not an Employee that their employment  should have transferred to the Target Companies as part of the Hive Down or as part of  the transfer of the Central Services Employees prior to Completion (save where that  selection has been agreed by the Buyer under the process set out in clauses 13.2 to 13.4  below); and;  (b) any claims by or on behalf of any Central Services Employee or group of Central Service  Employees or by any employee representative on their behalf relating to a claim that [***]  (save where that selection has been agreed by the Buyer under the process set out at  clauses 13.2 to 13.4 below) or that the Seller or any member of the Seller’s Group failed to  comply with its obligations to inform and consult with employee representatives in respect  of the transfer of the Central Services Employees under the Transfer Regulations prior to  Completion.  13.2 As soon as reasonably practicable after the date of this Agreement the Seller will provide the  Buyer with the proposed finalised list of Central Services Employees who it is envisaged will  transfer to the Target Companies prior to Completion under the Transfer Regulations or otherwise  so as to enable the Seller and the Buyer to discuss such proposals [***].   





 






Legal-63238732   172878-0002       20       CFD-#3 980496-v1    13.3 The Seller shall provide the Buyer with any information reasonably requested to understand the  basis for the categorisation of any individual as a Central Services Employee.  13.4 Any final decision on which [***] will rest with the Seller (acting reasonably and having taken into  account any representations made by the Buyer before reaching a final decision). A finalised list  of Central Services Employees will be provided by the Seller to the Buyer as soon as practicable  following its finalisation.  13.5 The Buyer shall indemnify and hold harmless the Seller against and from any and all Losses  incurred by the Seller and/or any member of the Seller’s Group relating to any Central Services  Employee (whether made or brought by any Central Services Employee, group of Central  Services Employees or any trade union or employee representatives on their behalf) as a result  of:  (a) any claim or demand by or on behalf of any Central Services Employee arising from or in  connection with their employment or its termination arising from any act or alleged act, or  omission of the Buyer or any member of the Buyer’s Group; and  (b) any claims by or on behalf of any Central Services Employee or group of Central Services  Employees or by any trade union or employee representative on their behalf  that (including  an entitlement of an employee under or consequent to such claim) arising from  the failure  of the Buyer or a member of the Buyer’s Group to provide sufficient information to the Seller  or any member of the Seller’s Group to allow it or them to comply with its or their obligations  to inform and/or consult or arising from or connected with any failure by the Buyer or any  member of the Buyer’s Group to provide information about the measures or equivalent  thereto which the Buyer or a member of the Buyer’s Group intends to take or envisages  taking or which a transferee employer intends or envisages taking at the direction of the  Buyer or a member of the Buyer’s Group  in relation to any Central Services Employee;  and  (c) any claim in connection with a change in the terms of any Central Services Employee’s   employment or working conditions proposed, initiated or carried out by the Buyer or a  member of the Buyer’s Group.  14 Completion  14.1 Completion shall take place on the Business Day immediately following the closing of the  Accounting Month during which the Conditions are satisfied (or, in respect of the Condition in  clause 3.1(a), satisfied or waived in accordance with the terms of this Agreement) at the offices  of Arthur Cox LLP at Ten Earlsfort Terrace, Dublin 2, D02 T380, Ireland (or at such other place  





 






Legal-63238732   172878-0002       21       CFD-#3 980496-v1    as the Parties may agree on or prior to the Completion Date), provided that if the Conditions  become satisfied or waived on a date which is later than the 14th day of the calendar month,  Completion shall take place on the Business Day immediately following the closing of the following  Accounting Month.  For this purpose, “Accounting Month” means the normal monthly accounting  period of the Seller’s Group (whereby each accounting period (other than year-end) ends on a  Saturday), provided always that under no circumstances for the purposes of this Agreement can  the relevant Accounting Month close later than the last day of the calendar month following the  calendar month during which the Conditions are satisfied or waived.  14.2 The Buyer shall, not less than seven Business Days prior to Completion, finalise the identities of  the Designated Buyers. These shall be the companies identified in column (3) of the table  contained in Schedule 2 (Designated Sellers, Designated Buyers and Apportionment of Purchase  Price) subject to (i) any addition or change established by a new company becoming a Designated  Buyer as a result of a Supplemental Transaction Agency Agreement entered into prior to  Completion pursuant to Part B Schedule 10 (Agency provisions), (ii) the Buyer itself electing to  be a Designated Buyer for one or more or all Sets of Sale Shares or (iii) any other alterations  agreed in writing between the Buyer and the Seller prior to Completion.  14.3 At Completion:  (a) the Seller shall do those things listed in Part A of Schedule 8; and  (b) the Buyer shall do those things listed in Part B of Schedule 8.  14.4 If the Seller or the Buyer (the Affected Party) fails or is unable to comply with any of its obligations  under clause 14.2 or Schedule 8 on the date specified in clause 14.1 then the other (the  Unaffected Party) may:  (a) defer Completion (by notice to the Affected Party) to a date (being a Business Day) not less  than ten nor more than 20 Business Days after that date (in which case the provisions of  clauses 14.2, 14.3 and 14.5 shall apply to Completion as so deferred); or  (b) proceed to Completion so far as practicable but without prejudice to the Unaffected Party's  rights where the Affected Party has not complied with its obligations under this Agreement;  or  (c) terminate this Agreement on such date by notice to the Affected Party.  14.5 If the Affected Party fails or is unable to comply with any of its obligations under clause 14.2 or  Schedule 8 on any date to which Completion is deferred in accordance with clause 14.4(a), the  





 






Legal-63238732   172878-0002       22       CFD-#3 980496-v1    Unaffected Party shall have the right, in addition to its rights in clauses 14.4(a) and 14.4(b), to  terminate this Agreement on such date by notice to the Affected Party.  14.6 If this Agreement is terminated in accordance with clause 14.4(c) or 14.5, all rights and obligations  of the Parties under this Agreement shall end (except for rights and obligations under the  Surviving Provisions which shall remain in full force and effect), provided that nothing in this  clause 14.6 shall limit any rights or obligations of any Party under this Agreement which have  accrued before termination.  15 The Warranties  15.1 The Seller warrants to the Buyer that each of the Seller Warranties is true and accurate as at the  date of this Agreement. Each of the Fundamental Warranties shall be deemed to be repeated on  Completion by reference to the facts and circumstances subsisting at that time on the basis that  any reference in the Fundamental Warranties, whether express or implied, to the date of this  Agreement is substituted by a reference to that time.  15.2 The Seller undertakes to notify the Buyer in writing promptly if it or any other member of the  Seller’s Group becomes aware of any Event which would constitute a breach of the warranty set  out in paragraph 6.3(b) of Schedule 4 if it was repeated at any time before Completion by  reference to the facts and circumstances then existing.   15.3 The Buyer warrants to the Seller in respect of itself and each Designated Buyer that each of the  Buyer Warranties is true and accurate at the date of this Agreement. Each of the Buyer Warranties  shall be deemed to be repeated on Completion by reference to the facts and circumstances  subsisting at that time on the basis that any reference in the Buyer Warranties, whether express  or implied, to the date of this Agreement is substituted by a reference to that time.  15.4 The Seller Warranties (other than the Fundamental Warranties) are subject to and qualified by,  and the Buyer shall be deemed to have actual knowledge of, those matters Disclosed in the  Disclosure Letter.  15.5 The Seller Warranties (other than the Fundamental Warranties) are further subject to and qualified  by, and the Buyer shall be deemed to have actual knowledge of:  (a) all documents and information Disclosed in the Data Room;  (b) all information Disclosed in the Due Diligence Reports and the Information Memorandum;  





 






Legal-63238732   172878-0002       23       CFD-#3 980496-v1    (c) all information Disclosed, specifically noted or specifically referred to in the Accounts (and  the accompanying reports of the directors and the auditors) and the Carve-Out Accounts;  and  (d)  all information Disclosed in the Q&A Responses.  15.6 In each Seller Warranty, where any statement is qualified as being made “so far as the Seller is  aware” or any similar expression, such statement shall be deemed to refer to the actual  knowledge of Gavin Caplis, Nick Robinson, William Cadbury, Ronan Deasy, Fergal Ryan, Declan  Crowley, Tina Mulvihill and Martin O’Donoghue after such persons have made due and careful  enquiry.  15.7 Save for the Seller Warranties contained in:  (a) paragraphs 7 and 10 of Schedule 4, none of the Seller Warranties shall extend to, or be  construed as a warranty relating to the Properties (such matters being the subject of the  Seller Warranties contained only in paragraphs 7 and 10 of Schedule 4);  (b) paragraph 11 of Schedule 4, none of the Seller Warranties shall extend to, or be construed  as a warranty relating to Environmental matters (such matters being the subject of the  Seller Warranties contained only in paragraph 11 of Schedule 4); and  (c) paragraphs 3, 5.3 and 5.4 (in each case, insofar as the matter relates to or is in connection  with Tax) and paragraph 20 of Schedule 4, none of the Seller Warranties shall extend to,  or be construed as a warranty relating to Tax (such matters being the subject of the Seller  Warranties contained only in paragraphs 3, 5.3 and 5.4 (in each case, insofar as the matter  relates to or is in connection with Tax) and paragraph 20 of Schedule 4).  15.8 None of the Seller Warranties shall extend to, or be construed as a warranty relating to Excluded  Assets, Excluded Contracts and Excluded Liabilities (except in respect of their exclusion).   15.9 Without prejudice to the generality of clauses 15.6 and 22 (Entire agreement), the Buyer  acknowledges that the only warranties or other assurances of any kind given by or on behalf of  the Seller are the Seller Warranties and that accordingly the Seller makes no warranty or  representation as to:  (a) the accuracy or completeness of any statements (including any statements of opinion)  contained in the Disclosure Letter;  





 






Legal-63238732   172878-0002       24       CFD-#3 980496-v1    (b) the information or documents made available to the Buyer or its advisers or representatives  prior to the date of this Agreement including such as may be contained in the Data Room;  and  (c) any projections, estimates, budgets, statements of intent or statements of opinion delivered  to or made available to the Buyer or its advisers or representatives of future revenues,  future results of operations (or any component thereof), future cash flows or future financial  condition (or any component thereof) of the Target Companies.  15.10 The Seller agrees with the Buyer (for itself and as trustee for the Target Companies and their  respective directors, employees, agents and professional advisers) to waive any right or claim  which the Seller’s Group may have in respect of any misrepresentation or error in, or omission  from any information or opinion supplied or given by the Target Companies and/or any of their  respective directors, employees, agents or professional advisers in the course of negotiating this  Agreement or any other Transaction Document, and that any such right or claim shall not  constitute a defence to any claim by the Buyer’s Group under or in relation to this Agreement or  any other Transaction Document.  15.11 The Seller shall not be liable in respect of any Seller Warranty Claim where the Buyer and/or any  of its agents and/or any of its professional advisers had actual knowledge of the matter giving rise  to that Seller Warranty Claim on or before the date of this Agreement.  15.12 The Buyer confirms to the Seller that, save to the extent that it is Disclosed in the Disclosure  Letter, there is no material fact, matter, event or circumstance which is actually known to the  Buyer which constitutes a breach of a Seller Warranty, and it is not aware of any reason why the  Seller’s Warranties would be incorrect or untrue in any respect, as at the date of this Agreement.  15.13 The Warranties shall not in any respect be extinguished or affected by Completion.  15.14 Each of the Warranties shall be construed as a separate and independent warranty and the  relevant Parties shall have a separate claim and right of action in respect of every breach of a  relevant Warranty.  15.15 The satisfaction by the Seller of any claim under this Agreement (including the Seller Warranties)  shall (so far as is legally possible) be deemed to constitute a reduction in the consideration  payable by the Buyer for the sale of the Sale Shares.  16 Limitations of liability  All Relevant Claims shall be subject to the limitations and other provisions set out in Schedule 6  (Limitations on the liability of the Seller).  





 






Legal-63238732   172878-0002       25       CFD-#3 980496-v1    17 Restrictive covenants  17.1 The Seller undertakes to the Buyer that it shall not, and shall procure that no member of the  Seller's Group shall, directly or indirectly, alone or with, through or as any manager, adviser,  consultant, partner, employee or agent for any person:  (a) for a period of two years from Completion carry on any business in the United Kingdom or  the Republic of Ireland which is engaged in the manufacture or sale of any Restricted  Products in competition with the Business, save that nothing in this clause 17.1(a) shall  operate to prohibit the Seller or any member of the Seller’s Group (alone or with any  associated person) from (i) holding up to five per cent of the shares of any company or  group, the shares of which are listed or dealt in on a recognised stock exchange nor (ii)  from carrying on ingredients solutions under the Seller’s Group’s Taste and Nutrition  division in support of Restricted Products or otherwise;   (b) for a period of two years from Completion, solicit from the Buyer any Senior Employee,  whether or not that person would commit any breach of their contract of employment by  reason of leaving the service of the Buyer, save that nothing in this clause 17.1(b) shall  prevent the Seller or any member of the Seller's Group from:  (i) publishing any bona fide recruitment advertisement which is not targeted at any  person who was employed by the Seller in the Business at any time during the 12  months immediately prior to Completion;  (ii) recruiting any person in response to any such advertisement; or  (iii) negotiating with or offering to employ any person who initiates any contact with the  Seller or any member of the Seller's Group with regard to such employment; or  (c) for a period of two years from Completion, without the prior written consent of the Buyer,  use, whether on its own behalf or on behalf of any third party, any Confidential Information  or divulge to any third party any such information, save that nothing in this clause 17.1(c)  shall prevent the Seller or any member of the Seller’s Group from:  (i) using or divulging any information which is in or enters the public domain, other than  through a breach of the obligations of confidentiality set out in this Agreement; or  (ii) disclosing any information to the extent it is required to do so by any applicable law,  governmental order, decree, regulation, licence or rule or pursuant to the regulations  of any securities exchange or regulatory or governmental body to which it is subject,  





 






Legal-63238732   172878-0002       26       CFD-#3 980496-v1    in each case provided that any disclosure shall, so far as is practicable, be made  only after consultation with the Buyer.   17.2 The Buyer undertakes to the Seller that it shall not, and shall procure that no member of the  Buyer’s Group shall, directly or indirectly, alone or with, through or as any manager, adviser,  consultant, partner, employee or agent for any person for a period of two years from Completion,  solicit from the Seller’s Group any employee of the Seller’s Group (other than an Employee) who  earns a basic annual salary of £80,000 (or local currency equivalent) or more, whether or not that  person would commit any breach of their contract of employment by reason of leaving the service  of the Seller’s Group, save that nothing in this clause 17.2 shall prevent the Buyer or any member  of the Buyer’s Group from:  (a) publishing any bona fide recruitment advertisement which is not targeted at any person  who was employed by the Seller’s Group in the Retained Business at any time during the  12 months immediately prior to Completion;  (b) recruiting any person in response to any such advertisement; or  (c) negotiating with or offering to employ any person who initiates any contact with the Buyer  or any member of the Buyer's Group with regard to such employment.  17.3 The Seller and the Buyer agree that the restrictive covenants in clauses 17.1 and 17.2 are  reasonable and necessary for the protection of the value of the Business or Retained Business  (as applicable).  17.4 The Seller and the Buyer agree that if the restrictive covenants in clauses 17.1 and 17.2 are  adjudged to go beyond what is reasonable in all the circumstances for the protection of the  legitimate interests of the Buyer or the Seller (as applicable) but would be adjudged reasonable  if part or parts of their wording were deleted or amended or qualified or the periods referred to  were reduced or the range of products or area dealt with were reduced in scope, then the relevant  restriction or restrictions shall apply with such modification or modifications as may be necessary  to make it or them valid and effective.  17.5 Save to the extent necessary to protect its rights in a bona fide manner in any legal proceedings,  the Buyer undertakes to the Seller that it shall not, and shall procure that no member of the Buyer’s  Group shall, directly or indirectly, alone or with, through or as any manager, adviser, consultant,  partner, employee or agent for any person at any time make, publish or communicate to any  person or in any public forum any defamatory or disparaging remarks, comments or statements  concerning the Seller’s Group, the Retained Business, or the Business in respect of the period  prior to Completion.  





 






Legal-63238732   172878-0002       27       CFD-#3 980496-v1    17.6 Save to the extent necessary to protect its rights in a bona fide manner in any legal proceedings,  the Seller undertakes to the Buyer that it shall not, and shall procure that no member of the Seller’s  Group shall, directly or indirectly, alone or with, through or as any manager, adviser, consultant,  partner, employee or agent for any person at any time make, publish or communicate to any  person or in any public forum any defamatory or disparaging remarks, comments or statements  concerning the Buyer’s Group or the Business in respect of the period prior to or following  Completion.  18 Insurance  18.1 Seller’s Group Insurance Policies means the material insurance policies of the Seller’s Group  (whether such policies are maintained with third party insurers or with other members of the  Seller’s Group) which relate to the Business or the Target Companies (and any renewals or  replacement of such policies).     18.2 From the date of this Agreement until (and including) the Completion Date, the Seller shall (and  shall procure that the relevant members of the Seller’s Group shall) maintain in force and comply  with the Seller’s Group Insurance Policies in all material respects (including, where required,  notifying the insurer of the Proposed Transaction) on the same terms and with a similar level of  cover to that prevailing at the date of this Agreement for the benefit of the Target Companies.  18.3 If any insured event occurs before Completion of which the Seller becomes aware before  Completion in relation to any Target Company or the Business, the Seller shall, provided that to  do so would be consistent with the Seller’s past practice, give notice to the relevant insurer in  accordance with the terms of the relevant Seller’s Group Insurance Policy and shall use all  reasonable efforts to make recovery under the relevant policy prior to Completion. To the extent  that such recovery is made prior to the Completion Date, the Seller shall ensure that the proceeds  are dealt with in accordance with procedures normally observed by the Business.  18.4 From Completion, the Seller shall use its commercially reasonable endeavours (in each case  without incurring further cost, premium or liability on the part of the Seller’s Group (but excluding  any subsequent increase in premia and/or costs under the Seller’s Group Insurance Policies  arising as a result of making and/or pursuing any Permitted Claim in accordance with this  Agreement)) to ensure that all Seller’s Group Insurance Policies which are on a “claims occurring”  basis and which are in force at Completion continue in force on the same terms to the extent that  (i) they provide cover in relation to any matter or event occurring in relation to any Target  Company and/or the Business before Completion; and (ii) under their respective terms, claims  can still be made or pursued after Completion for matters or events occurring or existing prior to  Completion. The only claims that will be made or pursued by or on behalf of the Buyer’s Group  





 






Legal-63238732   172878-0002       28       CFD-#3 980496-v1    under those policies (together the Permitted Claims) will be: (x) those that have already been  notified to the relevant insurer(s) before Completion and are pending or outstanding at  Completion; and (y) any additional claims that are notified to the Seller on or before the third  anniversary of Completion in relation to any event or act that occurred or existing prior to  Completion.    18.5 The Seller shall procure that each member of the Seller’s Group shall take such commercially  reasonable steps as the Buyer reasonably requires (in each case without incurring further cost or  liability on the part of the Seller’s Group (but excluding any subsequent increase in premia and/or  costs under the Seller’s Group Insurance Policies arising as a result of making and/or pursuing  any Permitted Claim in accordance with this Agreement)) to make and/or pursue any Permitted  Claim (including giving notice of the claim to the insurer at the request of the Buyer) or to assist  any Target Company or any member of the Buyer’s Group in making the claim, and shall pay to  the Buyer (on behalf of the relevant Target Companies) any proceeds actually received within ten  Business Days of their receipt (less any Tax in respect of such proceeds). To the extent the Buyer  considers it has a Permitted Claim, all such Permitted Claims shall be made through the Seller,  and the Buyer shall not engage directly with the insurer. The Buyer shall ensure that any  information provided to the Seller for the purposes of making a Permitted Claim is accurate and  shall indemnify and hold harmless the Buyer in the event of any losses arising as a result of the  inaccuracy of such information or otherwise arising from making an improper claim on the Buyer’s  behalf in accordance with the Buyer’s requests.  18.6 The Seller undertakes (in the event that a claim is made against it in connection with the Proposed  Transaction) not to make a claim against any Target Company or any person who was at any  time prior to Completion an employee, consultant, officer or director of any Target Company (a  Covered Person) on whom the Seller may have relied in negotiating this Agreement, except in  the case of fraud, bad faith or deliberate concealment by such Target Company or Covered  Person.  19 Post-Completion matters  Further assurance  19.1 Each Party shall at its own cost (and shall use all reasonable endeavours to procure that any third  parties shall) promptly execute and deliver such other documents in a form reasonably  satisfactory to the Party concerned, and take such other actions, as required by law or as may be  necessary or reasonably required by the other Party to give the other Party the full benefit of this  Agreement, the Hive Down Agreements and the other Transaction Documents.  "Wrong pockets"  





 






Legal-63238732   172878-0002       29       CFD-#3 980496-v1    19.2 If, following Completion, in error the Seller or any member of the Seller's Group (a) owns,  possesses, receives or has the benefit of any asset; (b) is party to or has the benefit of any  contract or part of a contract; or (c) has a liability, in each case which relates exclusively to the  Business, the Seller shall, at its sole expense, procure that such asset is transferred or the  relevant contract is assigned, novated or otherwise transferred to, or such liability is assumed by,  the Buyer (or such member of the Buyer's Group as the Buyer shall nominate), in each case  together with any benefit or sum, net of any liability to Tax (or any liability that would arise but for  the availability of any Relief), accruing to any member of the Seller’s Group as a result of holding  such asset, contract or liability since Completion that would have accrued for the benefit of the  Buyer but for such error for no additional consideration as soon as practicable after becoming  aware of such error.  19.3 If, following Completion, in error the Buyer or any member of the Buyer's Group (a) owns,  possesses, receives or has the benefit of any asset; (b) is party to or has the benefit of any  contract; or (c) has a liability, in each case which relates exclusively to the Retained Business,  the Buyer shall, at the Seller’s sole expense, procure that such asset is transferred or the relevant  contract is assigned, novated or otherwise transferred to, or such liability is assumed by, the Seller  (or such member of the Seller's Group as the Seller shall nominate), in each case together with  any benefit or sum, net of any liability to Tax (or any liability that would arise but for the availability  of any Relief), accruing to any member of the Seller’s Group as a result of holding such asset,  contract or liability since Completion, that would have accrued for the benefit of the Seller but for  such error for no consideration as soon as practical after becoming aware of such error.  19.4 Pending:  (a) any transfer, novation or assignment of an asset or contract pursuant to clause 19.2 or  19.3, the relevant asset or contract shall be held on trust for the person entitled thereto until  the completion of such transfer or assignment, and such person shall pay on demand to  the other Party an amount equal to all Losses suffered or incurred by such other Party  and/or its Related Undertakings in respect of holding such asset or contract until the  completion of such transfer, novation or assignment; and  (b) any assumption of a liability pursuant to clause 19.2 or 19.3, the Party properly liable  therefor shall pay on demand to the other Party an amount equal to all Losses suffered or  incurred by such other Party and/or its Related Undertakings in respect of such liability until  the completion of such assumption.  19.5 Subject to the terms of the Transitional Services Agreement, if, at any time after Completion:  





 






Legal-63238732   172878-0002       30       CFD-#3 980496-v1    (a) the Buyer (or any member of the Buyer’s Group) receives any monies in respect of  Business Receivables, the Buyer shall, as soon as practicable, pay to the Seller (or as the  Seller may direct) the amount of the monies received in respect of such Business  Receivable; and   (b) the Seller (or any member of the Seller’s Group) receives any monies in respect of goods  and/or services supplied by the Business following Completion, the Seller shall, as soon as  practicable, pay to the Buyer (or as the Buyer may direct) the amount of the monies  received.  19.6 Subject to the terms of the Transitional Services Agreement, if, at any time after Completion:  (a) the Seller receives any invoice or other demand or request for payment in respect of goods  and/or services supplied to the Business following Completion, the Seller shall promptly  notify the Buyer and the Parties shall use their respective reasonable endeavours to  procure that such invoice, demand or request is cancelled by way of an appropriate credit  note and re-issued by the relevant counterparty in the name of the Buyer (or as the Buyer  may direct) provided that if such invoice, demand or request is not so reissued by the time  it falls due, the Buyer shall, as soon as practicable, pay to the Seller (or to the relevant  counterparty or otherwise as the Seller may direct) the amount of such invoice, demand or  request (including any VAT payable in respect thereof); and  (b) the Buyer receives any invoice or other demand or request for payment of any Business  Payable, the Buyer shall promptly notify the Seller and the Parties shall use their respective  reasonable endeavours to procure that such invoice, demand or request is cancelled by  way of an appropriate credit note and re-issued by the relevant counterparty in the name  of the Seller (or as the Seller may direct) provided that if such invoice, demand or request  is not so reissued, the Seller shall, as soon as practicable, pay to the Buyer (or to the  relevant counterparty or otherwise as the Buyer may direct) the amount of such Business  Payable (including any VAT payable in respect thereof).  Books and records  19.7 The Buyer shall, and shall procure that the Target Companies shall, for a period of seven years  after Completion, retain and permit the Seller and other members of the Seller’s Group (and their  duly authorised Representatives) to have reasonable access during normal business hours to  (with the right to take copies of, including electronic copies of, at the Seller’s expense), the books,  records and documents of the Target Companies (including any financial and/or tax records,  assessments and returns, and related correspondence with any auditor of any Target Company  and/or any Tax Authority) to the extent they relate to periods prior to or which include Completion.  





 






Legal-63238732   172878-0002       31       CFD-#3 980496-v1    19.8 The Seller shall, and shall procure that the relevant members of the Seller’s Group shall, for a  period of seven years after Completion, retain and permit the Buyer and other members of the  Buyer’s Group (and their duly authorised Representatives) to have reasonable access during  normal business hours to (with the right to take copies of, including electronic copies of, at the  Buyer’s expense), the books, records and documents of the relevant members of the Seller’s  Group (including any financial and/or tax records, assessments and returns, and related  correspondence with any auditor of any such member of the Seller’s Group and/or any Tax  Authority) to the extent they relate to a Target Company and/or the Business and to periods prior  to or which include Completion.  Debranding  19.9 Subject to clause 19.10 below, the Buyer shall, and shall procure that each member of the Buyer's  Group shall, within three months following Completion, remove from all business stationary and  from all premises occupied by the Buyer’s Group any trademarks or business name that consist  of or includes the word "Kerry" (the Retained Name).  19.10 The Buyer and each member of the Buyer’s Group shall:  (a)  not be required to remove any trademarks or business name that consists of or includes  the Retained Name from Stock held at Completion but shall use commercially reasonable  endeavours to dispose of such Stock in the ordinary course of trading; and  (b) be permitted to use, on an non-exclusive, royalty-free, non-transferable basis, any trade  marks of business names that consist of or include the Retained Name on the Target  Companies’ product labels and packaging for a maximum period of 12 calendar months  from Completion in order to give the Target Companies a reasonable grace period to  rebrand their product labels and packaging provided that no new orders of packaging  including the Retained Name are placed after a period of 3 months from Completion and  the Retained Name is used only: (i) on labels and packaging that display the Retained  Name at Completion; and (ii) in the same manner and form as the Retained Name is used  as at Completion, and provided further that in the event of any actual or suspected material  breach of Food Safety Laws in respect of products bearing the Retained Name, the Buyer  shall promptly notify the Seller and consult with the Seller about any potential product recall  or similar remediation, and the Seller shall be entitled at its option acting reasonably to  terminate this licence.   Change of Companies’ Names  





 






Legal-63238732   172878-0002       32       CFD-#3 980496-v1    19.11 The Seller shall procure that Henry Denny & Sons (Ireland) Limited shall change its company  name to a name which shall not contain the word "Denny" within one month of Completion.  19.12 In connection with the change of names of companies in the Seller's Group to be implemented  pursuant to clause 19.11, the Seller shall, and shall procure that each member of the Seller's  Group shall, within three months following Completion, remove from all business stationary and  from all premises occupied by the Seller’s Group any trademarks or business names that consist  of or include the word "Denny".  Release of outstanding Guarantees  19.13 The Buyer shall:  (a) use its reasonable endeavours to secure as soon as reasonably practicable after  Completion the release of the Seller and any other member of the Seller’s Group (without  cost to the Seller) from the Guarantees and other contingent liabilities listed in Schedule 2  of the Disclosure Letter, including (if required) offering its own Guarantee or liability on the  same terms as and in substitution for the existing Guarantee or other liability of the relevant  member of the Seller’s Group, provided that the obligation to ensure release of all such  Guarantees and other contingent liabilities shall not require the Buyer to provide or offer  any guarantees, surety or other security (including a security deposit or bank guarantee)  or agree to any amendment or variation to the agreement to which any such Guarantee or  other contingent liability relates that would, in the reasonable opinion of the Buyer, result in  less favourable terms under such agreement for the Buyer or any Target Company. In  addition, the Buyer shall use its reasonable endeavours to ensure that, as soon as  reasonably practicable after becoming aware of any other Guarantee or other contingent  liabilities in respect of any obligations of any Target Company (but at the earliest at  Completion), the Seller and any other member of the Seller’s Group is released (without  cost to the Seller) from such Guarantee or other contingent liabilities (which for the  avoidance of doubt shall not include the Section 357 Guarantees); and  (b) pay to the Seller on demand an amount equal to all Losses which the Seller’s Group may  suffer or incur in respect of any valid claim made under or in respect of any such  Guarantees, the Section 357 Guarantees or other contingent liabilities which relates to any  matter or event occurring after Completion.  19.14 The Seller shall:  (a) ensure that at Completion each Target Company (without cost to any member of the  Buyer’s Group) is released from all Guarantees and other contingent liabilities given by  





 






Legal-63238732   172878-0002       33       CFD-#3 980496-v1    such Target Company in respect of obligations of the Seller or any other member of the  Seller’s Group, including (if required) offering its own Guarantee or liability on the same  terms as and in substitution for the existing Guarantee or other liability of the relevant  Target Company; and  (b) pay to the Buyer on demand an amount equal to all Losses which the Buyer’s Group may  suffer or incur in respect of any valid claim made under or in respect of any such  Guarantees or other contingent liabilities which relates to any matter or event occurring  after Completion.  20 Environmental indemnity  20.1 The Parties acknowledge and agree that notwithstanding any other provision of this Agreement,  the Buyer’s Group shall be entitled to procure the Groundwater Survey required in respect of the  Hyde Site on or before the second anniversary of Completion, provided that the Buyer shall:  (a) submit to the Seller the proposed scope and methodology for the Groundwater Survey and  the name of the proposed environmental consultant to be appointed;  (b) take account of all reasonable and prompt requests of the Seller in finalising with the Seller  such proposed scope and methodology and the appointment of the environmental  consultant;   (c) submit the proposed scope and methodology agreed between the Buyer and Seller for  review by the Environment Agency (and shall use reasonable endeavours to obtain  approval for such scope and methodology from the Environment Agency, it being  understood that the Buyer may proceed with the Groundwater Survey without such  approval if the Environment Agency’s response is unreasonably delayed); and  (d) provide to the Seller copies of any interim and final reports from the relevant environmental  consultant as soon as reasonably practicable.  20.2 The Seller shall indemnify and hold harmless the Buyer, and shall pay promptly on demand to the  Buyer an amount equal to:  (a) the costs incurred by the Buyer or any member of the Buyer’s Group of undertaking any  Remedial Works to remove any asbestos containing material identified as “high risk” and  for which the recommendation is “remove” in the Asbestos Reports to the extent that it (if  any) remains present at the Hyde Property on the date of Completion, and any Losses  suffered by the Buyer and/or any member of the Buyer’s Group as a result of such presence  (including without limitation any reasonable costs or Losses arising from any interruption to  





 






Legal-63238732   172878-0002       34       CFD-#3 980496-v1    the operation of the Business at the Hyde Site necessary to procure such removal) incurred  within 18 months of the Completion Date; and  (b) any Losses suffered by the Buyer and/or any member of the Buyer's Group as a result of  any claim, action, cause of action, suit, proceeding or written notice alleging liability arising  out of, based on or resulting from the personal injury, death, or other impairment or risk to  the health of any person as a result of their exposure to asbestos or asbestos-containing  materials, to the extent that such exposure occurred at the Hyde Property prior to  Completion as a result of the failure of the Seller’s Group to remove the asbestos containing  material identified as “high risk” as described in sub-paragraph (a); and  (c) the costs incurred by the Buyer or any member of the Buyer’s Group of any Remedial  Works:  (i)  in respect of any contamination or pollution:   (A) arising out of or in connection with the activities of any member of the Seller’s  Group at the Hyde Property; or   (B) any other contamination or pollution of which the Seller is aware as at the  Completion Date (provided that “aware” for the purpose of this sub-paragraph  shall have the same meaning as described in clause 15.6); and  (ii) which are required to bring the Hyde Property (or any part of it) to a standard suitable  for its current use as at the Completion Date (unless otherwise expressly required  by an Environmental Authority); and   (iii) as required or requested by an Environment Authority; and   (iv) the requirement for which has arisen or been identified as a result of undertaking the  Groundwater Survey,  provided that the Buyer and Seller shall consult with respect to planning any Remedial Works and  such Remedial Works are undertaken by and on the recommendation of an appropriately qualified  asbestos or environmental consultant (as the case may be) approved by the Seller (such approval  not to be unreasonably delayed or withheld), in accordance with clauses 20.13 to 20.19  (inclusive).   20.3 The Parties acknowledge and agree clause 20.2(c) constitutes an “agreement on liabilities” under  the Department for Environment, Food and Rural Affairs' statutory guidance on the contaminated  land regime set out in Part IIA of the Environment Protection Act 1990, and the Seller shall  





 






Legal-63238732   172878-0002       35       CFD-#3 980496-v1    promptly (and the Buyer may) produce a copy of it to any Environmental Authority for the purposes  of procuring that any liability is allocated between the Parties in accordance with its provisions.  20.4 The provisions of Schedule 6 apply, save that paragraphs 2.2, 2.3 and 3 of Schedule 6 shall not  apply to the indemnities given by the clause 20.2 above, and the Parties acknowledge and agree  that no provision of Schedule 6 shall operate to limit the Buyer’s entitlement to indemnification  pursuant to clause 20.2(c) as a result of the Groundwater Survey conducted pursuant to clause  20.1, provided that the Groundwater Survey is conducted in accordance with this clause 20.  Limitations on Asbestos Indemnity Claims  20.5 The Seller in respect of any Asbestos Indemnity Claim shall only be liable up to a maximum  aggregate of [***] and such amount will be reduced in an equal and proportionate amount to any  costs incurred by or on behalf of the Seller in relation to undertaking the removal prior to the  Completion Date of any asbestos containing material identified as “high risk” and for which the  recommendation is “remove” in the Asbestos Reports.  20.6 The Seller shall not be liable in respect of any Asbestos Indemnity Claim unless the Buyer has  given written notice to the Seller as soon as reasonably practicable after the Buyer becomes  aware of any Asbestos Indemnity Claim and in any event on or before the date falling 18 months  after the Completion Date.  Limitations on Groundwater Indemnity Claims  20.7 The Seller shall not be liable in respect of any Groundwater Indemnity Claim unless the aggregate  amount of all Groundwater Indemnity Claims for which the Seller would be liable but for this clause  20.7 exceeds in aggregate [***] in which case the Seller shall be liable for the excess.  20.8 The Seller shall not be liable in respect of any Groundwater Indemnity Claim unless the Buyer  has given written notice to the Seller as soon as reasonably practicable after the Buyer becomes  aware of any Groundwater Indemnity Claim and in any event on or before the date falling 5 years  after the Completion Date.  20.9 The Seller shall not be liable in respect of any Groundwater Indemnity Claim which arises due to  any change in Environmental Laws or any new Environmental Laws which comes into force after  the Completion Date;  20.10 Without limiting the generality of clause 20.2(c), the Seller shall not be liable for any Groundwater  Indemnity Claim to the extent that such claim arises from or is increased by:  





 






Legal-63238732   172878-0002       36       CFD-#3 980496-v1    (a) any development of the Hyde Property other than in the ordinary course of business and  in the context of the current use of the Hyde Property;  (b) any change of use, closure or temporary or permanent cessation of operations at the Hyde  Property after the Completion Date;  (c) any voluntary investigation carried out or Remedial Works carried out by or on behalf of the  Buyer after the Completion Date (and for the avoidance of doubt the Parties acknowledge  and agree that the Groundwater Survey is not a voluntary investigation);   (d) any Remedial Works commenced without the prior approval of such Remedial Works by  the Seller (not to be unreasonably withheld or delayed).  20.11 Without limiting the generality of clause 20.2(c), the Seller shall not be liable for any Groundwater  Indemnity Claim under clause 20.2(c) to the extent that such claim arises from or is increased by:  (a) the voluntary provision of information by the Buyer or the Buyer’s Group, or any of their  officers, employees, agents or contractors to an Environmental Authority or other third party  unless such disclosure is:  (i) required by Environmental Laws, requested by any Environmental Authority;  (ii) necessary to respond to any emergency where there is a risk of significant damage  to the  Environment (including human health); or  (iii) made with the prior written consent of the Seller;  (b) any contamination or pollution in, on at or under the Hyde Property which is knowingly  caused, contributed to, exacerbated or permitted due to any actions or negligent omissions  by the Buyer or any member of the Buyer’s Group, its contractors or agents.  Conduct  20.12 The Buyer shall have conduct of any Remedial Works relating to any Groundwater Indemnity  Claim in accordance with the terms of this Agreement.  20.13 In conducting any Remedial Works the subject of a Groundwater Indemnity Claim, the Buyer shall  ensure (unless otherwise agreed by the Parties acting reasonably) that:  (a) a detailed description of the proposed Remedial Works is provided to the Seller for approval  (not to be unreasonably withheld or delayed) prior to undertaking any such Remedial  Works, or any significant change to the scope of such Remedial Works;  





 






Legal-63238732   172878-0002       37       CFD-#3 980496-v1    (b) monthly detailed reports (including invoices and other supporting financial information) are  provided to the Seller regarding the progress of any Remedial Works;  (c) copies of any relevant notices, directions, reports or material correspondence and  documents  in relation to such Remedial Works are provided to the Seller, provided that  the Buyer shall not be required to provide to the Seller any document the disclosure of  which could prejudice any legal privilege;  (d) the Buyer shall have due regard to any reasonable and timely requirements and requests  by the Seller;    (e) the Seller is allowed to attend any material site visits, meetings with the Environmental  Authority and/or meetings with the environmental consultants or contractors undertaking  the Remedial Works;  (f) the Buyer shall take reasonable steps to mitigate any costs at all relevant times.  20.14 The Seller shall only be liable for a Groundwater Indemnity Claim to the extent that any Remedial  Works the subject of such Groundwater Indemnity Claim are carried out:  (a) by suitably qualified and experienced environmental consultants and other contractors   holding suitable insurance policies and who will, in each case, provide appropriate  warranties to the Seller;  (b) in compliance with all Environmental Laws;  (c) competently, diligently and in accordance with standard industry practice and techniques;  and  (d) with the prior approval  (including the costs for such Remedial Works) of the Seller, not to  be unreasonably withheld or delayed, and provided that such prior approval shall not be  required if (and only to the extent that) such Remedial Works are the minimum necessary  to respond to an emergency.  20.15 If the Seller and the Buyer are unable to agree any dispute under clause 20.2 of this Agreement  (Unresolved Issue) within 20 Business Days after receipt by the Buyer or the Seller of notice  from the other that the relevant issue is in dispute and that the party giving such notice requires  expert determination (unless it is resolved to the satisfaction of that party during that period or the  Environmental Authority provides specific directions or guidance to resolve the issue), then the  Buyer or the Seller shall have the right thereafter to require that the Unresolved Issue shall be  referred for binding determination to an independent environmental consultant (Environmental  





 






Legal-63238732   172878-0002       38       CFD-#3 980496-v1    Expert). If Buyer and the Seller fail to appoint an Environmental Expert together within 10  Business Days of specifying a requirement for a referral, then the Environmental Expert will be  appointed on the application of either party by the President for the time being of the Institute of  Environmental Management and Assessment in the United Kingdom.  20.16 The costs and expenses of the Environmental Expert shall be borne by the parties as determined  by the Environmental Expert (or, in the absence of any such determination, by the Buyer and the  Seller equally).  20.17 The Environmental Expert shall be an independent consultant and shall be required to have at  least 10 years' experience in relation to matters of the same general description as the relevant  Unresolved Issue.  20.18 The Environmental Expert shall be instructed to reach his determination and publish it in a private  and confidential report addressed to the Buyer and the Seller within 20 Business Days of his  appointment on the basis of the information provided by the Buyer and the Seller, unless the  Environmental Expert bona fide believes that such information is so incomplete, unrepresentative,  unreliable or inconclusive that it would be unreasonable for a suitably qualified expert to reach  such a determination of the Unresolved Issue on that basis, in which case the Environmental  Expert shall require such further information from the parties as is appropriate to make its  determination.  20.19 The determination of the Environmental Expert shall be final and binding on the parties and shall  be conclusive in any proceedings between the parties, save in the case of manifest error.  21 Property Undertaking  21.1 The Seller undertakes to take such actions as the Buyer may reasonably request in the period  between the date of this Agreement and Completion and for a period of up to 12 months following  Completion, the Seller undertakes to assist the Buyer as it may reasonably request, to help to  preserve the current land usage by the relevant Target Company of the lands at Carrickmacross  Industrial Estate, Castleblayney Road, Carrickmacross, Co. Monaghan currently occupied by a  Target Company shown hatched green and the lands shaded pink on Map 2 annexed to the  Declaration of Identity of Peader Stack in respect of the Carrickmacross property (the Occupied  Lands) and where possible to remediate or resolve the title to the Occupied Lands in order to  obtain good and marketable freehold title to the Occupied Lands, to the Buyer’s reasonable  satisfaction, including by (i) assisting in discussions with the registered owners of the Occupied  Lands to acquire the Occupied Lands if requested by the Buyer; (ii) making enquiries with title  insurers in relation to the availability of title insurance to protect the Buyer and the relevant Target  Company against challenge by the registered owners of the Occupied Lands and effecting title  





 






Legal-63238732   172878-0002       39       CFD-#3 980496-v1    insurance if available (iii) obtaining valuations in respect of the Occupied Lands; (iv) defending  and challenging any claim by any third party to title to the Occupied Lands and providing all  assistance reasonably required by the Purchaser to endeavour to register the relevant Target  Company occupying the Occupied Lands with possessory title free from encumbrances in the  Land Registry, provided always that such actions shall be at the Buyer’s exclusive cost.    21.2 The Seller undertakes to not knowingly do or permit to be done anything which would result in the  registered owners of the Occupied Lands or any third party becoming aware that there is any  question as to the relevant Target Companies title to the Occupied Lands unless requested to  make representations to the registered owners of the Occupied Lands by notice in writing from  the Buyer.  21.3 The Seller, and any relevant member of the Seller’s Group, undertakes to engage in good faith  discussions during the period between the date of this Agreement and Completion in respect of  the entering into of licences, effective on and from Completion, in a customary form for the  occupation by the Buyer or relevant member of the Buyer’s Group of the Burton Property and the  Portadown Property (together, the Licensed Properties). Such licences shall include the  following terms:  (a) in relation to the Burton Property:  (i) an initial term of six (6) months from Completion;  (ii) a right for the Buyer or relevant member of the Buyer’s Group to extend the initial six  (6) month term for a further three (3) month period by providing at least two (2)  months’ notice. The Buyer or relevant member of the Buyer’s Group may extend the  licence twice;  (iii) the licence shall reserve a fee payable by the Buyer or relevant member of the  Buyer’s Group of [***] (exclusive of VAT) per calendar month in respect of the initial  six (6) month term and an additional [***] (exclusive of VAT)  per calendar month in  respect of the additional two three (3) month extensions (if exercised by the Buyer  or relevant member of the Buyer’s Group); and  (iv) a right for the Buyer or relevant member of the Buyer’s Group to terminate the licence  by providing at least one (1) months’ written notice (at any time) to the Seller or  relevant member of the Seller’s Group;    (b) in relation to the Portadown Property:  (i) an term of one (1) month from Completion;  





 






Legal-63238732   172878-0002       40       CFD-#3 980496-v1    (ii) the licence shall reserve a fee payable by the Buyer or relevant member of the  Buyer’s Group of [***] (exclusive of VAT) per calendar month in respect of the one  (1) month term; and  (c) in relation to all Licensed Properties:  (i) an obligation on the Buyer or relevant member of the Buyer’s Group to vacate the  premises if the landlord has notified the Seller or relevant member of the Seller’s  Group of its intention to take forfeiture action in respect of the licence; and  (ii) an obligation on the Seller or relevant member of the Seller’s Group to use  reasonable endeavors to assist the Buyer or relevant member of the Buyer’s Group  in re-locating to an alternative suitable premises if the lease is forfeited, which shall  include the Seller and the Buyer entering into good faith discussions about a suitable  alternative, which could include other premises of the Buyer or other members of the  Buyer’s Group or the premises of any third party.  To the extent there are any  incremental costs as a result of the relocation, the Seller and the Buyer shall share  such costs on a 50/50 basis; and  (iii) the Buyer or relevant member of the Buyer’s Group shall not:  (A) make any structural alterations or material additions whatsoever to the  Licensed Properties, and shall ensure that on the expiry date of the relevant  licence the Licensed Properties are left in a clean and tidy condition, with all  of the Buyer or relevant member of the Buyer’s Group’s furniture, equipment  and goods removed from the Licensed Properties, making good any damage  thereby caused, but, for the avoidance of doubt, the Buyer or relevant member  of the Buyer’s Group shall not be obliged to put the Licensed Properties in a  condition that is better than at the date of commencement of the licence;   (B) use the Licensed Properties other than for the permitted use; and  (C) use the Licensed Properties in a manner which would cause the Seller or  relevant member of the Seller’s Group to breach any term of the relevant  lease.   22 Entire Agreement  22.1 In this clause 22, the Relevant Parties shall mean the Seller, the Buyer, each Designated Seller  and each Designated Buyer, and each of them shall be a Relevant Party.   





 






Legal-63238732   172878-0002       41       CFD-#3 980496-v1    22.2 It is agreed that:  (a) the Transaction Documents and Hive Down Agreements constitute the entire agreement  between the Relevant Parties and supersede any prior agreement, understanding,  undertaking or arrangement between the Relevant Parties relating to the subject matter of  the Transaction Documents and Hive Down Agreements;  (b) in entering into the Transaction Documents, the Relevant Parties do not rely on any  statement, representation, assurance or warranty of any person (whether a party to the  Transaction Documents, the Hive Down Agreements or not and whether made in writing or  not) other than as expressly set out in the Transaction Documents or the Hive Down  Agreements;  (c) except as otherwise provided in this Agreement, no Relevant Party may rescind or  terminate this Agreement for breach of contract or for negligent or innocent  misrepresentation or otherwise; and  (d) nothing in this clause, and no other limitation in this Agreement, shall exclude or limit any  liability for fraud.  23 Effect of Completion  All provisions of this Agreement shall, so far as they are capable of being performed or observed,  continue in full force and effect notwithstanding Completion except in respect of those matters  then already performed and Completion shall not constitute a waiver of any of the Buyer's rights  in relation to this Agreement.  24 Remedies and waivers  The rights and remedies of each Party are, except where expressly stated to the contrary, without  prejudice to any other rights and remedies available to it.  No neglect, delay or indulgence by any  Party in enforcing any provision of this Agreement shall be construed as a waiver and no single  or partial exercise of any rights or remedy of any Party under this Agreement will affect or restrict  the further exercise or enforcement of any such right or remedy.  25 Release  The liability of any Party to this Agreement may, in whole or in part, be released, compounded or  compromised and if any Party shall give time or indulgence to the person under such liability, this  will in no way prejudice or affect that Party's rights against any other person under the same or  similar liability.  





 






Legal-63238732   172878-0002       42       CFD-#3 980496-v1    26 Severance  Each provision of this Agreement is severable and distinct from the others and, if any provision  is, or at any time becomes, to any extent or in any circumstances invalid, illegal or unenforceable  for any reason, that provision shall to that extent be deemed not to form part of this Agreement  but the validity, legality and enforceability of the remaining provisions of this Agreement shall not  be affected or impaired, it being the Parties' intention that every provision of this Agreement shall  be and remain valid and enforceable to the fullest extent permitted by law.  27 Set off  Except as otherwise provided in the Transaction Documents, no Party shall be entitled to set off,  deduct or retain from any sum due by it to another Party any amount in respect of a claim under  this Agreement or any of the other Transaction Documents.  28 Withholdings and gross-up   28.1 All sums payable under this Agreement shall be paid free and clear of all deductions or  withholdings whatsoever, save only as may be required by law, regulation or regulatory  requirement.  28.2 If, at any time, any applicable law, regulation or regulatory requirement requires the Buyer or the  Seller (as applicable) make any deduction or withholding from any sums payable in respect of a  Buyer Obligation or a Seller Obligation, the amount so due shall be increased by such amount as  is necessary to ensure that, after the making of such deduction or withholding, the recipient of  that payment receives, on the due date for such payment, a net sum equal to the sum which it  would have received had no such deduction or withholding been required to be made.  28.3 If any Party is required by law to make any deduction or withholding as referred to in clause 28.2,  that Party shall:  (a) make such deduction or withholding; and  (b) pay the full amount deducted or withheld to the relevant Tax Authority in accordance with  applicable law, regulation or regulatory requirement.  28.4 If any amount paid or due to the Seller in respect of a Buyer Obligation or to the Buyer in respect  of a Seller Obligation (in this clause 28.4, the recipient of any such amount being the recipient)  is subject to Tax, or would (but for the availability of any Relief) be subject to Tax, in the hands of  the recipient, then the amount so paid or due (in this clause 28.4, the net amount) shall be  increased to an amount (in this clause 28.4, the grossed-up payment) which (after subtraction  





 






Legal-63238732   172878-0002       43       CFD-#3 980496-v1    of the amount of any Tax which the grossed-up payment is subject to, or would, but for the  availability of any Relief, be subject to) shall equal the net amount, provided that if any amount is  initially paid on the basis that the amount paid or due to the recipient is not subject to Tax in the  hands of the recipient or vice versa and it is subsequently determined that it is or vice versa, an  additional amount shall be paid to or by the recipient (as the case may be) as places the recipient  in the same after-tax position as it would have been in if the amount paid or due to the recipient  had not been taxable in the hands of the recipient.  28.5 If  (a) either the Buyer or a Designated Buyer is resident for tax purposes in any jurisdictions other  than the UK or ROI;  (b) either the Seller or a Designated Seller is resident for tax purposes in any jurisdiction other  than the UK or ROI,   then the liability of the Seller (where sub-clause (a) applies) or the Buyer (where sub-clause (b)  applies) under clauses 28.2 and 28.4 shall be no greater than it would have been if the  relevant sub-clause had not applied.  28.6 If there is an assignment or transfer of all or any of the Buyer’s rights (or those of a Designated  Buyer) under this Agreement in accordance with clause 35.2, then the Buyer shall be entitled to  receive a payment under clauses 28.2 and 28.4 only to the same extent as the Buyer would have  been entitled if the assignment or transfer had not occurred.   29 Payments and interest  29.1 Unless otherwise expressly stated (or otherwise agreed in writing in the case of a given payment),  each payment under this Agreement shall be made on or before the date the payment is due in  immediately available funds by electronic funds transfer for value on that date to:  (a) in the case of a payment to the Seller (or a Designated Seller or any other member of the  Seller’s Group), the Seller's Bank Account, and (where applicable) the Seller agrees to pay  each Designated Seller or other member of the Seller’s Group that part of each payment  to which it is entitled; and  (b) in the case of a payment to the Buyer (or a Designated Buyer or any other member of the  Buyer’s Group), the Buyer's Bank Account, and (where applicable) the Buyer agrees to pay  each Designated Buyer or other member of the Buyer’s Group that part of each payment  to which it is entitled,  





 






Legal-63238732   172878-0002       44       CFD-#3 980496-v1    and receipt of the amount due into the Seller's Bank Account or the Buyer's Bank Account (as the  case may be) shall constitute an effective discharge of the relevant payment obligation.  29.2 If any sum due for payment in accordance with this Agreement is not paid on the due date for  payment, the person in default shall pay interest thereon at the Interest Rate (being such rate per  annum which is equal to 2 per cent over the base rate from time to time of Barclays Bank plc) as  determined on the due date for payment which shall accrue from day to day and shall be  calculated on the basis of a year of 365 days from but excluding the due date to and including the  date of payment.  30 Alterations  No amendment to this Agreement will be effective unless it is made in writing and signed by or  on behalf of the Parties.  31 Counterparts  31.1 This Agreement may be executed in any number of counterparts.  Each counterpart, when duly  exchanged or delivered, is an original, but the counterparts together are one and the same  agreement.  31.2 Any counterpart may take the form of an electronic copy of this Agreement and that counterpart:  (a) will be treated as an original counterpart;  (b) is sufficient evidence of the execution of the original; and  (c) may be produced in evidence for all purposes in place of the original.  32 Costs, Transfer Taxes and sales taxes  32.1 Each of the Parties shall be responsible for its respective legal and other costs incurred in relation  to the negotiation, preparation and completion of this Agreement, the Hive Down Agreements and  all other Transaction Documents.  32.2 All Transfer Taxes in respect of the sale and purchase of the Sale Shares shall be for the account  of, and be paid for by, the Buyer.   32.3 All sums payable under or pursuant to this Agreement shall be exclusive of any VAT and, if any  party (for the purposes of this clause 32.3 only, the Supplier) makes a supply to any other party  (for the purposes of this clause 32.3 only, the Recipient) for VAT purposes and the Supplier or  





 






Legal-63238732   172878-0002       45       CFD-#3 980496-v1    an affiliate of the Supplier is required to account for VAT in respect of that supply, the Recipient  shall, subject to the receipt of a Valid VAT Invoice, pay to the Supplier an amount equal to such  VAT in addition to any other consideration for that supply. Such payment shall be made at the  same time as any such consideration is payable.  33 Agreement binding  This Agreement shall be binding on and shall enure for the benefit of the successors in title of  each Party.  34 Agency structure  Each of the Seller and the Buyer agrees that it is entering into this Agreement on its own behalf  as principal and as agent on behalf of the Designated Sellers or (as the case may be) the  Designated Buyers on the basis set out in Schedule 10 (Agency provisions).  35 Assignment  35.1 Save as provided in clause 35.2, neither the Seller nor the Buyer shall be entitled to assign the  benefit of any rights under this Agreement. Any purported assignment in contravention of this  clause 34 shall be void.  35.2 Subject to any assignment not increasing any liability or creating a liability which would not  otherwise have existed for the non-assigning Party, the benefit of rights under this Agreement  may be assigned:  (a) by the Seller (for itself and/or as agent for each Designated Seller) to another member of  the Seller's Group (the Seller's Assignee), provided that, if the Seller's Assignee ceases  to be a member of the Seller's Group, the Seller shall procure that the Seller's Assignee  shall assign its rights to a member of the Seller's Group and, until such assignment  becomes effective, such rights shall cease to be enforceable; and   (b) by the Buyer (for itself and/or as agent for each Designated Buyer) to another member of  the Buyer’s Group (the Buyer’s Assignee), provided that, if the Buyer’s Assignee ceases  to be a member of the Buyer’s Group, the Buyer shall procure that the Buyer’s Assignee  shall assign its rights to a member of the Buyer’s Group and, until such assignment  becomes effective, such rights shall cease to be enforceable.  35.3 The parties acknowledge that this Agreement is a contract entered into for the purposes of, or in  connection with, the acquisition, disposal or transfer of an ownership interest in a firm (as defined  





 






Legal-63238732   172878-0002       46       CFD-#3 980496-v1    in s 1173(1) of the Companies Act 2006). Regulation 2 of The Business Contract Terms  (Assignment of Receivables) Regulations 2018 does not apply to any term of this Agreement.  36 Rights of third parties  36.1 Save as provided in clause 36.2, a person who is not a Party to this Agreement has no right under  the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.  36.2 The Parties agree that certain provisions of this Agreement confer a benefit on their respective  Related Undertakings, and that such provisions are intended to benefit, and be enforceable by,  such Related Undertakings or Covered Persons in their own right under the Contracts (Rights of  Third Parties) Act 1999, provided that the rights of any Covered Persons under this 36.2 shall  only be used as a defence to any proceedings and not to initiate proceedings.  Notwithstanding  the foregoing, under no circumstances shall any consent be required from any such Related  Undertaking or Covered Persons for the termination, rescission, amendment or variation of this  Agreement, whether or not such termination, rescission, amendment or variation affects or  extinguishes any such benefit or right.  37 Announcements and confidentiality  37.1 Subject to clause 37.2, no announcement, public filing, circular or communication (each an  Announcement) concerning the existence or content of this Agreement, the Hive Down  Agreements or any other Transaction Document shall be made by a Party (or any of its respective  Related Undertakings) without the prior written approval of the Seller (in the case of the Buyer or  a Designated Buyer) and the Buyer (in the case of the Seller or a Designated Seller) (such  approval not to be unreasonably withheld or delayed).  37.2 Clause 37.1 does not apply to:  (a) any Announcement to the extent that it is required to be made by the rules of any stock  exchange or any governmental, regulatory or supervisory body or court of competent  jurisdiction (Relevant Authority) to which the Party making the Announcement is subject,  whether or not any of the same has the force of law, provided that any Announcement shall,  so far as is practicable, be made after consultation with the other Party and after taking into  account its reasonable requirements regarding the content, timing and manner of despatch  of the Announcement in question; or  (b) any Announcement made to the European Employee Forum, any recognised trade union  or other appropriate representatives of the Employees in accordance with regulatory or  legal requirements or the terms of the relevant agreements and/or understandings with  





 






Legal-63238732   172878-0002       47       CFD-#3 980496-v1    those trade union bodies or to any employees of the Seller’s Group pursuant to the Seller’s  employee communication strategy.  37.3 Subject to clause 37.4, each Party shall treat as strictly confidential, and not disclose in any way  to anyone whomsoever, all information received or obtained as a result of entering into or  performing any Hive Down Agreement or any Transaction Document (and, in the case of the  Seller, as a result of its ownership of the Sale Shares prior to Completion) which relates to:  (a) the existence, subject matter and provisions of this Agreement, the Hive Down Agreements  or any other Transaction Document;  (b) the negotiations relating to this Agreement, the Hive Down Agreements and the other  Transaction Documents;  (c) the other Party and/or its Related Undertakings; and/or  (d) in the case of the Seller with effect only on and after Completion (and subject always to  clause 17.1(c)), the Sale Shares.  37.4 A Party may disclose information which would otherwise be confidential to the extent:  (a) required by the law of any relevant jurisdiction;  (b) required by any Relevant Authority to which the Party making the disclosure is subject,  whether or not such requirement has the force of law;  (c) disclosed to a Tax Authority where such disclosure is required for the reasonable  management of that Party’s Tax affairs;  (d) required to vest the full benefit of this Agreement in any Party;  (e) disclosure is made to its Related Undertakings and/or its Representatives, provided that  any such Related Undertaking or Representative is first informed of the confidential nature  of the information and such Related Undertaking or Representative acts in accordance with  the provisions of clause 37.3 as if it were a party hereto and that Party shall be responsible  for any breach by such Related Undertakings and/or Representatives of the provisions of  clause 37.3;  (f) in the case of the Seller only, disclosure is made as part of an information and consultation  process with appropriate representatives of the Seller’s employees;  





 






Legal-63238732   172878-0002       48       CFD-#3 980496-v1    (g) the information has come into the public domain through no fault of that Party or through  no breach by that Party of this Agreement; or  (h) the other Party has given its prior written approval to the disclosure,  provided that, in the case of sub-clauses (a) and (b), any disclosure shall, so far as is practicable,  be made only after consultation with the other Party.  38 Notices  38.1 A notice or other communication given under or in connection with this Agreement must be in  writing, in the English language, and sent by a Permitted Method to the Notified Address.  38.2 The Permitted Method means any of the methods set out in column (1) below.  A notice given  by the Permitted Method will be deemed to be given and received on the date set out in column (2)  below.  (1)  Permitted Method  (2)  Date on which notice deemed given and  received  Personal delivery When left at the Notified Address if left before  5pm on a Business Day, and otherwise on the  next Business Day  E-mail When sent if sent before 5pm on a Business  Day, and otherwise on the next Business Day  (unless the sender receives an automated  notification of non-delivery or rejection by the  recipient’s e-mail server, in which case the  notice shall be deemed not to have been given  or received)    38.3 The Notified Address of each of the Parties is as set out below:  Name of Party Address E-mail address  Marked for the  attention of:  Buyer 1770 Promontory Circle,  Greeley, Colorado  80634-9038,  United States of  America          Matthew Galvanoni  (CFO)      





 






Legal-63238732   172878-0002       49       CFD-#3 980496-v1    Name of Party Address E-mail address  Marked for the  attention of:  Copy (which shall not  constitute notice) to:  Freshfields Bruckhaus  Deringer LLP  100 Bishopsgate  London, EC2P 2SR  United Kingdom  Copy (which shall  not constitute  notice) to:    Copy (which shall not  constitute notice) to:  Graham Watson  UK Designated  Buyer  2nd Floor Building, 1  Imperial Place, Maxwell  Road, Borehamwood,  Hertfordshire WD6 1JN,  United Kingdom     Copy (which shall not  constitute notice) to:  Freshfields Bruckhaus  Deringer LLP  100 Bishopsgate  London, EC2P 2SR  United Kingdom        Copy (which shall  not constitute  notice) to:    Matthew Galvanoni  (Director)        Copy (which shall not  constitute notice) to:  Graham Watson  Irish Designated  Buyer  29 Earlsfort Terrace,  Dublin 2, D02 AY28,  Ireland    Copy (which shall not  constitute notice) to:  Freshfields Bruckhaus  Deringer LLP  100 Bishopsgate      Copy (which shall  not constitute  notice) to:    Fabio Sandri  (Director)    Copy (which shall not  constitute notice) to:  Graham Watson      





 






Legal-63238732   172878-0002       50       CFD-#3 980496-v1    Name of Party Address E-mail address  Marked for the  attention of:  London, EC2P 2SR  United Kingdom    Seller Prince’s Street,  Tralee, Co. Kerry, V92  EH11, Ireland    Copy (which shall not  constitute notice) to:  Norton Rose Fulbright  LLP  3 More London  Riverside, London,  SE1 2AQ, United  Kingdom    Copy (which shall  not constitute  notice) to:      Ronan Deasy  Allan O’Connor  (Legal)    Copy (which shall not  constitute notice) to:  Jon Perry    or such other Notified Address as any Party may, by notice to the others, substitute for its Notified  Address set out above.  39 Governing law and jurisdiction  39.1 This Agreement and any non-contractual obligations connected with it shall be governed by  English law.  39.2 The Parties irrevocably agree that all disputes arising under or in connection with this Agreement,  or in connection with the negotiation, existence, legal validity, enforceability or termination of this  Agreement, regardless of whether the same shall be regarded as contractual claims or not, shall  be exclusively governed by and determined only in accordance with English law.  39.3 The Parties irrevocably agree that the courts of England and Wales are to have exclusive  jurisdiction, and that no other court is to have jurisdiction to:  (a) determine any claim, dispute or difference arising under or in connection with this  Agreement, any non-contractual obligations connected with it, or in connection with the  





 






Legal-63238732   172878-0002       51       CFD-#3 980496-v1    negotiation, existence, legal validity, enforceability or termination of this Agreement,  whether the alleged liability shall arise under the law of England and Wales or under the  law of some other country and regardless of whether a particular cause of action may  successfully be brought in the English courts (Proceedings); and  (b) grant interim remedies, or other provisional or protective relief.  39.4 The Parties submit to the exclusive jurisdiction of the courts of England and Wales and  accordingly any Proceedings may be brought against the Parties or any of their respective assets  in such courts.  40 Service of process  40.1 The Seller hereby irrevocably authorises and appoints Kerry Foods Limited (for the attention of  Kevin Pring) of Thorpe Lea Manor, Thorpe Lea Road, Egham, Surrey, TW20 8HY (the Seller’s  Agent) to accept on its and each Designated Seller’s behalf service of all legal process arising  out of or in connection with any proceedings before the courts of England and Wales in connection  with this Agreement.  The Seller agrees that (for itself and each Designated Seller):  (a) failure by the Seller’s Agent to notify it of the process will not invalidate the proceedings  concerned; and  (b) if this appointment is terminated for any reason whatsoever, it will appoint a replacement  agent having an office or place of business in England or Wales and will notify the Buyer  of this appointment.  40.2 The Buyer hereby irrevocably authorises and appoints the UK Designated Buyer (the Buyer’s  Agent) to accept on its and each Designated Buyer’s behalf service of all legal process arising  out of or in connection with any proceedings before the courts of England and Wales in connection  with this Agreement.  The Buyer agrees that (for itself and each Designated Buyer):  (a) failure by the Buyer’s Agent to notify it of the process will not invalidate the proceedings  concerned; and  (b) if this appointment is terminated for any reason whatsoever, it will appoint a replacement  agent having an office or place of business in England or Wales and will notify the Seller of  this appointment.  IN WITNESS whereof, this Agreement has been executed the day and year first above written.    





 






Legal-63238732   172878-0002       52       CFD-#3 980496-v1    Schedule 1                                                                





 






Legal-63238732   172878-0002       53       CFD-#3 980496-v1    Schedule 2  Target Companies  Part A – Existing Companies  Company Name Rollover Limited   Date and place of incorporation 1 May 1991 (England and Wales)  Registration number 02606878  Registered office Thorpe Lea Manor, Thorpe Lea Road, Egham, Surrey, United  Kingdom, TW20 8HY   Issued share capital 10,548,999 ordinary shares of £0.01 each  Shareholder Rollover Group Limited (100%)  Directors Ronan Deasy, Trevor James Horan, Claire Salmon  Auditors PricewaterhouseCoopers  Accounting reference date 31 December      Company Name Spurway Foods Limited   Date and place of incorporation 12 August 1992 (England and Wales)  Registration number 02739017  Registered office Thorpe Lea Manor, Thorpe Lea Road, Egham, Surrey, United  Kingdom, TW20 8HY  Issued share capital 150,000 ordinary shares of £1.00 each  Shareholder  Kerry Holdings (U.K.) Limited (100%)  Directors Ronan Deasy, Trevor James Horan, Marguerite Larkin  Auditors PricewaterhouseCoopers  Accounting reference date 31 December      





 






Legal-63238732   172878-0002       54       CFD-#3 980496-v1    Company Name Noon Products Limited   Date and place of incorporation 17 September 1987 (England and Wales)  Registration number 02166664  Registered office Thorpe Lea Manor, Thorpe Lea Road, Egham, Surrey, United  Kingdom, TW20 8HY  Issued share capital 1,000,000 ordinary shares of £0.10 each  Shareholder Noon Group Limited (100%)  Directors Ronan Deasy, Trevor James Horan, Marguerite Larkin  Auditors PricewaterhouseCoopers  Accounting reference date 31 December      Company Name Oakhouse Foods Limited   Date and place of incorporation 31 May 2001 (England and Wales)  Registration number 04226390  Registered office Thorpe Lea Manor, Thorpe Lea Road, Egham, Surrey, United  Kingdom, TW20 8HY  Issued share capital 34 Ordinary A shares of £1.00 each  34 Ordinary B shares of £1.00 each  34 Ordinary C shares of £1.00 each  Shareholder Kerry Holdings (U.K.) Limited (100%)                                     Directors Ronan Deasy, Trevor James Horan, Claire Salmon  Auditors PricewaterhouseCoopers  Accounting reference date 31 December       





 






Legal-63238732   172878-0002       55       CFD-#3 980496-v1      Company Name Duffy Meats Limited   Date and place of incorporation 21 January 1982 (Republic of Ireland)  Registration number 87159  Registered office Prince’s Street, Tralee, Co. Kerry, Ireland, V92 EH11  Issued share capital 250,000 ordinary shares of €1.27 each  Shareholder Kerry Holdings (Ireland) Limited (100%)  Directors Ronan Deasy, Trevor James Horan, Claire Salmon  Auditors PricewaterhouseCoopers  Accounting reference date 31 December      Company Name Rye Valley Foods Limited   Date and place of incorporation 23 July 1986 (Republic of Ireland)  Registration number 115669  Registered office Prince’s Street, Tralee, Co. Kerry, Ireland, V92 EH11  Issued share capital 146,536 A ordinary shares of €1.27 each  107,520 B ordinary shares of €1.27 each  73,561 C ordinary shares of €1.27 each  100 voting non-participating shares of €1.27 each  Shareholder Kerry Holdings (Ireland) Limited (100%)  Directors Ronan Deasy, Trevor James Horan, Claire Salmon  Auditors PricewaterhouseCoopers  Accounting reference date 31 December       





 






Legal-63238732   172878-0002       56       CFD-#3 980496-v1    Part B – Newly-Trading Companies  Company Name Northfield Foods Limited  Date and place of incorporation 22 April 2021 (England and Wales)  Registration number 13352340  Registered office Thorpe Lea Manor, Thorpe Lea Road, Egham, Surrey, United  Kingdom, TW20 8HY  Issued share capital 2 ordinary shares of £1.00 each  Shareholders  Kerry Holdings (U.K.) Limited (100%)  Directors Ronan Deasy, Trevor James Horan, Claire Salmon  Auditors -  Accounting reference date -    Company Name Attleborough Foods Limited  Date and place of incorporation 22 April 2021 (England and Wales)  Registration number 13352332  Registered office Thorpe Lea Manor, Thorpe Lea Road, Egham, Surrey, United  Kingdom, TW20 8HY  Issued share capital 2 ordinary shares of £1.00 each  Shareholders  Kerry Holdings (U.K.) Limited (100%)  Directors Ronan Deasy, Trevor James Horan, Claire Salmon  Auditors -  Accounting reference date -    Company Name Consumer Foods Van Sales Limited  Date and place of incorporation 21 April 2021 (Northern Ireland)  Registration number NI678671  





 






Legal-63238732   172878-0002       57       CFD-#3 980496-v1    Registered office Millburn Road, Coleraine, Co Londonderry, Northern Ireland,  BT52 1QZ  Issued share capital 2 ordinary shares of £1.00 each  Shareholders  Kerry Holdings (U.K.) Limited (100%)  Directors Ronan Deasy, Trevor James Horan, Claire Salmon  Auditors -  Accounting reference date -    Company Name Consumer Foods Van Sales (Ireland) Limited  Date and place of incorporation 5 December 2019 (Republic of Ireland)  Registration number 661948  Registered office Prince’s Street, Tralee, Co. Kerry, Ireland, V92 EH11  Issued share capital 54,631 ordinary shares of €1.00 each  Shareholder Kerry Holdings (Ireland) Limited (100%)  Directors Ronan Deasy, Trevor James Horan, Claire Salmon  Auditors PricewaterhouseCoopers  Accounting reference date 31 December    





 






Legal-63238732   172878-0002       58       CFD-#3 980496-v1    Schedule 3  Properties  Part A – Owned Real Estate  Property Address Title number (if relevant)  Coolattin, Shillelagh, Co. Wicklow, Y14 PY73, Ireland Folio WW13126F   Folio WW16550F  Land to the north east of Station Road, Godley Hill, Hyde, Cheshire, SK14  3BR  GM682146  GM865732  Rookery Farm, Little Ellingham, Attleborough, Norfolk NR17 1JH UK NK131085  Carrickmacross Industrial Estate, Castleblayney Road, Carrickmacross,  Co. Monaghan, A81 E027  Folio MN11786F       





 






Legal-63238732   172878-0002       59       CFD-#3 980496-v1    Part B – Leased Real Estate  Property Address Title number (if relevant)  Carran Business Park, Enniskillen, Co. Fermanagh, Northern Ireland Folio FE94980L   Folio FE61223L   801 Oxford Avenue Trading Estate, Slough SL1 4LN  BK490112  802 Oxford Avenue Trading Estate, Slough SL1 4LN BK490114  Carrickmacross Industrial Estate, Castleblayney Road, Carrickmacross,  Co. Monaghan, A81 E027  Folio MN735L   Folio MN752L   Folio MN789L  The Noon Unit, Great Western Industrial Park, Windmill Lane, Southall,  Middlesex UB2 4NA   AGL113738  Land and buildings on the east side of Dean Way, Great Western  Industrial Park, Southall UB2 4SB  AGL65178  Unit 2 Collett Way, Great Western Industrial Estate, Southall UB2 4SE AGL332635  Unit 3 Auriol Drive, Off Oldfield Lane, Greenford, Middlesex, UB6 0TP  AGL338988  Unit 5 Stoke Mill, Stoke Mill Road, Sharnbrook, Bedfordshire  Not registered at the Land  Registry.  Unit 8 Valley Point Industrial Estate, Beddington Farm Road, Croydon, CR0  4WP  SGL710495  Unit 7 Orchard Court, Heron Road, Sowton Industrial Estate, Exeter, EX2  7LL  DN674745  Unit 21 Collingwood Court, Riverside Park, Middlesbrough, TS2 1RP Not registered at the Land  Registry.  Unit 22 Collingwood Court, Riverside Park, Middlesbrough, TS2 1RP Not registered at the Land  Registry.  Unit 23 Burnhouse Industrial Estate, Whitburn, EH4 0LQ Not registered at the Land  Registry.  Unit 102 Coed Aben Road, Wrexham Industrial Estate, Wrexham  Not registered at the Land  Registry.  4A and 4B, Phase 1 Cornbrash  Park, Bumpers Lane, Chippenham,  Wiltshire  Not registered at the Land  Registry.  





 






Legal-63238732   172878-0002       60       CFD-#3 980496-v1    Schedule 4   Seller Warranties  1 Powers and obligations of the Seller  1.1 The Seller and each Designated Seller is validly incorporated, in existence and duly registered  under the laws of its jurisdiction of incorporation and not liable to tax elsewhere.  1.2 The Seller and each Designated Seller has the right, power and authority and has taken all action  necessary to execute and deliver, and to exercise its rights and perform its obligations under, this  Agreement, each of the Hive Down Agreements and each of the other Transaction Documents  executed or to be executed by it at or before Completion, and each such document will, when  executed, constitute legal, valid and binding obligations of the Seller and each Designated Seller.  1.3 Other than to the extent relevant for the Conditions, no consent, authorisation, licence or approval  of any governmental, administrative, judicial or regulatory body, authority or organisation is  required to authorise the execution, delivery, validity, enforceability or admissibility in evidence of  this Agreement, any of the Hive Down Agreements or any of the other Transaction Documents or  the performance by the Seller and each Designated Seller of its obligations under this Agreement,  any of the Hive Down Agreements or any of the other Transaction Documents to which the Seller  and each Designated Seller is or will be a party.  1.4 Each Designated Seller has entered into an agency agreement with the Seller substantially in the  form of the Standard Transaction Agency Agreement.   2 Sale Shares  2.1 The Sale Shares, details of which are set out opposite "Issued share capital" in respect of each  Target Company in Schedule 2 (Target Companies), have been validly issued and allotted and  constitute the entire issued and allotted share capital of that Target Company and are fully paid  up.   2.2 Each Designated Seller is the sole legal and beneficial owner of the Sale Shares in the Target  Company set out opposite its name in column (2) of Schedule 1 (Designated Sellers, Designated  Buyers and Apportionment of Purchase Price), and such Designated Seller is entitled to sell and  transfer the full legal and beneficial ownership in such Sale Shares to the Designated Buyers on  the terms set out in this Agreement.  2.3 There is no Encumbrance on, over or affecting the Sale Shares, there is no agreement or  commitment to give or create any such Encumbrance and no person has made any claim to be  entitled to any right over or affecting the Sale Shares.  





 






Legal-63238732   172878-0002       61       CFD-#3 980496-v1    3 Hive down  3.1 The Seller’s Group has completed the Hive Down in accordance with the Hive Down Agreements.  4 The Target Companies   4.1 The information set out in Schedule 2 (Target Companies) is complete and accurate.  4.2 Each Target Company is validly incorporated, in existence and is a private company limited by  shares formed and registered under the laws of its place of incorporation and not liable to tax  elsewhere.  4.3 The Seller and each Target Company has the full power to conduct its business as conducted at  the date of this Agreement.  4.4 No Target Company owns any shares or debentures in the capital of, nor does any Target  Company have any beneficial interest in, any other company, nor has any Target Company  entered into any legally binding obligations to acquire any shares, debentures or beneficial  interest in any other company.  4.5 All registers required by law to be kept by each Target Company are in the possession or under  the control of the Seller’s Group, have been properly kept during the period of ownership by the  Seller’s Group, and are up to date in all material respects and contain records of the matters  which are required by applicable laws to be recorded in them.  5 Compliance with legal requirements  5.1 The Seller’s Group is conducting, and has at all times during the Relevant Period conducted, the  Business, and the business of the Existing Companies, in all material respects in accordance with  all applicable laws and regulations of the jurisdictions in which the Business and/or the Existing  Companies are engaged in business.  5.2 The Seller’s Group has obtained all material licences, permissions, consents and other approvals  (including the Authorisations) (Approvals) and made all filings required for the carrying on of the  Business, and the business of the Existing Companies in the places and in the manner in which  such activities are now carried on. So far as the Seller is aware, the Approvals are in full force  and effect, have been complied with during the Relevant Period in all material respects and there  are no circumstances existing which are likely to cause any such Approvals to be revoked or not  renewed, whether in whole or in part.  5.3 No member of the Seller’s Group has been notified in writing in the Relevant Period that any  investigation, review, enquiry, proceeding or claim in respect of the Business or other activity of  





 






Legal-63238732   172878-0002       62       CFD-#3 980496-v1    the Existing Companies is being or has been initiated, conducted or is threatened or pending by  any governmental, administrative, judicial or regulatory or other body, authority or organisation in  relation to any Financial Crime Law, the Modern Slavery Act 2015, Food Laws or any applicable  antitrust, merger control or state aid laws, and so far as the Seller is aware there are no  circumstances likely to give rise to any such investigation, enquiry, proceeding or claim.  5.4 No member of the Seller’s Group (or, in the case of Financial Crime Law, and so far as the Seller  is aware, any person who is or has been a director, officer or employee of any member of the  Seller’s Group or who is an Associated Person of the Seller’s Group) is or has at any time in the  Relevant Period engaged in any activity, practice or conduct or has taken any action or failed to  act, in each case in connection with the Business and whether directly or indirectly, which would  constitute a material offence under any Food Law or an offence under any Financial Crime Law  or the UK Modern Slavery Act 2015, or any applicable antitrust, merger control or state aid laws.  5.5 The Seller’s Group has in place, and at all times during the last three years has had in place, in  relation to the Business policies, systems, controls and procedures designed to prevent it from  violating any Financial Crime Laws and has kept accurate and fair records of its activities,  including records of training, financial records, books and accounts, in a form and manner  appropriate for a business of its size.  6 Accounting information  6.1 The Accounts:  (a) comply with the requirements of CA 2006 or CA 2014 (as applicable) and the Accounting  Standards; and  (b) give a true and fair view of the state of affairs of the Existing Companies as at the Accounts  Date and their profit or loss for the financial year ended on that date.  6.2 The Carve-Out Accounts:  (a) were properly prepared in a manner described in the sections of the Deloitte VFDD Report  headed “Executive Summary – Basis of preparation”, “Meat Platform Historical Trading”,  “Meat Platform Balance Sheet”, “Ready Meals Platform Historical Trading”, “Ready Meals  Platform Balance Sheet” and Appendices A1 and A2; and   (b) fairly present with reasonable accuracy, and do not materially misstate, the financial and/or  trading position of the Business on a pro forma basis as at the date to which they have  been prepared having regard to the purpose for which they were prepared and the fact that  they are not audited.  





 






Legal-63238732   172878-0002       63       CFD-#3 980496-v1    6.3 Since the Accounts Date and in each case other than in connection with, or as a consequence  of, the Hive Down (including the incorporation and set-up of the Newly-Trading Companies) or  this Agreement:  (a) the Seller’s Group has entered into transactions and incurred liabilities in connection with  the Business in the ordinary course of day-to-day trading operations and not otherwise;  (b) there has been no Material Adverse Change;  (c) the Business has not been materially and adversely affected by the loss of any important  customer or source of supply;  (d) no Encumbrance has been created over the Business or any of the material assets of the  Target Companies, other than in the ordinary course of business;  (e) no unlawful act of any person has depleted in any material respect the assets of the Target  Companies;  (f) no Target Company has acquired or disposed of, or agreed to acquire or dispose of, any  one or more assets (excluding Stock) in a single transaction or series of connected  transactions, where the value of such assets, exceeds £1,000,000;  (g) no Target Company has made any changes in terms of employment (excluding for the  avoidance of doubt the annual pay review), including pension funding commitments, which  taken together could increase the total staff costs of the Target Companies in aggregate  by more than £1,000,000 per annum;  (h) no Target Company has repaid any borrowing or indebtedness in advance of its stated  maturity;  (i) no Target Company has repaid, redeemed or otherwise reduced any share or loan capital  (or agreed to do so) or issued (or agreed to issue) any share or loan capital or other similar  interest (other than inter-company borrowing or indebtedness);  (j) no Target Company has declared, paid or made a dividend or other distribution;  (k) no Target Company has changed its name or altered its articles of association; and  (l) no resolution of any Target Company's shareholders has been passed (except for those  representing ordinary business at an annual general meeting).  7 The Assets  





 






Legal-63238732   172878-0002       64       CFD-#3 980496-v1    7.1 The property, rights, contracts and assets owned, leased or otherwise used by the Target  Companies, when taken together with the rights and services to be provided under the  Transaction Documents, comprise all the property, rights, contracts and assets which, are  required to carry on the Business after Completion substantially in the manner as it was carried  on at the date of this Agreement and since 1 January 2021.  7.2 The property, rights and assets owned, leased or otherwise used by the Target Companies at  Completion which are required to carry on the Business after Completion substantially in the  manner as it was carried on at the date of this Agreement and since 1 January 2021:  (a) are the property of a Target Company free from any hire or hire-purchase agreement,  agreement for payment on deferred terms, bill of sale, lien, Encumbrance or other adverse  claim and are in the possession of or under the control of or otherwise capable of access  by a Target Company; or  (b) where they are held by a Target Company under any hire purchase, conditional sale,  leasing or rental agreement, particulars of such agreements are contained in the Data  Room.  8 Trading  8.1 The Business has not during the Relevant Period manufactured, sold or supplied any goods or  products which:  (a) have been subject to a product recall or other field safety corrective action; or  (b) were removed from product lines due to non-compliance with applicable laws and  regulations in respect thereof; or  (c) have resulted in material third party claims or complaints.  8.2 No part of the Business is carried on under the agreement or consent of a third party, and there  are no sales agreements, market sharing agreements or other arrangements relating to the  Business which restrict the Seller’s Group’s freedom to operate the whole or any part of the  Business in any jurisdiction as it may decide.  8.3 The Disclosure Letter contains details of each grant or subsidy or other financial assistance  received during the Relevant Period or receivable by the Seller’s Group in respect of the Business  from any governmental, quasi-governmental or other authority or body (including in the context of  Covid-19).  





 






Legal-63238732   172878-0002       65       CFD-#3 980496-v1    8.4 There are no guarantees or similar financial support obligations binding upon any member of the  Seller’s Group (other than the Target Companies) in relation to the IED Licences held by any  Target Companies in respect of the ROI Sites.   9 Contracts  9.1 For the purposes of this paragraph 9, a Material Contract means any contract or agreement  entered into by the Seller’s Group which relates exclusively or predominantly to the Business  (including distributorship, manufacturing, licensing or management agreements) but excluding  the Excluded Contracts, and which:  (a) is of an unusual or abnormal nature, or outside the ordinary course of trading or involving  or which may involve obligations on the Seller’s Group calling for special mention; or  (b) is incapable of termination by the Seller’s Group in accordance with its terms on no more  than six months' notice; or  (c) gives any party an option to acquire or dispose of any material asset or requires another  person to do so; or  (d) is likely to result in a material loss on completion or performance; or  (e) cannot readily be fulfilled or performed by the Seller’s Group on time without undue or  unusual expenditure of money, effort or personnel; or  (f) establishes any joint venture, consortium, partnership or profit (or loss) sharing agreement  or arrangement; or  (g) involves the sale or disposal by a Target Company of any company or business where it  remains subject to any liability (whether contingent or otherwise) which is not fully provided  for in the Accounts or the Carve-Out Accounts; or  (h) is dependent on the guarantee or covenant of or security provided by any person other  than the Seller’s Group and the relevant counterparty,  and if there is any contract or agreement entered into by the Seller’s Group which is material to  the Business and any part of such contract or agreement satisfies any of limbs (a) to (h) of this  paragraph, then such contract shall also be a Material Contract.  9.2 The Data Room or Disclosure Letter contains complete, up-to-date and accurate copies of all  Material Contracts.  





 






Legal-63238732   172878-0002       66       CFD-#3 980496-v1    9.3 With regard to each of the Material Contracts:  (a) each such Material Contract is legally binding on the parties to it and is in full force and  effect; and  (b) there is no dispute in relation to any such Material Contract nor do circumstances exist  which are likely to give rise to such a dispute.  9.4 The Data Room or Disclosure Letter contains:  (a) lists, of all supplier, third party manufacturing and other trading arrangements with third  parties which involve annual income or expenditure in respect of the Business of more than  £1,000,000, whether or not such arrangements are exclusive to the Business and whether  or not formally documented (the Material Trading Arrangements);  (b) a summary of the trading arrangements with the top 5 customers of the Meats Business by  revenue during the financial year ended on 31 December 2020, representing at least 65%  of revenue in such financial year; and  (c) a summary of the trading arrangements with the top 5 customers of the Ready Meals  Business by revenue during the financial year ended on 31 December 2020, representing  at least 73% of revenue in such financial year.  9.5 There are no outstanding bids, tenders, proposals or offers which, if accepted, would constitute a  Material Contract or a Material Trading Arrangement between a Target Company and a third  party.  9.6 There is no material dispute in relation to any such Material Trading Arrangements nor, so far as  the Seller is aware, do circumstances exist which are likely to give rise to such a dispute. During  the Relevant Period, no customer of or supplier to the Business with annual income or expenditure  (as applicable) in respect of the Business of more than £1,000,000 has ceased to deal with the  Seller’s Group or has indicated in writing an intention to do so, either in whole or in part.  9.7 The Data Room contains a list of all material Related Party Agreements.  10 The Properties and other interests in land  10.1 The information set out in Schedule 3 (Properties) is complete and accurate.  10.2 A Target Company is the legal and beneficial owner of each of the Properties, which are the only  properties owned or occupied for the purpose of the Business or by a Target Company or in which  it has any interest or has any liability.  





 






Legal-63238732   172878-0002       67       CFD-#3 980496-v1    10.3 Save as disclosed in Schedule 2 (Properties), each of the Properties is free from any mortgage,  charge, rent-charge, lien, Encumbrance or other third party right in the nature of security and, so  far as the Seller is aware, no such matter exists which is capable of registration against any of  the Properties.  10.4 The relevant Target Company has vacant possession of each of the Properties vested in it and  there are no circumstances known to the Seller which would entitle or require any landlord or any  other person to exercise any powers of entry or right to forfeiture or right to take possession or  which would otherwise restrict or terminate the continued sole and exclusive possession or  occupation of each of the Properties by the relevant Target Company.  10.5 There are no insurance policies relating to any issue of title affecting any of the Properties.  10.6 In relation to the Leased Real Estate, the Seller’s Group has paid all principal rent or licence fees  which have become due and demanded.  10.7 No member of the Seller’s Group has received written notice of any disputes or claims relating to  any of the Properties.  10.8 So far as the Seller is aware, there is no planning or building regulations enforcement action or  prosecution in progress in respect of the Properties or the Carrickmacross Site nor has any  warning letter, enforcement notice or written complaint been served or threatened in writing by  any regulatory authority or third party in respect of compliance with the Planning Acts.  10.9 All material outgoings in respect of the Properties have been paid when due and demanded.  10.10 All material covenants, restrictions, stipulations and other encumbrances affecting the Properties  have been observed and performed in all material aspects.  10.11 In relation to the following properties occupied by the relevant Target Company (the Occupied  Real Estate):  





 






Legal-63238732   172878-0002       68       CFD-#3 980496-v1    (i) Carrickmacross Industrial Estate,  Castleblayney Road,  Carrickmacross, Co. Monaghan, A81  E027  a) part of Folio MN15520F shown  crosshatched green;  b) part of Folio MN705L shown shaded pink;  and  c) part of Folio MN1413F shown shaded yellow  on Map 2 annexed to the Declaration of Identity  of Peadar Stack dated 31 May 2021 located at  1.8.2.4.1 of the Data Room.   (ii) Coolattin, Shillelagh, Co. Wicklow,  Y14 PY73, Ireland  a) part of Folio WW3057F and WW18025F  shown shaded blue on Map 2 annexed to  the Declaration of Identity of Peadar Stack  dated 31 May 2021 located at 1.8.5.5.1 of  the Data Room     the Seller warrants:  (a) there are no insurance policies relating to any issue of title affecting the Occupied Real  Estate.  (b) no member of the Seller’s Group has received written notice of any disputes or claims  relating to the Occupied Real Estate.  (c) all material outgoings in respect of the Occupied Real Estate insofar as they relate to the  relevant Target Company have been paid when due and demanded  (d) to the best of the Seller’s knowledge, information and belief the relevant Target Companies  have been in occupation and sole and exclusive possession of the Occupied Real Estate  to the exclusion of all others for in excess of 15 years and no notice, dispute or claim  adverse to the relevant Target Company’s rights, title and interest in the Occupied Real  Estate has been made against the relevant Target Company.     11 Environmental Matters  11.1 The Seller’s Group is conducting, and has within the Relevant Period conducted, the Business in  all material respects in accordance with all Environmental Laws affecting the Business.  11.2 All material Environmental Permits and Environmental Instruments required for any activities of  the Business have been obtained and, so far as the Seller is aware, and are being complied with  in all material respects and are in full force and effect.  11.3 So far as the Seller is aware, there are no current circumstances which might give rise to any  material non-compliance with, material contravention of, or material liability under any  





 






Legal-63238732   172878-0002       69       CFD-#3 980496-v1    Environmental Laws or Environmental Permits, or which might give rise to any Environmental  Claim.  11.4 No member of the Seller’s Group is currently and has not within the Relevant Period been involved  in any Environmental Claim (whether as claimant, defendant or otherwise) in connection with the  Business and, so far as the Seller is aware, no Environmental Claim has been threatened in  writing against any member of the Seller’s Group in connection with the Business.  11.5 So far as the Seller is aware, there is no pollution or contamination of the Environment on, in, at,  under or migrating to or from the Properties, which is reasonably likely to give rise to any material  liability, or obligation or duty requiring material expenditure, under Environmental Laws.  11.6 So far as the Seller is aware, no Target Company bears any liability with respect to the  groundwater contamination present at, in or under the Windmill Lane Site (as detailed in the ”EHS  assessment” report prepared by ERM and included in the Data Room with reference number  1.3.1.10), and all Remedial Works which is or will be required in connection with such  contamination is the responsibility of third parties.  11.7 No claims against the Seller’s Group have been made by any person during the previous ten  years with respect to personal injury, death, or other impairment or risk to the health of any person  as a result of their exposure to asbestos or asbestos-containing materials, to the extent that such  exposure occurred at any of the Properties or in connection with the operations of the Business  or of the Target Companies, in each case prior to Completion.  12 Employees  12.1 For the purposes of this paragraph 12, Employment Legislation means legislation applying in  the United Kingdom and/or the Republic of Ireland (as applicable) affecting contractual or other  relations between employers and their employees or workers or any employee representative  which is enforceable by any Target Company, any Employee or worker or employee  representative.  12.2 So far as the Seller is aware, the relevant member of the Seller’s Group has in relation to each of  its Employees (and, insofar as relevant, in relation to each of its former, prospective and future  employees) complied in all material respects with all material obligations under Employment  Legislation, agreements (written, verbal and/or by custom and practice) with employee  representatives and trade unions and terms and conditions of employment.  12.3 True, up-to-date and complete copies of all agreements relating to the provision of agency  workers whose services are required to support the normal operation of the Business as at the  





 






Legal-63238732   172878-0002       70       CFD-#3 980496-v1    date of this Agreement where the number of agency workers supplied under the relevant  agreement is over 50 at any one time, are contained in the Data Room.   12.4 True, up-to-date and complete copies of the anonymised Employment Contracts of the Senior  Employees and a representative sample of template Employment Contracts of other Employees  and any material handbooks, policies and other documents currently in force governing the terms  of employment of the Employees, the terms of all share incentive, share option, profit sharing,  bonus, Transaction-related bonus, or other incentive schemes applicable to any of the Employees  (in addition to the details (including award and vesting schedule in each case) of any specific  outstanding awards made under any such incentive schemes to Employees) have been  Disclosed.   12.5 Save as Disclosed as at the date of this Agreement no Employee is in receipt of any income  protection payments under a relevant policy provided by the Seller.  12.6 The individuals whom the Seller acting reasonably has determined to be Central Services  Employees as at the date of this Agreement have been identified (by role and reference number)  on the employee census data which has been Disclosed.   12.7 Since the Accounts Date, no material change (other than changes made in the ordinary course  of business, to effect the Hive Down, to effect the movement of the Central Services Employees  to the Target Companies or as a result of a change in role or career advancement) has been  made or has been proposed in the terms of employment or engagement of any material category  of Employees or any Senior Employee.  12.8 There are no investigations existing, pending or threatened in writing affecting any Target  Company which involve any material category or number of Employees or any Senior Employee  by any governmental or statutory body in respect of employment matters.  12.9 There are no amounts due to or in respect of any Employee, worker or former employee or former  worker which are in arrears and unpaid other than salary, wages, commission or pension for the  month current at the date of this Agreement or in respect of annual bonus payments or the  reimbursement of ordinary course business expenses.   12.10 Since the Accounts Date, no Senior Employee:  (a) has given notice or is under notice of dismissal;  (b) has been off sick for any period which has resulted in such Senior Employee having been  off sick for a period of 40 days or more in any six-month period within the Relevant Period  





 






Legal-63238732   172878-0002       71       CFD-#3 980496-v1    (whether or not consecutive) or is receiving or is due to receive payment under any  sickness or disability or permanent health insurance scheme: or  (c) is the subject of any current disciplinary warning or procedure or has raised a grievance  under any grievance procedure or a protected disclosure under any whistleblowing policy  which has not been resolved in accordance with any relevant grievance procedure or  whistleblowing policy.  12.11 Neither this Agreement nor Completion will cause any Target Company or any Designated  Buyer  to be liable to a Senior Employee for any payment or any other benefit including any transaction  bonus, or material enhancement or improvement to his/her remuneration and/or terms and  conditions of employment.  12.12 Other than in connection with, or as a result of, the Hive Down, in the 24 months prior to the date  of this Agreement in relation to the Business or to any of the Employees:  (d) no Target Company has given notice of any redundancies to any government department  pursuant to section 193 Trade Union and Labour Relations (Consolidation) Act 1992  (TULRCA 1992), Article 221 of the Employment Rights (Northern Ireland) Order 1996  or  the Protection of Employment Acts, 1977 to 2014; and  (e) there has not been any relevant transfer as defined in the Transfer Regulations.  12.13 The Data Room contains details of any enhanced redundancy payment scheme and any current  custom and practice of making enhanced redundancy payments on redundancy operated in  respect of the Central Services Employees or by the Target Companies during the Relevant  Period.  12.14 There is no existing, pending or threatened in writing material industrial or trade dispute (official  or unofficial) or negotiation between any member of the Seller's Group and any material number  or category of the Employees or any trade union or other organisation formed for a similar purpose  or any other employee representative(s).  12.15 The Data Room contains full and up-to-date particulars of all existing works councils and collective  agreements, arrangements and understandings, in each case whether binding or not with any  trade union, staff association or other body representing any Employee or which may affect any  Employee.   12.16 Each Employee is legally permitted, or has the required authorisation, to work in the jurisdiction  and location he / she is working in.  





 






Legal-63238732   172878-0002       72       CFD-#3 980496-v1    12.17 Insofar as any member of the Seller's Group has availed itself of any government funding, tax  relief, grant or other governmental support relating to COVID-19, in relation to the Employees, the  terms of such schemes have been adhered to in all material respects and no repayment or other  material liability is owed by any of the Target Companies, and the Target Companies have not  been notified in writing that any such liability will be owned in the future, in respect of any such  scheme.  12.18 The Data Room contains details of all material claims pending or threatened in writing against  any Target Company:  (a) by any current Employee or former director or employee of any Target Company in respect  of an accident or injury which is not covered by insurance; or  (b) by any current Employee or former director or employee of any Target Company in relation  to their terms and conditions of employment, appointment or termination thereof.  13 Pensions  13.1 Save for the UK DC Section, the ROI Pension Schemes and the UK Life Assurance Arrangement  and the PHI Arrangements neither the Seller’s Group in relation to the Employees, nor the Target  Companies in relation to the Employees, are under any legal obligation to provide or contribute  towards any pension, lump sum, death, or ill health benefits to any of the present or former  Employees engaged in the Business or their dependants, and no proposal or announcement has  been made as to the introduction of any such arrangement.  13.2 The only benefits payable under the UK DC Section are “money purchase” benefits (as defined  in section 181(1) of the Pension Schemes Act 1993) and the only benefits payable under the ROI  DC Plan are those which would be capable of being paid under a "defined contribution scheme"  (as defined in section 2 of the Irish Pensions Act 1990).  13.3 Details of the contribution rates payable to the UK DC Section and the ROI DC Plan have been  disclosed to the Buyer.  13.4 All employer and employee contributions and premiums due to be deducted and remitted or paid  by a Target Company as at the date of this Agreement to the UK DC Section, the ROI DC Plan  and the UK Life Assurance Arrangement in respect of an Employee have been deducted and  remitted or paid when due.   13.5 Any benefits payable on the death of an Employee whilst in employment (other than a return of  an employee’s own contributions to the UK DC Section or the ROI DC Plan as applicable, and  





 






Legal-63238732   172878-0002       73       CFD-#3 980496-v1    contributions paid in respect of him) are fully insured and all premiums due to the insurance  company have been paid.   13.6 In relation to Employees located in the United Kingdom, the Seller’s Group and the Target  Companies have complied in all material respects with their duties to employees under the  Pensions Act 2008 and utilises the UK DC Section to meet its employer duties under that Act.  13.7 In  relation to Employees, the Seller’s Group and the Target Companies have complied in all  material respects with all applicable legal obligations in respect of (i) the PHI Arrangements in  relation to Employees who are entitled to PHI benefits; and (ii) so far as the Seller is aware, the  provision of retirement, death and disability benefits more generally.  13.8 In relation to the Employees, so far as the Seller is aware, there is no material proceeding or claim  (other than routine claims for benefits) outstanding, pending or threatened against:  (a) the trustees or administrators of the UK DC Section;   (b) the trustees or administrators of the ROI DC Plan; or  (c) any Target Company,  in connection with the UK DC Section, the ROI DC Plan or the provision of any pension, lump  sum, death, or ill health benefits.    13.9 There are no “excluded employees” (within the meaning given to that term in Section 121 of the  Pensions Act 1990 (as amended) of Ireland (Section 121)) in respect of whom a Target Company  is obliged to provide access to a standard personal retirement savings account in accordance  with Section 121.  13.10 None of the Employees or former employees of any Target Company has any right to benefits  under or in relation to an occupational pension scheme which are not “old-age, invalidity or  survivors’ benefits” (as referred to in Article 4(a) of the EU Acquired Rights Directive 2001/23/EC  and any local regulations implementing that Directive).  13.11 On Completion, the Target Companies will immediately cease to participate in and will cease to  have any liability (whether relating to contributions (except for contributions deducted or falling  due prior to Completion but not remitted to the UK DC Section and the ROI Pension Schemes),  expenses or under any trustee indemnity) to the UK DC Section and the ROI Pension Schemes,  and any Employees who at Completion have any entitlements to retirement benefits under the  UK DC Section and the ROI Pension Schemes shall as from Completion become entitled to fully  preserved benefits under the UK DC Section and the ROI Pension Schemes.  





 






Legal-63238732   172878-0002       74       CFD-#3 980496-v1    13.12 A copy of:  (a) the governing provisions of the UK DC Section, UK DB Section and the ROI DC Plan;   (b) an extract of the most recent “scheme return” (as that term is defined in the Pensions Act  2004) which was submitted to the UK Pensions Regulator prior to this Agreement in respect  of the UK DB Section on behalf of the trustee of the Kerry Retirement Benefits Scheme and  which states the only statutory employers in relation to the UK DB Section are Kerry Foods  Limited and Kerry Ingredients (UK) Limited; and  (c) a deed dated 2 April 2017 between Kerry Foods Limited, Kerry Ingredients (UK) Limited,  the trustees of the Kerry Retirement Benefits Scheme, Noon Products Limited, Spurway  Foods Limited and others in relation to a flexible apportionment arrangement relating to the  Kerry Retirement Benefits Scheme,   are contained in the Data Room.  13.13 No Target Company is, or has ever been, a participating or statutory employer in the UK DB  Section.  13.14 The UK DC Section is fully segregated from the UK DB Section and is treated as a separate  scheme for statutory purposes.  13.15 No contribution notice or financial support direction under the Pensions Act 2004 has been issued  to any Target Company in respect of  the UK DB Section and so far as the Seller is aware there  is no fact or circumstance likely to give rise to any such notice or direction.  14 Insurance  14.1 A list of the key insurance policies maintained by the Seller’s Group in respect of the Business  and currently in force (the Policies), together with details of all claims under the Policies in excess  of £1,000,000 made under any policy of insurance in respect of the Business in the Relevant  Period, are Disclosed in the Data Room. Except as Disclosed in the Data Room in accordance  with this paragraph 14.1, there are no outstanding claims in excess of £1,000,000 under any  Policy maintained by the Seller’s Group, or circumstances which may give rise to any such  claim(s).   14.2 All premiums due on the Policies have been paid and no member of the Seller’s Group has  received written notification that such Policies are invalid or unenforceable for any reason insofar  as they relate to the Business.  





 






Legal-63238732   172878-0002       75       CFD-#3 980496-v1    14.3 The Seller’s Group has at all times during the Relevant Period fully complied with all applicable  statutory requirements to maintain sufficient insurance coverage in respect of the Business.   15 Intellectual Property Rights  15.1 Details of the following are Disclosed in the Data Room:  (a) all Intellectual Property Rights:  (i) for which any Target Company is or has applied to be registered as the proprietor;  or  (ii) that are owned by a member of the Retained Kerry Group and used or held for use  in the Business;  (b) all material unregistered Intellectual Property Rights owned by any Target Company or by  a member of the Retained Kerry Group and used or held for use in the Business; and  (c) all material licences of Intellectual Property Rights used in the Business to or from any third  party to which any Target Company, or any member of the Retained Kerry Group, is a party  (IP Licences),  (together, the Business IP).  15.2 All rights and interests in the Business IP:  (a) are legally and beneficially owned solely by a Target Company or a member of the Retained  Kerry Group or are validly licensed to a Target Company or member of the Retained Kerry  Group; and  (b) are not subject to any claim or opposition from any person as to title, validity or  enforceability that would have a material adverse effect on the Business.  15.3 The Intellectual Property Rights owned by the Target Companies, or by a member of the Retained  Kerry Group and used in the Business, are not subject to any Encumbrance.   15.4 All application and renewal fees payable in respect of the Intellectual Property Rights owned by,  or applied for by, any Target Company or by any member of the Retained Kerry Group and used  in the Business have been paid.   15.5 So far as the Seller is aware:  





 






Legal-63238732   172878-0002       76       CFD-#3 980496-v1    (a) none of the operations of the Target Companies or the Business is infringing, nor has in  the Relevant Period infringed, the Intellectual Property Rights of any other person and no  third party has disputed the right of any Target Company or member of the Retained Kerry  Group to use the Business IP; and  (b) no third party is infringing, nor has in the Relevant Period infringed, the Intellectual Property  Rights of any Target Company or any member of the Retained Kerry Group in relation to   the Business and no Target Company or member of the Retained Kerry Group in relation  to the Business has disputed the right of a third party to use the Intellectual Property Rights  owned or used by the third party,  where, in either case, such infringement would be material to the Business.  15.6 So far as the Seller is aware, the IP Licences are valid and binding and each party thereto has  complied with their terms in all material respects and they are not the subject of any claim, dispute  or proceeding, pending or threatened in writing where such claim or dispute would have a material  adverse effect on the Business.  15.7 With the exception of the Retained Name and the Intellectual Property Rights that shall be  provided to the Target Companies under the Transitional Services Agreement (and any  Intellectual Property Rights which relate to Excluded Services as defined in the Transitional  Services Agreement), Meat Free Substitute Technology Licence and Brand Licences, the  Retained Kerry Group does not make available to the Business, nor has made available in the  Relevant Period, any other Intellectual Property Rights that are owned by the Retained Kerry  Group and that are material to the Business.  15.8 So far as the Seller is aware, the Intellectual Property Rights that are (a) owned by the Target  Companies; (b) expressly licensed in writing to the Target Companies; (c) acquired by the Target  Companies under the IP Assignment Agreements and Hive Down IP Assignment Agreements;  and (d) made available to the Target Companies under the Transitional Services Agreement,  together comprise all of the Intellectual Property Rights that are required to carry on the Business  after Completion substantially in the manner as it was carried on at the date of this Agreement  and since 1 January 2021.  15.9 All Intellectual Property Rights and Know-how that, pre-Hive-Down, were owned by the Seller  Group (other than the Existing Companies) and used exclusively in connection with the Business  transferred to the Newly-Trading Companies as part of the Hive Down (other than the Excluded  Intellectual Property Rights (as such term is defined in the Hive Down Agreements)).    16 Information Technology  





 






Legal-63238732   172878-0002       77       CFD-#3 980496-v1    16.1 So far as the Seller is aware, all of the Information Technology used in the Business is either  owned by, or validly licensed, leased or supplied under contracts to a Target Company or a  member of the Seller’s Group (other than a Target Company). Details of all material Information  Technology used by the Business are Disclosed in the Data Room.  16.2 So far as the Seller is aware, all material contracts in respect of the material Information  Technology used by the Business are valid and binding and  each party thereto has complied  with their terms in all material respects and they are not the subject of any claim, dispute or  proceeding, pending or threatened in writing where such claim or dispute would have a material  adverse effect on the Business.  16.3 All material Information Technology used by the Business is functioning, and has throughout the  Relevant Period functioned, without any problems or defects that would have or have had (as  applicable) a material adverse effect on the Business.  16.4 So far as the Seller is aware, there have not in the Relevant Period been any logical or physical  intrusions to the Information Technology used by the Business resulting in the loss or  unauthorised access to any material data or material Know-how relating to the Business.  16.5 The Information Technology used by the Business includes up-to-date anti-virus software and  security and back-up systems designed to preserve the availability, security and integrity of the  material Information Technology used by the Business and any material data or Know-how  relating to the Business stored on such Information Technology.  16.6 So far as the Seller is aware, the Information Technology that is (i) owned by the Target  Companies; (ii) licensed, leased or supplied to the Target Companies under contracts with third  parties; and (iii) made available to the Target Companies under the Transitional Services  Agreement, together comprise all the Information Technology that is required to carry on the  Business after Completion substantially in the manner as it was carried on at the date of this  Agreement and since 1 January 2021.  17 Data protection  17.1 The Seller’s Group and Target Companies are conducting the Business in all material respects  in accordance with the Data Protection Legislation.  





 






Legal-63238732   172878-0002       78       CFD-#3 980496-v1    17.2 No Personal Data Breaches in respect of the Business have been reported to the relevant  Supervisory Authority in the Relevant Period.  17.3 In connection with the Business, no member of the Seller’s Group has in the Relevant Period  received any formal written notice of any complaint or claim made by a Data Subject or any  sanctions or enforcement action imposed by a Supervisory Authority.  17.4 The Target Companies, and the Seller’s Group in connection with the Business, have taken  appropriate and proportionate measures which are intended to manage the risks posed to the  security of the IT and Personal Data (including the ability to resist action that compromises the  availability, authenticity, integrity or confidentiality of data or outputs, or a material systems failure,  data loss or theft, unauthorised access, malware attack or other security breach or failure (each  a Security Incident)).  17.5 In connection with the Business, no member of the Seller’s Group has in the Relevant Period  been the subject of a Security Incident which has had a material impact on the continuity of the  operations of the Business.  18 Litigation  18.1 Apart from the collection of debts in the ordinary course of the Business (involving debts of not  more than £1 million in any individual case or £5 million in aggregate) or ordinary course litigation  involving employees or former employees, no Target Company, nor member of the Seller’s Group  in connection with the Business, is engaged in any capacity in any material litigation, arbitration,  conciliation, mediation, prosecution or other legal proceedings or in any proceedings or hearings  before any statutory or governmental body (including regulators), department, board or agency;  and so far as the Seller is aware, no such matters have been threatened in writing.  18.2 There is no outstanding judgment, order, decree, arbitral award or decision of any court, tribunal,  arbitrator or governmental agency against a Target Company, or against a member of the Seller’s  Group in connection with the Business, which is material in the context of the Business.  19 Insolvency  19.1 No Target Company:  (a) is insolvent or unable to pay its debts;  (b) has ceased to carry on business, stopped payment of its debts or any class of them or  entered into any compromise or arrangement in respect of its debts or any class of them,  nor has any step been taken to do any of those things; or  





 






Legal-63238732   172878-0002       79       CFD-#3 980496-v1    (c) has been dissolved or entered into liquidation, administration, moratorium, administrative  receivership, receivership, a voluntary arrangement, a scheme of arrangement with  creditors, any analogous or similar procedure in any jurisdiction or any other form of  procedure relating to insolvency, reorganisation or dissolution in any jurisdiction, nor has a  petition been presented or other step been taken by any person with a view to any of those  things.  19.2 The Seller has not:  (a) become insolvent or unable to pay its debts;  (b) ceased to carry on business, stopped payment of its debts or any class of them or entered  into any compromise or arrangement in respect of its debts or any class of them, nor has  any step been taken to do any of those things, where any such actions would affect its  ability to enter into or perform its obligations under this Agreement, any of the Hive Down  Agreements or any of the other Transaction Documents to which the Seller is or will be a  party; or  (c) been dissolved or entered into liquidation, administration, moratorium, administrative  receivership, receivership, a voluntary arrangement, a scheme of arrangement with  creditors, any analogous or similar procedure in any jurisdiction or any other form of  procedure relating to insolvency, reorganisation or dissolution in any jurisdiction, nor has a  petition been presented or other step been taken by any person with a view to any of those  things, where, in any case, such action would affect its ability to enter into or perform its  obligations under this Agreement, any of the Hive Down Agreements or any of the other  Transaction Documents to which the Seller is or will be a party.  20 Tax  Accounts and Tax  20.1 All liabilities, whether actual, deferred, contingent or disputed, of each Target Company for Tax  as at the Account Dates are provided for in accordance with relevant accounting standards or (as  appropriate) disclosed in the Accounts.  Since the Accounts Date, no Target Company has been  involved in any transaction (other than the Hive Down) which has given or may give rise to a  material liability to Tax on any Target Company (or would have given or might give rise to such a  liability but for the availability of any Relief) other than Tax in respect of normal trading income or  





 






Legal-63238732   172878-0002       80       CFD-#3 980496-v1    receipts of the Target Company concerned arising from transactions entered into by it in the  ordinary course of business.  20.2 All material Tax or amounts in respect of Tax due and payable by any Target Company prior to  the date hereof has been paid in full.   Tax returns, corporation tax self assessment and records  20.3 All returns, computations, notices, accounts, statements, reports or information which ought to  have been made by or in respect of each Target Company for any Tax purpose, have been  properly and punctually submitted by each Target Company to the relevant Tax Authority; all such  returns, computations, notices, accounts, statements, reports and information supplied to any Tax  Authority are up to date, correct in all material respects and were made on a proper basis.  Withholdings  20.4 Each Target Company has made all deductions and retentions of or on account of Tax as it was  or is obliged or is entitled to make and has accounted to the Tax Authority concerned for any such  deductions and retentions for which it was obliged to account.  Disputes  20.5 No Target Company is involved in any current dispute with any Tax Authority.  No Target  Company is, or has in the six years prior to the date of this Agreement been, the subject of any  review, audit, investigation or non-routine visit by any Tax Authority and, so far as the Seller is  aware, there is no such review, audit, investigation or non-routine visit planned by any Tax  Authority and, so far as the Seller is aware, there are no facts which might cause such an  





 






Legal-63238732   172878-0002       81       CFD-#3 980496-v1    investigation, enquiry, audit or non-routine visit to be instituted or which may be the subject of any  dispute with any Tax Authority.  Penalties and interest  20.6 No Target Company is liable, nor has been liable within six years before the date of this  Agreement, to pay any penalty, fine, surcharge or material amount of interest in connection with  any Tax.  Employees  20.7 Each Target Company has properly operated the PAYE and National Insurance systems or  equivalent social security contributions deducting and accounting for Tax and maintaining all such  records, in each case as required by applicable law or regulation or any relevant Tax Authority.  Special arrangements with any Tax Authority  20.8 No Tax Authority has, in the last six years, operated any concession, agreement or other formal  or informal arrangement with any Target  Company which is not based on relevant legislation or  published practice.  Residence  20.9 Each Target Company is, and has at all times, been resident in its jurisdiction of incorporation for  tax purposes and is not and has not been treated as resident or liable to pay or register for Tax  in any other jurisdiction for any Tax purposes (including for the purposes of any double taxation  agreement).  VAT  20.10 Each Target Company is a registered and taxable person for the purposes of VATA or VATCA  (as applicable), has complied in all material respects with VATA or VATCA (as applicable) and all  





 






Legal-63238732   172878-0002       82       CFD-#3 980496-v1    orders, regulations, provisions, directions or other conditions made or imposed thereunder or  under any law relating to VAT.  20.11 No Target Company has applied to HM Revenue and Customs under section 43 VATA or section  43B VATA, or to the Revenue Commissioners of ROI (as applicable), to be treated as nor have  two or more such companies been treated as a group for VAT purposes.  Groups  20.12 No Target Company is or could become liable to Tax by reason of the failure of any person other  than another Target Company to pay or discharge when due any Tax properly assessed on that  other person.  20.13 In the last six years, all material transactions between any Target Companies, or between (on the  one hand) any Target Company and (on the other hand) the Seller or any other company that has  been treated as a member of the same group as the Seller for any Tax purpose, have been on  arm’s length terms.  Stamp duty, stamp duty reserve tax and stamp duty land tax  20.14 All documents in the possession of any Target Company, to the production of which any Target  Company is entitled or which establish or are necessary to establish the title of any Target  Company to an asset and, in each case, which attract stamp or transfer duty in any jurisdiction  have been duly stamped.  Implementation of this Agreement   20.15 The entry into and the implementation of the transactions contemplated by this Agreement will  not result in: (i) any Target Company becoming liable to Tax by reason of that or any other Target  Company leaving the Seller’s Group for any Tax purpose; or (ii) any deemed disposal or  realisation by any Target Company of any asset or liability for any Tax purposes; or (iii) the  withdrawal, postponement, restriction or loss of any Buyer Relief (as defined in the Tax  Covenant).  Section 980(8) of the TCA  20.16 No Sale Shares derive, directly or indirectly, their value or the greater part of their value from the  assets specified in paragraphs (a) to (c) of Section 980(2) of the TCA and are not shares to which  paragraph (e) of the said Section 980(2) of the TCA applies.    





 






Legal-63238732   172878-0002       83       CFD-#3 980496-v1    Schedule 5  Buyer Warranties  1 The Buyer and each Designated Buyer is validly incorporated, in existence and duly registered  under the laws of its jurisdiction of incorporation and not liable to tax elsewhere.  2 The Buyer and each Designated Buyer has the right, power and authority and has taken all action  necessary to execute and deliver, and to exercise its rights and perform its obligations under, this  Agreement and each of the other Transaction Documents executed or to be executed by it at or  before Completion, and each such document will, when executed, constitute legal, valid and  binding obligations of the Buyer and each Designated Buyer.   3 Other than to the extent relevant for the Conditions, no consent, authorisation, licence or approval  of any governmental, administrative, judicial or regulatory body, authority or organisation is  required to authorise the execution, delivery, validity, enforceability or admissibility in evidence of  this Agreement or any of the other Transaction Documents or the performance by the Buyer or  any Designated Buyer of its obligations under this Agreement or any of the other Transaction  Documents to which the Buyer or any Designated Buyer is or will be a party.  4 Each Designated Buyer has appointed the Buyer as its agent under Part B of Schedule 10  (Agency provisions) or has otherwise entered into an agency agreement with the Buyer  substantially in the form of the Standard Transaction Agency Agreement.   5 The Buyer and each Designated Buyer has not:  (a) become insolvent or unable to pay its debts.  (b) ceased to carry on business, stopped payment of its debts or any class of them or entered  into any compromise or arrangement in respect of its debts or any class of them, nor has  any step been taken to do any of those things, where any such actions would affect its  ability to enter into or perform its obligations under this Agreement or any of the other  Transaction Documents to which the Buyer or each Designated Buyer is or will be a party.  (c) been dissolved or entered into liquidation, administration, moratorium, administrative  receivership, receivership, a voluntary arrangement, a scheme of arrangement with  creditors, any analogous or similar procedure in any jurisdiction or any other form of  procedure relating to insolvency, reorganisation or dissolution in any jurisdiction, nor has a  petition been presented or other step been taken by any person with a view to any of those  things, where, in any case, such action would affect its ability to enter into or perform its  





 






Legal-63238732   172878-0002       84       CFD-#3 980496-v1    obligations under this Agreement or any of the other Transaction Documents to which the  Buyer or each Designated Buyer is or will be a party.  6 The Buyer and each Designated Buyer has not been notified in writing in the last three years that  any investigation, review, enquiry, proceeding or claim in respect of the Buyer or a Designated  Buyer is being or has been initiated, conducted or is pending by any governmental, administrative,  judicial or regulatory or other body, authority or organisation in relation to any Financial Crime  Law or the UK Modern Slavery Act 2015 and, so far as the Buyer is aware, there are no  circumstances likely to give rise to any such investigation, enquiry, proceeding or claim.  7 To the extent relevant to the transaction contemplated by this Agreement, each of the Buyer and  each Designated Buyer is conducting, and has at all times during the Relevant Period conducted,  its business in all material respects in accordance with all applicable laws and regulations of the  United Kingdom and the Republic of Ireland.  





 






Legal-63238732   172878-0002       85       CFD-#3 980496-v1    Schedule 6  Limitations on the liability of the Seller  1 Financial limits  Minimum claims  1.1 The Seller shall not be liable in respect of any Seller Warranty Claim or any Tax Covenant Claim  unless the amount claimed by the Buyer exceeds [***].  Aggregate minimum claims  1.2 The Seller shall not be liable in respect of any Seller Warranty Claim unless the aggregate amount  of all Seller Warranty Claims for which the Seller would be liable but for this paragraph 1.2  exceeds in aggregate [***], in which case the Seller shall (subject to the other provisions of this  Agreement) be liable for the whole amount claimed and not only the excess.  1.3 For the avoidance of doubt, the Buyer may give notice of any single Seller Warranty Claim or Tax  Covenant Claim in accordance with and for the purpose of paragraph 2.1, irrespective of whether,  at the time the notice is given, the amount set out in paragraph 1.2 has been exceeded.  Maximum liability  1.4 The Seller's maximum aggregate liability:  (a) in respect of all Seller Warranty Claims (other than Fundamental Warranty Claims and Tax  Warranty Claims) shall not exceed [***];  (b) in respect of (i) all Tax Claims; (ii) all Indemnity Claims; and (iii) all Relevant Claims under  paragraph 1.4(a) above, shall not exceed [***]; and  (c) in respect of all Relevant Claims (including those claims under paragraphs 1.4(a) and 1.4(b)  above) shall not exceed an amount equal to the Purchase Price (ignoring any adjustment  pursuant to clause 4.13).   Relevant Costs  1.5 For the purposes of paragraph 1.4 only, the amount of any costs, expenses and other amounts  (including interest) claimed by the Buyer, or ordered or determined to be payable to the Buyer  (together with any irrevocable VAT thereon) under, in connection with or arising out of any  Relevant Claim (or any judgment, order or award) (Relevant Costs) shall be included in the sums  





 






Legal-63238732   172878-0002       86       CFD-#3 980496-v1    referred to therein as a liability in respect of the Relevant Claim.  For the avoidance of doubt,  Relevant Costs shall be excluded from the sums referred to in paragraphs 1.1 and 1.2.  Conversion Rate  1.6 If any monetary sum to be taken into account for the purposes of determining the amount of any  Relevant Claim is expressed in a currency other than pounds sterling (GBP), the amount of that  monetary sum shall be translated into sterling at the Conversion Rate at the close of business in  London on the Business Day immediately preceding the date of the notice of that Relevant Claim.  2 Time limits  Notice requirements  2.1 If the Buyer becomes aware of a matter or circumstance which gives rise to or may give rise to a  Relevant Claim (other than a Tax Claim which shall be dealt with in accordance with paragraph  4(a) of Schedule 2 to the Tax Covenant), the Seller shall not be liable in respect of it unless the  Buyer provides notice to the Seller in accordance with the provisions of this Agreement specifying  that matter or circumstance in reasonable detail (including, where practicable, the Buyer's  reasonable estimate of the amount of such Relevant Claim) as soon as reasonably practicable  after the Buyer became aware of that matter or circumstance and in any event within the time  periods set out in paragraph 2.2.  2.2 The Seller shall not be liable in respect of a Relevant Claim unless the Buyer has given notice in  accordance with paragraph 2.1:  (a) in the case of a Tax Claim, by no later than the earlier of:  (i) the expiry of the relevant statute of limitations for the Tax Claim in question; and  (ii) the date falling seven years after the Completion Date;  (b) in the case of:  (i) a claim under the Seller Warranties relating to Environmental matters contained in  paragraph 11 of Schedule 4; or  (ii) a claim under the Fundamental Warranties,  by no later than the date falling three years after the Completion Date;   





 






Legal-63238732   172878-0002       87       CFD-#3 980496-v1    (c) in the case of a claim under the Seller Warranties relating to Pensions matters contained  in paragraph 13.1 of Schedule 4, by no later than the date falling six years after the  Completion Date; and   (d) in the case of any other Relevant Claim, by no later than the date falling 18 months after  the Completion Date.  Commencement of proceedings  2.3 The Seller's liability in respect of any Relevant Claim (other than a Tax Claim) shall terminate (if  such claim has not been previously remedied, satisfied or withdrawn) on the date falling 12  months after the date it was first notified to the Seller in accordance with paragraph 2.1 of this  Schedule unless court proceedings in respect of it have been commenced within such period  except:  (a) where the Relevant Claim relates to a contingent liability, in which case it shall be deemed  to have been withdrawn unless court proceedings in respect of it have been commenced  by being both issued and served within 12 months of it having become an actual liability;  or  (b) where the Relevant Claim is a Seller Warranty Claim of which notice is given for the  purposes of paragraph 2.1 at a time when the amount set out in paragraph 1.2 has not  been exceeded, in which case it shall be deemed to have been withdrawn unless court  proceedings in respect of it have been commenced by being both issued and served within  12 months of the date of any subsequent notification to the Seller pursuant to paragraph 2.1  of one or more Seller Warranty Claims which result(s) in the total amount claimed in all  Seller Warranty Claims notified to the Seller pursuant to paragraph 2.1 exceeding the  amount set out in paragraph 1.2 for the first time.  For these purposes, court proceedings shall mean any proceedings, suit or action before the  courts of England and Wales and court proceedings shall not be deemed to have been  commenced unless they have been both issued and validly served on the Seller in accordance  with relevant procedural rules.  3 Remediable breaches  Where the matter or default giving rise to a Relevant Claim (other than a Tax Covenant Claim) is  capable of remedy, the Seller will not be liable for such Relevant Claim unless the matter or default  is not remedied to the reasonable satisfaction of the Buyer within 20 Business Days after the date  on which notice of such Relevant Claim is given to the Seller pursuant to paragraph 2.1 of this  





 






Legal-63238732   172878-0002       88       CFD-#3 980496-v1    Schedule. If the breach has not been remedied within that 20 Business Day period, then the date  on which notice of a Relevant Claim in respect of that breach shall be deemed to have been given  to the Seller for the purpose of paragraph 2.1 shall be the date on which notice was given under  this paragraph 3, provided that the notice satisfied the other requirements of paragraph 2.1 when  so given.  4 General limitations  4.1 The Seller shall not be liable in respect of a Relevant Claim (other than a Tax Claim, to which the  limitations at clause 3 of the Tax Covenant shall apply) (or such liability will be reduced) to the  extent that the matter giving rise to, or the loss arising from, or any increase in that claim:  (a) occurs as a result of or is otherwise attributable to any introduction, enactment, change,  amendment or withdrawal of any enactment, regulation, rules of any regulator or  administrative practice or guidance occurring after the date of this Agreement (whether or  not that introduction, enactment, change, amendment or withdrawal purports to have  retrospective effect in whole or in part), or any change in the interpretation of any of the  foregoing by any court of law or tribunal after the date of this Agreement;  (b) occurs as a result of or is otherwise attributable to:  (i) any change in the accounting reference date of any member of the Buyer's Group  after Completion;  (ii) a change in the accounting or Tax policies, bases or practices of any member of the  Buyer's Group (including the method of submitting Tax returns) introduced or having  effect after Completion;  (iii) any increase after the date of this Agreement in any rate of Tax or any change in the  tax residence of any member of the Buyer's Group;  (iv) any member of the Buyer's Group disclaiming any part of the benefit of capital or  other allowances against Tax claimed or proposed to be claimed on or before  Completion or which was otherwise taken into account in computing the provisions  for Tax in the Accounts or the Completion Statements;  (v) any failure or omission to make any valid claim, election, surrender or disclaimer, to  give any valid notice or consent or to do any other thing under the provisions of any  law, regulation or guidance relating to Tax after Completion, which was claimed or  proposed to be claimed on or before Completion or the making, giving or doing of  





 






Legal-63238732   172878-0002       89       CFD-#3 980496-v1    which was taken into account in computing the amount of any allowance, provision  or reserve for Tax in the Accounts or the Completion Statements; or  (vi) any claim, election, surrender or disclaimer made or notice or consent given after  Completion under the provisions of any law, regulation or guidance relating to Tax,  other than any claim, election, surrender or disclaimer, notice or consent assumed  to have been made, given or done in computing the amount of any allowance,  provision or reserve for Tax in the Accounts or the Completion Statements;  (c) would not have arisen or occurred but for:  (i) an act, omission or transaction on the part of; or  (ii) any change to, or non-compliance with, the operating procedures, policies or  practices of any Target Company as at Completion by,  any member of the Buyer's Group or any of their respective directors, employees or agents  after Completion otherwise than as required by law or pursuant to a legally binding  commitment of the Business created on or before Completion;  (d) arises as a consequence of any act or omission carried out (i) in consequence of the  execution and performance of and in accordance with the terms of this Agreement, or (ii) at  the request or with the written consent or approval of a member of the Buyer's Group;  (e) was provided or reserved for (and not released prior to Completion) in the Accounts or the  Completion Statements (including in the calculation of any allowance, provision or reserve  in the Accounts or the Completion Statements), or was referred to in or in the notes to the  Accounts or in accordance with generally accepted accounting principles has not been so  taken account of or referred to, provided that, for the avoidance of doubt, liability shall not  be excluded by virtue of this paragraph to the extent that any such provision or reserve is  inadequate); or  (f) would not have arisen but for any change in ownership, reorganisation, amalgamation,  restructuring (solvent or otherwise) or cessation of business of any member of the Buyer's  Group after Completion.  5 No double recovery  The Buyer agrees with the Seller (for itself and as trustee for the other members of the Seller’s  Group) that, in respect of any matter which may give rise to a liability (including for the avoidance  





 






Legal-63238732   172878-0002       90       CFD-#3 980496-v1    of doubt any indemnities) under this Agreement and/or any of the other Transaction Documents  and/or the Hive Down Agreements, no such liability shall be met more than once.  6 Insurance  If in respect of any matter which would otherwise give rise to a Relevant Claim, any member of  the Buyer's Group makes a recovery under any policy of insurance (or would have been so  entitled had the Business maintained in force insurance cover on the terms in place immediately  before Completion), that Relevant Claim shall be reduced by the net amount (after taking account  of any excess and impact on premia) which that member of the Buyer’s Group recovers under  such policy of insurance.  7 Claims by or against third parties  7.1 If any member of the Buyer's Group becomes aware of any matter:  (a) which has given, or might give rise, to a claim being made by a third party against a member  of the Buyer's Group which will or may give rise to a Relevant Claim (other than a Tax  Claim); or  (b) in respect of which any member of the Buyer's Group is or may become entitled to recover  (whether by way of payment, discount, credit, set-off, counterclaim or otherwise) from any  third party (other than pursuant to a policy of insurance referred to in paragraph 6) any sum  in respect of any loss, damage or liability which has been, is or may become the subject of  a Relevant Claim (other than a Tax Claim),  in each case a Third Party Claim (including for the avoidance of doubt, a prospective claim),  then the following provisions of this paragraph 7 shall apply.  7.2 The Buyer shall, as soon as is reasonably practicable upon any member of the Buyer's Group  becoming aware of a Third Party Claim, give notice (containing reasonable details of the Third  Party Claim) to the Seller of the matter and shall, at the Seller’s cost, consult with the Seller with  respect to that Third Party Claim and keep the Seller reasonably informed of all material  developments in relation to that Third Party Claim.  7.3 The Buyer shall not, and shall procure that no member of the Buyer's Group shall, make any  admission of liability in respect of a Third Party Claim, or agree, compromise or settle a Third  Party Claim, without the prior written consent of the Seller (such consent not to be unreasonably  withheld, conditioned or delayed).  





 






Legal-63238732   172878-0002       91       CFD-#3 980496-v1    7.4 Subject to paragraph 7.8(d), the Buyer shall provide, and shall procure that each member of the  Buyer's Group shall provide, at the Seller’s cost, the Seller and the Seller's professional advisers  with access at reasonable times (and on reasonable prior notice) to premises and personnel and  to all relevant documents, records, correspondence, accounts and other information within the  power, possession or control of any member of the Buyer's Group for the purpose of investigating  the Third Party Claim and/or ascertaining whether any member of the Buyer's Group has a right  of recovery against any person other than the Seller and/or enabling the Seller to take such action  as is referred to in paragraph 7.7.  7.5 Upon any member of the Buyer's Group becoming aware of a Third Party Claim, the Buyer shall,  and shall procure that each member of the Buyer's Group shall, retain and preserve all relevant  documents, records, correspondence, accounts and other information within the power,  possession or control of any such persons which are or could reasonably be considered relevant  in connection with the Third Party Claim for so long as any such Third Party Claim remains  outstanding.  7.6 The Seller shall be entitled, at its sole cost, to copies of any of the documents, records and  information referred to in paragraph 7.5 or, in the event that the Seller wishes to insure against its  liabilities in respect of any actual or prospective Relevant Claim, any information that a  prospective insurer may reasonably require before effecting such insurance.  7.7 The Buyer shall, and shall procure that each member of the Buyer's Group shall:   (a) take such action and institute such proceedings, and give such information and assistance,  as the Seller may request to dispute, resist, appeal, compromise, defend, remedy or  mitigate the Third Party Claim or to enforce against any person (other than the Seller) the  rights of any member of the Buyer's Group in relation to the Third Party Claim (including  the assignment to the Seller or such other third party as the Seller may direct of any rights  of action which any member of the Buyer's Group may have), and more generally  co-operate fully and promptly with the Seller and its professional advisers; and  (b) in connection with any proceedings related to the Third Party Claim (other than against the  Seller) use professional advisers nominated by the Seller and, if the Seller so request,  permit the Seller to have exclusive conduct of the negotiations and/or proceedings,  and the Seller shall indemnify the Buyer (or the relevant member of the Buyer’s Group) in respect  of all costs, losses, expenses and/or other amounts (including interest) properly and reasonably  incurred by the Buyer and/or any other member of the Buyer's Group pursuant to its obligations  under this paragraph 7.7.  





 






Legal-63238732   172878-0002       92       CFD-#3 980496-v1    7.8 Notwithstanding any other provision of this Agreement:  (a) subject to the Seller indemnifying the Buyer to the Buyer’s reasonable satisfaction in  respect of all costs, expenses and/or other amounts (including interest) that the Buyer or  relevant member of the Buyer’s Group incurs in connection with the following actions, the  Seller shall be entitled at any stage and at its sole discretion to settle any such Third Party  Claim or direct the Buyer to settle such Third Party Claim as applicable and the Seller shall,  where practicable, notify the Buyer in advance of its decision to do so;  (b) if the Buyer declines or fails to comply with a direction to settle within ten Business Days of  a written direction to do so, the Seller shall thereupon cease to have any obligation to  indemnify the Buyer in relation to such Third Party Claim pursuant to paragraph 7.7;  (c) the Seller shall have no obligation to make payment to the Buyer in respect of any Relevant  Claim until the Third Party Claim related thereto (if any) has been agreed by the Buyer and  the Seller, determined by an non-appealable court decision or is withdrawn by the claimant  in question; and  (d) the Buyer shall not be required to provide or procure the provision of any document in  respect of which legal privilege can properly be claimed by the Buyer where to do so would  cause the loss of such privilege in respect of the advice contained in such document.  7.9 For the avoidance of doubt, the provisions of this paragraph 7 shall not apply to any Tax Claim.  8 Calculating the liability of the Seller  8.1 If, after the Seller has made any payment in respect of a Relevant Claim (other than a Tax Claim),  the Buyer or a member of the Buyer’s Group recovers or becomes entitled to recover from a third  party (including any Tax Authority) (whether by payment, discount, credit, relief or otherwise) a  sum which is referable to that payment (a Recovery Amount), then the Buyer shall be obliged to  procure the pursuit of such Recovery Amount (if not already received) and shall forthwith following  recovery repay (or procure the repayment) to the Seller of an amount equal to the lesser of any  amount actually recovered (net of Tax and after the deduction of reasonable costs incurred in  achieving such recovery) and the sum paid by the Seller.  8.2 In calculating the liability of the Seller, there shall be taken into account the amount by which any  Tax, for which any member of the Buyer's Group is now or would in the future be accountable or  liable to be assessed, is or will be reduced or extinguished as a result of the matter or  circumstance giving rise to the Relevant Claim in question, such Tax to be calculated on the basis  of rates of Tax prevailing at the time of such Relevant Claim.  





 






Legal-63238732   172878-0002       93       CFD-#3 980496-v1    9 Consequential loss  Notwithstanding anything to the contrary in this Agreement, the Seller shall not in any  circumstances be liable to the Buyer, whether in contract, tort or breach of statutory duty or  otherwise for any consequential loss, loss of profit or loss of reputation.  10 Fraud  Nothing in this Schedule, nor any other provision of this Agreement purporting to limit or exclude  the Seller's liability, shall apply to any claim to the extent that it (or the delay in the discovery of it)  is the result of, or is increased as a result of any fraud or fraudulent misrepresentation on the part  of the Seller or any other member of the Seller’s Group or any officer of the Seller or any other  member of the Seller’s Group.  11 Duty to mitigate  The Buyer shall (and shall procure that each member of the Buyer's Group shall) mitigate any  loss suffered by it (or such member of the Buyer's Group) which has resulted in or could result in  a Relevant Claim (other than a Tax Covenant Claim).    





 






Legal-63238732   172878-0002       94       CFD-#3 980496-v1    Schedule 7  Pre-Completion Conduct and Undertakings  1 Pending Completion, the Seller shall, and shall procure that the other members of the Seller’s  Group shall, to the extent permitted under applicable laws carry on the Business as a going  concern in the way carried on prior to the date of this Agreement.  2 Pending Completion, the Seller shall not, and shall  procure that no other member of the Seller’s  Group shall, do or agree to do any of the following in relation to the Business:  (a) enter into, terminate, materially amend or materially vary any Material Contract or any  contract, transaction or arrangement which would be a Material Contract if it subsisted at  the date of this Agreement;  (b) sell, licence, dispose of, terminate the right to use, fail to take any action to defend or  preserve or permit the lapse, abandonment, surrender or, for applications, non- prosecution, of any rights related to material Intellectual Property Rights which:  (i) are owned or used by any Target Company; or  (ii) will be so owned by any Target Company upon completion of the Hive Down or  pursuant to the IP Assignment Agreements;  (iii) will be licensed to a Target Company by a member of the Seller’s Group pursuant to  the Meat Free Substitute Technology Licence and Brand Licences;  (c) enter into any agreement (including any transfer or licence) relating to, or grant, modify,  change or terminate any rights relating to, the material Intellectual Property Rights set out  in (b)(i) to (b)(iii)) above;  (d) allow any Target Company to:  (i) acquire or agree to acquire any share, shares or other interest in any company,  partnership or other venture or incorporate any new subsidiary;   (ii) give any Guarantee in respect of the obligations of any third party other than for  amounts which are not material and are in the ordinary course of business;   (iii) enter into any borrowing, factoring or other financing commitments (other than the  use of overdraft facilities agreed before the date of this Agreement) or lend any  money to, or enter into any lending commitments with, any person (other than a  





 






Legal-63238732   172878-0002       95       CFD-#3 980496-v1    member of the Seller’s Group), being in each case commitments which are outside  the ordinary course of its business;  (iv) declare, authorise or pay any dividend or other distribution (whether in cash, stock  or in kind) or reduce, purchase or redeem of any part of the paid-up share capital of  any Target Company;   (v) create, allot or issue, or grant any option over or other right to subscribe for any share  or other security of any Target Company; and/or  (vi) enter into any transaction with any member(s) of the Seller’s Group other than on  terms which are equivalent to arm’s length terms;  (e) create any Encumbrance over the material assets of any Target Company or dispose of  any material assets of any Target Company, in each case other than in the ordinary course  of business;  (f) commence or instigate any litigation, arbitration, prosecution or other legal proceedings  against any person, body or authority (other than in respect of ordinary course debt  collection for amounts which are not material);  (g) make any admission of liability, or any agreement, settlement or compromise of any claims,  disputes or litigation with any person, body or authority in relation to the Business;   (h) terminate the employment contract of any Senior Employee other than validly for gross  misconduct pursuant to the terms of their employment contract;  (i) enter into any new arrangement in respect of, or grant, any transaction or retention bonuses  (whether payable in cash or otherwise) to any Employee in connection with implementation  of the transactions set out in this Agreement;  (j) make any change in the terms of employment (including pension fund commitments) of  Employees other than those required by law, which could increase in aggregate the total  staff costs of the Target Companies by more than three per cent. per annum;  (k) except to replace employees on substantially the same terms or to effect the movement of  the Central Services Employees to the Target Companies, employ or agree to employ any  new persons fully or part time where the total staff costs of the Target Companies would  be increased in aggregate by more than three per cent. per annum or dismiss any existing  employees (except for incompetence or gross misconduct or other reasonable cause  





 






Legal-63238732   172878-0002       96       CFD-#3 980496-v1    justifiable by law) where the total staff costs of the Target Companies would be reduced in  aggregate by more than three per cent. per annum;  (l) enter into or undertake to enter into or materially amend any collective bargaining  agreement, or other commitment, undertaking, site guarantee or agreement (including in  relation to wage increases) with or towards any union, works council or other employee  representative body;  (m) do or fail to do anything which would be reasonably likely to result in the termination,  revocation, suspension or non-renewal of any Approval;  (n) in connection with the Leased Real Estate, terminate or serve notice to terminate, materially  alter or materially vary, surrender or accept any surrender of or waiver of any material term  of any lease;  (o) change the jurisdiction of residence for Tax purposes of any Target Company; create any  place of business of a Target Company in any jurisdiction in which that Target Company is  not, as at the date of this Agreement, resident for Tax purposes; amend any material Tax  return of a Target Company or amend or withdraw any material claim, election, surrender,  notice or consent of any Target Company for Tax purposes; or cause any Target Company  to surrender or allocate to or claim from any entity (other than another Target Company)  any Relief, disallowance or other allocation for Tax purposes, other than in each case as  assumed in the Accounts;  (p) materially alter, amend or vary the accounting policies of any Target Company unless such  alteration, amendment or variation is required by law or relevant accounting requirements  and standards;  (q) take steps to effect a winding up, liquidation, administration, receivership or other  analogous insolvency proceedings of any Target Company; and/or  (r) enter into any agreement (conditional or otherwise) to do any of the foregoing.  3 Paragraphs 1 and 2 above shall not apply in respect of, and shall not operate so as to restrict or  prevent:  (a) any matter reasonably undertaken by any member of the Seller’s Group in an emergency  or disaster situation with the intention of and to the extent only of those matters reasonably  required with a view to minimising any adverse effect thereof (and of which the Buyer will  be notified as soon as reasonably practicable);  





 






Legal-63238732   172878-0002       97       CFD-#3 980496-v1    (b) any matter expressly permitted by, or necessary for the performance of, this Agreement,  the other Transaction Documents and the Hive Down Agreements, or necessary for the  Hive Down or Completion;  (c) the entering into of any Transaction Document;  (d) any matter undertaken with the prior written consent of the Buyer (not to be unreasonably  withheld, conditioned or delayed);  (e) any matter to the extent required by law; and/or  (f) any steps required for Target Companies to be able to (or to be funded to) repay or recover  any Inter-Company Balances or pay up excess cash including by way of dividend, capital  contribution or share issuance, provided such payment, repayment or recovery does not  give rise to a liability to Tax of such Target Company (except to the extent such liability has  been or will be provided for in the Completion Statements or otherwise taken into account  as a liability (other than a provision for deferred taxation) in the preparation of the  Completion Statements, or to the extent that the Buyer is indemnified in respect of such  liability to its reasonable satisfaction by the Seller).   4 The parties acknowledge that the undertakings in paragraphs 1 and 2 have been included with a  view to preserving the value of the Business and in particular that the occurrence of the matters  set out in paragraph 2 may adversely affect the value of the Business.   5 To the extent permissible under applicable antitrust laws, from the date of this Agreement until  Completion:  (a) the Seller shall, in order to provide the Buyer with sufficient visibility on the financial  performance of the Target Companies with a view to preserving their value, keep the Buyer  reasonably informed of the Target Companies’ overall financial performance prior to  Completion by:   (i) at the request of the Buyer, providing the Buyer with aggregated summary financial  information in relation to the Target Companies within ten Business Days of the end  of each quarter; and  (ii) at the reasonable request of the Buyer, meeting with the Buyer’s representatives no  more frequently than once each quarter to discuss such financial information;   





 






Legal-63238732   172878-0002       98       CFD-#3 980496-v1    (b) each of the Seller and the Buyer shall, and shall procure that members of the Seller’s Group  and Buyer’s Group respectively shall, commence the migration planning activities  envisaged by clauses 2.1, 2.2 and 5.5 to 5.7 of the Transitional Services Agreement; and  (c) the Seller shall co-operate with the Buyer and facilitate engagement between the Buyer,  the Seller and the EPA with regard to putting in place replacement EPA Financial  Provisions relative to the IED Licences for the ROI Sites (if deemed necessary by the EPA).      





 






Legal-63238732   172878-0002       99       CFD-#3 980496-v1    Schedule 8  Completion  Part A: Seller's obligations  1 At Completion the Seller shall:  (a) repay, or procure the repayment of, the Inter-Company Payables and the Inter-Company  Receivables in accordance with clauses 9.1(b) and 9.1(c);  (b) terminate or procure the termination of the Related Party Agreements pursuant to clause  11.1;  (c) shall deliver (or procure the delivery) to the Buyer:  (i) transfers in respect of the Sale Shares duly executed and completed in favour of the  relevant Designated Buyer, together with the certificate(s) for the Sale Shares (or an  indemnity for lost share certificates, in the agreed form) and copies of the duly  executed powers of attorney or other authorities under which any of the transfers  have been executed;  (ii) voting powers of attorney in the agreed form duly executed by each of the  Designated Sellers in favour of the relevant Designated Buyers;  (iii) letters of resignation (executed as deeds and in customary form) from all the  directors and the secretary of each Target Company (other than any director or  secretary whom the Buyer wishes to continue in office) resigning their offices with  such resignations to take effect from Completion;  (iv) (if not previously so delivered) a copy of the minutes of a duly convened board  meeting of the Seller and each Designated Seller as appropriate, or a written  resolution of the directors of the Seller and each Designated Seller, authorising the  sale of the relevant Sale Shares and the execution and performance of its obligations  under this Agreement and such other Transaction Documents to which it is or is to  be a party;  (v) a copy of the minutes of each duly convened meeting, or written resolution, of the  directors, referred to in paragraph 2 below;  (vi) by making such documents available at relevant Target Company’s registered office,  the statutory books of each Target Company;  





 






Legal-63238732   172878-0002       100       CFD-#3 980496-v1    (vii) where relevant, the email address, security code and authentication code used by  each Target Company for making electronic filings with the Registrar of Companies  in the UK and Northern Ireland or the Companies Registration Office in Ireland;  (viii) a counterpart of the Transitional Services Agreement duly executed by the Seller;  (ix) a counterpart of the Van Sales Distribution Agreement duly executed by the Seller  or such member of the Seller’s Group as the Seller shall nominate;  (x) the Meat Free Substitute Technology Licence in the agreed form duly executed by  Kerry Luxembourg SARL and Northfield Foods Limited;  (xi) the Everwell Licence in the agreed form duly executed by Kerry Luxembourg SARL  and such member of the Seller’s Group as the Seller shall nominate;  (xii) the Galtee Licence in the agreed form duly executed by Duffy Meats Limited and  Breeo Foods Limited;  (xiii) the Raw Material Supply Agreement in the agreed form duly executed by Kerry  Ingredients & Flavours Limited and Northfield Foods Limited;  (xiv) the Galtee IP Assignment Agreements duly executed by all parties;  (xv) a counterpart of the Tax Covenant duly executed by the Seller;  (xvi) (if not previously so delivered) a counterpart of the Disclosure Letter duly executed  by the Seller and record of the materials stored within the Data Room; and  (xvii) the Tax reference number of the Designated Seller(s) of the Irish Sale Shares for the  purposes of the Stamp Duty (E-stamping of Instruments and Self-Assessment)  Regulations 2012 of Ireland.   2  At Completion, the Seller shall procure that each Target Company holds a duly convened  meeting of its directors, or passes a written resolution of its directors, at or pursuant to which it is  resolved that (in each case with effect from Completion):  (a) the transfers mentioned in paragraph 1(c)(i) above be registered (subject to them being  duly stamped) notwithstanding any provision to the contrary in the articles of association of  that Target Company;  (b) each of the persons nominated by the Buyer be validly appointed as directors and/or  secretary of that Target Company;  





 






Legal-63238732   172878-0002       101       CFD-#3 980496-v1    (c) the resignations of the directors and secretaries of that Target Company, referred to in  paragraph 1(c)(iii) above, be tendered and accepted;   (d) the registered office of that Target Company be changed to such place as the Buyer may  nominate; and  (e) all existing instructions and authorities to bankers are revoked.  Part B: Buyer's obligations  1 At Completion:    (a) each Designated Buyer shall pay to the Seller in accordance with clause 29, the Initial  Purchase Price allocated to the Sale Shares in respect of which it is the Designated Buyer  (as set out in Schedule 1); and  (b) the Buyer shall deliver to the Seller:  (i) (if not previously so delivered) a copy of the minutes of a duly convened board  meeting of the Buyer and each Designated Buyer, or a written resolution of the  directors of the Buyer and each Designated Buyer, authorising the purchase of the  relevant Sale Shares and the execution of, and the performance of its obligations  under, this Agreement and such other Transaction Documents to which it is or will  be a party;  (ii) (if not previously so delivered) a counterpart of the Disclosure Letter duly executed  by the Buyer;  (iii) a counterpart of the Transitional Services Agreement duly executed by the Buyer;   (iv) a counterpart of the Van Sales Distribution Agreement duly executed by the Buyer  or such member of the Buyer’s Group as the Buyer shall nominate; and  (v) a counterpart of the Tax Covenant duly executed by the Buyer.  





 






Legal-63238732   172878-0002       102       CFD-#3 980496-v1    Schedule 9  Completion Statements  Part A – The Preparation of the Completion Statements  Preparation of draft Completion Statements  1 As soon as reasonably practicable, and in any event by no later than 45 Business Days, following  Completion, the Seller shall prepare and deliver to the Buyer a draft of each of the Completion  Statements substantially in the form set out in Parts C and D of this Schedule (the Draft  Completion Statements), such Draft Completion Statements to include or be accompanied by:  (a) a statement of Actual Net Indebtedness;  (b) a statement of Actual Working Capital; and  (c) a statement as to the amount to be paid by either the Buyer or the Seller pursuant to clause  4.11.  2 In preparing the Draft Completion Statements:  (a) reference shall be made to the definitions of the relevant items to be included in the Draft  Completion Statements as set out in this Agreement;  (b) in applying such definitions and determining the items and amounts to be included in the  Draft Completion Statements, the following hierarchy of accounting treatment shall be  applied:  (i) first, the specific polices and accounting treatments set out in Part B of this Schedule;  (ii) secondly, and to the extent not covered by paragraph (i) above (provided they are  not inconsistent with IFRS), the same accounting principles, policies, evaluations,  categorisations, procedures, techniques, methods, bases, practices and estimation  





 






Legal-63238732   172878-0002       103       CFD-#3 980496-v1    techniques as were used in the preparation of the Carve-Out Accounts, consistent  with historical practice applied in preparing the Accounts; and  (iii) thirdly, to the extent not covered by paragraphs (i) and (ii) above, on a going concern  basis in accordance with IFRS in force and applicable to the Target Companies at  the Accounts Date.  An illustrative example of Net Indebtedness and Working Capital as at 31 December 2020  is set out in column (B) of Part C and Part D respectively.  Notification of Disputed Items and proposed adjustments  3 As soon as reasonably practicable, and in any event within 35 Business Days, following the  delivery of the Draft Completion Statements to the Buyer in accordance with paragraph 1 above,  (the Review Period), the Buyer shall review the Draft Completion Statements and shall give  notice in writing to the Seller either:  (a) specifying any item in the Draft Completion Statements that it wishes to dispute (a  Disputed Item) including details of:  (i) its reasons for disputing each Disputed Item; and  (ii) the adjustments that it believes need to be made to the Draft Completion Statements  in respect of each Disputed Item,  (a Dispute Notice); or  (b) that there is no Disputed Item and that the Buyer does not believe that any adjustments  need to be made to the Draft Completion Statements (an Agreement Notice).  Finalisation of the Completion Statements where there are no Disputed Items  4 If:  (a) during the Review Period, the Buyer gives an Agreement Notice to the Seller; and/or  (b) by the expiry of the Review Period, no Dispute Notice has been given to the Seller,  the Draft Completion Statements shall constitute the Completion Statements for the purposes of  this Agreement, and the date falling on the Business Day immediately after: (i) expiry of the  Review Period; or (ii) if earlier, receipt by the Seller of an Agreement Notice, shall be the date of  finalisation of the Completion Statements for all purposes of this Agreement.  





 






Legal-63238732   172878-0002       104       CFD-#3 980496-v1    Finalisation of the Completion Statements where there are Disputed Items  5 If the Buyer gives the Seller a Dispute Notice within the Review Period:  (a) except for any Disputed Item, the Buyer shall be deemed to have agreed all other items in  the Draft Completion Statements;  (b) the Seller and the Buyer shall discuss any Disputed Item and endeavour to agree in writing  the adjustments (if any) required to be made to the Draft Completion Statements in respect  of each such Disputed Item;  (c) if, within 20 Business Days after the end of the Review Period (the Resolution Period),  the Seller and the Buyer agree in writing upon all adjustments required to be made to the  Draft Completion Statements in respect of each Disputed Item (or agree that no such  adjustments are required), the Draft Completion Statements as so agreed in writing  between the Seller and the Buyer shall constitute the Completion Statements for the  purposes of this Agreement, and the date on which the Seller and the Buyer agree in writing  on the last of the adjustments required to be made to the Draft Completion Statements in  respect of each Disputed Item (or agree that no such adjustments or no further adjustments  are required) shall be the date of finalisation of the Completion Statements for all purposes  of this Agreement; and  (d) if, by the expiry of the Resolution Period, there remains any Disputed Item in respect of  which the Seller and the Buyer have not agreed in writing what adjustments are required  to be made to the Draft Completion Statements (a Remaining Item), then:  (i) each such Remaining Item (but no other matters) shall, upon written notice from  either the Buyer or the Seller to the other (a Referral Notice), be referred to the  Independent Accountants who shall determine, in accordance with paragraphs 7 to 9  (inclusive) below, what adjustments (if any) are required to be made to the Draft  Completion Statements in respect of each such Remaining Item;  (ii) the Draft Completion Statements adjusted:  (A) in respect of any Disputed Item, as agreed in writing between the Seller and  the Buyer in accordance with paragraph 5(b) above (if, and to the extent that,  the Seller and the Buyer agree any such adjustments); and  (B) in respect of any Remaining Item, as determined by the Independent  Accountants in accordance with paragraph 5(d)(i) above (if, and to the extent  





 






Legal-63238732   172878-0002       105       CFD-#3 980496-v1    that, the Independent Accountants determine that any such adjustments are  required),  shall constitute the Completion Statements for the purposes of this Agreement; and  (iii) the date on which the Independent Accountants determine the last of the  adjustments required to be made to the Draft Completion Statements in respect of  each Remaining Item (or determine that no such adjustments or no further  adjustments are required) in accordance with paragraph 5(d)(i) shall be the date of  finalisation of the Completion Statements for all purposes of this Agreement.  Finalised Completion Statements to be binding  6 When the Completion Statements have been finalised in accordance with the preceding  paragraphs of this Schedule, then the Completion Statements shall be final and binding on the  Parties and shall not be subject to question on any ground whatsoever.  Independent Accountants  7 If and whenever any matter falls to be referred, in accordance with this Schedule, to Independent  Accountants for determination, it shall be referred to such firm of independent chartered  accountants: (i) as the Seller and the Buyer may agree in writing within 10 Business Days after  the service of a Referral Notice; or (ii) failing such agreement, as the President for the time being  of the Institute of Chartered Accountants in England and Wales shall nominate on the application  of either the Seller or the Buyer (the Independent Accountants).   8 The Independent Accountants shall act on the following basis:  (a) the Independent Accountants shall be instructed to notify the Seller and the Buyer of their  determination of any such matter within 20 Business Days of such referral;  (b) the Independent Accountants shall be instructed to determine any dispute by reference to  the accounting treatment specified in paragraph 2 of this Schedule and, in making any such  determination, the Independent Accountants shall have exclusive jurisdiction to determine  the proper construction of paragraph 2;  (c) the Seller and the Buyer shall be entitled to make written submissions to the Independent  Accountants, but subject thereto the Independent Accountants shall have power, after  having consulted with the Buyer and the Seller, to determine the procedure to be followed  in relation to their determination;  





 






Legal-63238732   172878-0002       106       CFD-#3 980496-v1    (d) any submissions to and the determination of the Independent Accountants shall be in the  English language and any oral hearings shall be conducted in English;  (e) in making such submissions, the Seller and the Buyer shall state their respective best  estimates of monetary amounts of the matters referred for determination;  (f) in making their determination, the Independent Accountants shall act as experts and not  as arbitrators, their decision as to any matter referred to them for determination shall be  final and binding in all respects on the Parties, save in the case of manifest error or fraud;  (g) no amendment may be made by the Independent Accountants to any items or amounts  which are not Disputed Items; and  (h) the fees, costs and expenses of the Independent Accountants shall be borne and paid as  the Independent Accountants shall direct and, failing such direction, by the Seller and the  Buyer equally.  9 The Seller and the Buyer shall enter into an appropriate form of appointment of the Independent  Accountants as soon as reasonably practicable (and in any event within 10 Business Days)  following the selection of the Independent Accountants in accordance with paragraph 7 above  and the Buyer and the Seller shall act reasonably in agreeing the terms and conditions of such  appointment, including, without limitation, in respect of fees and any exclusions and limitations of  liability where it can be reasonably demonstrated that such terms and conditions reflect market  standard provisions for such appointments. In the event of any failure to agree such terms and  conditions, the Seller shall be entitled to appoint the Independent Accountants on behalf of both  the Buyer and the Seller and to agree such terms and conditions with the Independent  Accountants as it shall determine, provided that it can be reasonably demonstrated that such  terms and conditions broadly reflect market standard provisions for such appointments.  Provision of Information  10 Until the Completion Statements have been finalised in accordance with this Schedule:  (a) the Seller shall, and shall procure that each member of the Seller’s Group shall, provide  the Buyer and its professional advisers with access to employees of the Seller and other  members of the Seller’s Group and all information, assistance and access to books and  records of account, documents, files, papers and information stored electronically which  the Buyer may reasonably require for the purposes of this Schedule and permit the Buyer  (at the Buyer’s cost) to take copies thereof;  





 






Legal-63238732   172878-0002       107       CFD-#3 980496-v1    (b) the Buyer shall, and shall procure that other members of the Buyer’s Group shall,  provide  the Seller and its professional advisers with access to employees of the Buyer and other  members of the Buyer’s Group (including  the Target Companies) and all information,  assistance and access to books and records of account, documents, files, papers and  information stored electronically which the Seller may reasonably require for the purposes  of this Schedule and permit the Seller (at the Seller’s cost) to take copies thereof; and  (c) in the event that Independent Accountants are appointed, the Seller and the Buyer shall  each provide, and shall procure that the members of the Seller’s Group or the Buyer’s  Group (as applicable) shall provide, the Independent Accountants promptly with access to  employees of the Seller (and other members of the Seller’s Group) and the Buyer (and  other members of the Buyer’s Group) and all information, assistance and access to books  and records of account, documents, files, papers and information stored electronically  which they may reasonably require for the purposes of this Schedule, and the Independent  Accountants shall be entitled (to the extent they consider it appropriate) to base their  determination on such information and on the accounting and other records of the Target  Companies.  Costs of respective accountants and other expenses  11 The fees, costs and expenses of any accountants (other than the Independent Accountants) used  by the Buyer or the Seller in respect of the matters dealt with by this Schedule shall be for the  account of the Buyer and the Seller respectively.  12 Each of the Buyer and the Seller shall bear its own fees, costs and expenses with respect to the  finalisation of the Completion Statements.     





 






Legal-63238732   172878-0002       108       CFD-#3 980496-v1    Part B - Specific policies and accounting treatments to be used in preparing the  Completion Statements  1 Except as otherwise expressly specified, no account shall be taken of events taking place after  Completion, and regard shall only be had to information available to the Parties up to the date  that the Draft Completion Statements are delivered by the Seller to the Buyer.  2 For the purposes of the Completion Statements, Completion shall be treated as the end of a  financial accounting and tax period.  3 The Completion Statements will be prepared in GBP.  Assets and liabilities in the Completion  Statements denominated in a currency other than GBP shall be converted at the Conversion Rate  on the Completion Date.  4 The provisions of this Schedule shall be interpreted so as to avoid double counting (whether  positive or negative) of any item to be included in the Completion Statements.  5 The Completion Statements shall be prepared by reference to draft completion balance sheets at  the Completion Date for the Target Companies, in substantially the same format as the Carve- Out Accounts (but including separate line items as necessary for the Completion Statements and  to facilitate the calculation of any adjustments required pursuant to clauses 4.9 to 4.11 (such that  the Parties to calculate Actual Net Indebtedness and Actual Working Capital in respect of each  Target Company)) and on a consolidated basis, drawn up from the individual general ledgers of  each of the Target Companies (including by reference to individual operating sites therein).  6 Trade debtors, trade creditors, VAT and accruals (other than holiday pay accruals for direct  labour) in respect of the Target Companies (other than Oakhouse and Rollover) shall remain with  the Seller’s Group where provided for in accordance with this Agreement.  7 For the avoidance of doubt, and save as set out as express inclusions in the definition of  Indebtedness, other than in relation to Oakhouse and Rollover, the Working Capital Statement  shall exclude all trade debtors, other debtors, trade creditors, and other creditors and accruals.  8 Prepayments in respect of all Target Companies shall remain with the Target Companies.  Prepayment balances shall be included within the Working Capital Statement for all Target  Companies.  9 In relation to the Target Companies other than Oakhouse and Rollover, trade debtors and trade  creditors are stated net of any credit or debit balances payable on such trade debtors or creditors  as the case may be. Trade debtors shall include VAT receivables from HMRC or the Irish Revenue  





 






Legal-63238732   172878-0002       109       CFD-#3 980496-v1    Commissioners and trade creditors shall include VAT payables to HMRC or the Irish Revenue  Commissioners and capital purchase creditors.  10 In relation to Oakhouse and Rollover, trade debtors and trade creditors within the Working Capital  Statement are stated net of any credit or debit balances payable on such trade debtors or creditors  as the case may be. Trade debtors shall include VAT receivables from HMRC or the Irish Revenue  Commissioners and trade creditors shall include VAT payables to HMRC or the Irish Revenue  Commissioners and capital purchase creditors.  11 The Working Capital Statement shall include full provision for holiday pay accruals for all Target  Companies for direct labour, calculated as at the Completion Date in line with historical practice.  12 In relation to the Target Companies other than Oakhouse and Rollover, in respect of GRN (goods  received notes) accruals, accruals (other than holiday pay accruals for direct labour), which for  the avoidance of doubt in respect of such Target Companies shall remain with the Seller’s Group,  are made for all goods and services received but not yet invoiced at the Completion Date, based  on the quantity of goods received multiplied by the order price, including costs of freight and any  other transportation costs and duties associated with these goods and services.  13 In relation to Oakhouse and Rollover, in respect of GRN (goods received notes) accruals, accruals  within the Working Capital Statement shall be made for all goods and services received but not  yet invoiced at the Completion Date, based on the quantity of goods received multiplied by the  order price, including costs of freight and any other transportation costs and duties associated  with these goods and services.  14 Lease liability amounts for any capitalised right of use leased assets are as calculated by Kerry’s  SAP REFX module.  15 Fixed asset, leased and non-leased, capital additions between the date of this Agreement and  the Completion Date shall be determined by the capitalisation dates on the fixed asset registers.  16 The Completion Statements shall include £800,000 for lease dilapidations.   17 Deposits and sundry receivables will be included in the Completion Statements at their  recoverable amount calculated in accordance with IFRS, consistent with historical practice.  18 The value of Stock shall be such amount as calculated by the Seller in accordance with clause  4.4 of this Agreement.   Any third party logistics providers holding Stock will be requested to issue  stock confirmations to the Seller for the purposes of the Stock Take.   19 For the purposes of the valuation of the Stock:  





 






Legal-63238732   172878-0002       110       CFD-#3 980496-v1    (a) all raw materials and packaging materials stock shall be valued at the lower of weighted  average cost and net realisable value consistent with historical practice;  (b) work in progress shall be valued at the latest production cost in line with historical practice  (raw materials, packaging);  (c) finished goods shall be valued at the lower of the latest actual monthly production cost (raw  materials, packaging and direct labour) and attributable overheads in line with historical  practice and net realisable value;  (d) all raw materials, packaging, work in progress and finished goods will be reviewed to  determine obsolescence. Obsolescence arises as follows:  (i) stock items beyond their “use by / use before” date or which a customer will not  accept on the basis of the remaining level of life in the product shall be considered  obsolete;  (ii) stock items that have been contaminated shall be considered obsolete; and  (iii) work in progress stock which will not be converted to finished product within its shelf- life shall be considered obsolete,  in each case consistent with historical practice;  (e) appropriate provision shall be made for obsolete, slow moving, defective or damaged raw  materials, packaging, work in progress and finished goods, consistent with historical  practice;  (f) any amount required to discharge any retention of title (or other similar or analogous right)  against the Stock shall be deducted from the value of the Stock, consistent with historical  practice;  (g) engineering spares and consumables shall be valued at cost with an appropriate provision  for obsolete engineering spares consistent with historical practice.  20 If any insured event occurs after the date of this Agreement but before Completion in relation to  any asset of a Target Company or the Business which needs to be replaced or restored in order  for the relevant business to continue to be conducted in the ordinary course, then, to the extent  that a member of the Seller’s Group recovers any proceeds or is entitled to a receivable under a  policy but the relevant asset is not replaced or restored before Completion, any such proceeds  





 






Legal-63238732   172878-0002       111       CFD-#3 980496-v1    shall be deducted from Cash and any such receivable shall not be included in Working Capital  and, accordingly, shall not, in each case, be included in the Completion Statements.  21 The calculation of tax assets/liabilities for the purposes of the Net Debt Statement and Working  Capital Statement will be undertaken in accordance with the following provisions:  (a) provisions for all current and non-current Taxes payable or liable to be paid, but unpaid, by  any Target Company in respect of the period up to the Completion Date shall be calculated  by reference to income, profit, or gains or losses earned, accrued, received or realised,  remuneration paid and supplies made or received, as the case may be, in the period up to  and including the Completion Date and income, profits, or gains or losses deemed to have  been earned, accrued, received or realised, remuneration deemed to be paid and supplies  deemed to be made or received, as the case may be, for Tax purposes in the period up to  and including the Completion Date;   (b) the Net Debt Statement and Working Capital Statement shall include all liabilities to Tax of  each Target Company arising by reason of that or any other Target Company leaving the  Seller’s Group for any Tax purpose or as a result of any deemed disposal or realisation by  any Target Company of any asset or liability for any Tax purposes as a result of Completion  (including, without limitation, any stamp duty land tax liability arising as a result of the  withdrawal of any relief claimed in connection with the Hive Down);  (c) the Working Capital Statement shall include provision for all payroll taxes (including social  security contributions) and (in accordance with paragraphs 5 to 7 above) VAT payables  owed by, or any VAT receivables owed to, any Target Company in respect of any period  up to and including the Completion Date;  (d) the Net Debt Statement shall include provision for all other Tax or amounts in respect of  Tax (including, without limitation, corporation tax but excluding payroll taxes, social security  contributions and VAT) payable by any Target Company in respect of any period up to and  including the Completion Date;  (e) a provision for all Tax or amounts in respect of Tax (including, without limitation, corporation  tax and/or payroll taxes and/or social security contributions) payable by any Target  Company in respect of the period up to and including the Completion Date shall be included  in the Net Debt Statement and/or the Working Capital Statement;  (f) for the purposes only of determining whether Taxes are payable or liable to be paid in  respect of the period up to and including the Completion Date and whether a Relief has  arisen in or relates to the period up to and including the Completion Date, an accounting  





 






Legal-63238732   172878-0002       112       CFD-#3 980496-v1    period of each Target Company shall be deemed to have ended on the Completion Date;  and  (g) for the avoidance of doubt, no liability and no asset shall be included in the Completion  Statements in respect of deferred taxation.  22 The Completion Statements shall include no amounts in respect of contingent liabilities (as  defined in accordance with IFRS).  23 The Completion Statements shall include no amounts in relation to Excluded Assets, Transaction  Costs, Excluded Contracts or Excluded Liabilities.  Part C – Form of Net Debt Statement  [***]                                                         





 






Legal-63238732   172878-0002       113       CFD-#3 980496-v1    Part D - Form of Working Capital Statement  [***]                                                





 






Legal-63238732   172878-0002       114       CFD-#3 980496-v1    Schedule 10  Agency provisions  Part A: Agency structure  1 The Seller is entering into this Agreement on the basis that any undertaking or agreement given  by the Seller under this Agreement (including any Seller Obligation) is given, and any undertaking  or agreement given by the Buyer under this Agreement (including any Buyer Obligation) is  received, by the Seller as principal and, to the extent that the relevant undertaking or agreement  relates to a particular Set of Sale Shares, as agent for the Designated Seller which is selling that  particular Set of Sale Shares.  2 The Buyer is entering into this Agreement on the basis that any undertaking or agreement given  by the Buyer under this Agreement (including any Buyer Obligation) is given, and any undertaking  or agreement given by the Seller under this Agreement (including any Seller Obligation) is  received, by the Buyer as principal and, to the extent that the relevant undertaking or agreement  relates to a particular Set of Sale Shares, as agent for the Designated Buyer which is acquiring  that particular Set of Sale Shares.  3 To the extent that any payment is made by the Buyer to the Seller under this Agreement in respect  of an Initial Purchase Price or by way of adjustment to the price of a particular Set of Sale Shares  (including in respect of any Buyer Obligation), such payment is (i) made by the Buyer as agent  for the Designated Buyer acquiring the relevant Set of Sale Shares (unless the Buyer is itself the  relevant Designated Buyer, in which case it is made by the Buyer as principal) and (ii) received  by the Seller as agent for the Designated Seller selling the relevant Set of Sale Shares (unless  the Seller is itself the relevant Designated Seller, in which case it is received by the Seller as  principal).  4 To the extent that any payment is made by the Seller to the Buyer under this Agreement by way  of or adjustment to the price of a particular Set of Sale Shares (including in respect of any Seller  Obligation), such payment is (i) made by the Seller as agent for the Designated Seller selling the  relevant Sale Shares under this Agreement (unless the Seller is itself the relevant Designated  Seller, in which case it is made by the Seller as principal) and (ii) received by the Buyer as agent  for the Designated Buyer acquiring the relevant Sale Shares under this Agreement (unless the  Buyer is itself the relevant Designated Buyer, in which case it is received by the Buyer as  principal).  5 For the purposes of this Schedule, an undertaking or agreement or any Buyer Obligation or Seller  Obligation relates to a particular Set of Sale Shares if the relevant provision relates to or applies  





 






Legal-63238732   172878-0002       115       CFD-#3 980496-v1    in respect of that Set of Sale Shares regardless of whether or not the relevant provision refers to  it or them by name or applies in respect of more than one Set of Sale Shares.  6 If any undertaking under this Agreement is expressed to be an obligation of more than one  Designated Seller or more than one Designated Buyer, it shall be construed as a separate  obligation of each such Designated Seller or Designated Buyer (as the case may be) in relation  only to the Sale Shares which that Designated Seller is selling or which that Designated Buyer is  purchasing under this Agreement, and the liability of each such Designated Seller or Designated  Buyer (as the case may be) shall be several and not joint.  Part B: Appointment of Buyer as agent for UK Designated Buyer and Irish Designated Buyer  1 Each of the UK Designated Buyer and the Irish Designated Buyer undertakes with the Buyer to  comply with its obligations as a Designated Buyer under the this Agreement.  2 Each of the UK Designated Buyer and the Irish Designated Buyer hereby irrevocably appoints  and instructs the Buyer as its sole agent:  (a) to enter into and perform this Agreement as its agent on the terms set out in this Schedule  and to enter into and perform any other Transaction Documents;  (b) with the exception of any amounts payable by that Designated Buyer pursuant to clause 4,  to receive or pay (as the case may be) any amounts owed to or paid or to be paid by or to  that Designated Buyer pursuant to any of the provisions of this Agreement;  (c) to initiate, receive, conduct and settle any claims and satisfy all judgments in respect of all  matters arising under this Agreement; and  (d) to give and receive such representations, warranties, undertakings and indemnities, and  assume such other rights and obligations as this Agreement provides are to be given,  assumed, received, made or done by the Buyer on behalf of or as agent for that Designated  Buyer (including in respect of the Warranties, the Tax Covenant and the indemnities given  by the Seller and the Buyer as set out in this Agreement)  and the Buyer hereby accepts such appointment and instruction.  3 Each of the UK Designated Buyer and the Irish Designated Buyer undertakes to the Buyer:  (a) to provide the Buyer with funds to pay any amounts to be paid by that Designated Buyer  pursuant to any of the provisions of this Agreement; and  





 






Legal-63238732   172878-0002       116       CFD-#3 980496-v1    (b) to indemnify the Buyer against any and all Losses suffered or incurred by the Buyer in  relation to any claim under this Agreement paid by the Buyer as agent of that Designated  Buyer.  4 Each of the UK Designated Buyer and Irish Designated Buyer agrees with the Buyer that the  rights and benefits held and received (including the Warranties, the Tax Covenant and the  indemnities) by that Designated Buyer through the Buyer’s agency under this Agreement shall  only be enforceable by that Designated Buyer through such agency and upon the terms of this  Agreement.  Any liability in respect of any breach of such rights and benefits (including in respect  of the Warranties, the Tax Covenant and any indemnities) shall be determined solely in  accordance with the terms of this Agreement.  Part C: Supplemental Transaction Agency Agreements  1 The Seller and the Buyer agree that the Buyer may add or substitute a Designated Buyer in  respect of any particular Set of Sale Shares or Sets of Sale Shares by Supplemental Transaction  Agency Agreements (in substantially the same form as the Standard Transaction Agency  Agreement) entered into after the date of this Agreement and prior to Completion, provided that:  (a) any such additional or substitute Designated Buyer is and will remain a member of the Buyer’s  Group at Completion and (b) to the extent not incorporated in the UK or ROI, the identity of such  additional or substitute Designated Buyer shall be subject to approval by the Seller (such approval  not to be unreasonably withheld or delayed and provided that no such approval shall be required  for the Buyer to be a Designated Buyer). Any such additional or substitute Designated Buyer  (together with the Buyer, the Seller and each of the other Designated Sellers and Designated  Buyer which entered into Standard Transaction Agency Agreements on or before the date of this  Agreement and have not been so substituted) shall have such rights against, and obligations to,  each other under this Agreement as they would have had if:  (a) such additional or substitute Designated Buyer had been specified as a Designated Buyer  of the relevant Set of Sale Shares in Schedule 1 (Designated Sellers, Designated Buyers  and Apportionment of Purchase Price) of this Agreement; and  (b) the Buyer has been validly appointed as the agent of such additional or substitute  Designated Buyer pursuant to a Standard Transaction Agency Agreement on or before the  date of this Agreement,  and this Agreement shall be read and construed accordingly (including the terms “Designated  Buyer” and “agent”).  





 






Legal-63238732   172878-0002       117       CFD-#3 980496-v1    2 The Buyer undertakes that, if the relevant entity which is to purchase Sale Shares under this  Agreement does not exist and/or has not entered into a Standard Transaction Agency Agreement  at the date of this Agreement, such entity will as soon as practicable (and in any case before  Completion) enter into a Supplemental Transaction Agency Agreement (and thereby become a  Designated Seller or, as the case may be, a Designated Buyer if it is not one already).  3 Each of the Seller and the Buyer shall negotiate in good faith with a view to agreeing before the  Completion Date the final form of any Supplemental Transaction Agency Agreement pursuant to  this Part B. Such document(s) shall be in all material respects in the agreed form of the  supplemental agency agreement template (except solely to the extent that it is necessary to  modify it to comply with the laws and regulations of the jurisdiction in which the relevant transfer  of Sale Shares is taking place or to reflect the formalities for execution in its jurisdiction of  incorporation by any entity which is to be party to such document).  Part D: Claims  1 If the Buyer or any of its Related Undertakings wishes to make a claim under this Agreement  against the Seller or any of its Related Undertakings, the Buyer shall procure that any such claim  shall only be made by the Buyer (for itself and/or as agent for its relevant Related Undertakings)  against the Seller (for itself and/or as agent for its relevant Related Undertakings) in accordance  with the dispute resolution provisions in this Agreement.  A party who is a Designated Buyer who  ceases to be a Related Undertaking of the Buyer shall cease to have any rights under, and shall  not be entitled to bring any claim in respect of, this Agreement.    2 If the Seller or its Related Undertakings wishes to make a claim under this Agreement against the  Buyer or any of its Related Undertakings, the Seller shall procure that any such claim shall only  be made by the Seller (for itself and/or as agent for its relevant Related Undertakings) against the  Buyer (for itself and/or as agent for its relevant Related Undertakings) in accordance with the  dispute resolution provisions in this Agreement. A party who is a Designated Seller who ceases  to be a Related Undertaking of the Seller shall cease to have any rights under, and shall not be  entitled to bring any claim in respect of, this Agreement.  3 For the purposes of this Part C of this Schedule, whichever of the Seller or the Buyer is bringing  a claim (whether as agent or otherwise) in accordance with paragraph 1 or paragraph 2 of this  Part D, as the case may be, is termed the Claimant Party and the other of them is termed the  Defendant Party. The parties agree that:  (a) the Defendant Party shall not raise any defence or objection to any such claim on the basis  that it is made in the name of the Claimant Party acting as agent and/or made against the  Defendant Party acting as agent pursuant to the provisions of this Schedule and shall be  





 






Legal-63238732   172878-0002       118       CFD-#3 980496-v1    deemed to have waived the right to raise and to be stopped from raising any such defence  or objection;  (b)  where a claim cannot, as a matter of law, be made by the Claimant Party in its own name  as agent for a relevant Related Undertaking pursuant to this Schedule, any such claim may  and shall be assigned by the Related Undertaking to the Claimant Party (provided that the  liability of the person claimed against shall be no greater and no less than such liability  would have been if the assignment had not occurred);  (c) the Claimant Party undertakes to indemnify the Defendant Party and its Related  Undertakings against any and all Losses suffered or incurred by any of them as a result of  a Related Undertaking of the Claimant Party making any claim other than in accordance  with Part C of this Schedule and the Claimant Party shall procure that any such claim made  by a Related Undertaking of the Claimant Party is discontinued and withdrawn with  immediate effect;  (d) where a claim is made by the Claimant Party against the Defendant Party and the claim  results in a payment being required to be made to the Claimant Party, the payment shall  be made by the Defendant Party (as principal and/or, if applicable, as agent for its relevant  Related Undertakings to the Claimant Party (as principal and/or, if applicable, as agent for  its relevant Related Undertakings).      





 






Legal-63238732   172878-0002       119       CFD-#3 980496-v1    Schedule 11  Definitions and Interpretation    1 In this Agreement:  Accounts means the annual accounts of each Existing Company, including the notes to those  accounts and the associated directors' and auditor's reports, for the financial year ended on the  Accounts Date;  Accounting Standards means the accounting standards in force and applicable to the relevant  Target Company as at the Accounts Date;  Accounts Date means 31 December 2020;  Actual Net Indebtedness means the Indebtedness less the Cash of the Target Companies at  Completion, as ascertained after Completion in accordance with Schedule 9 (Completion  Statements) and as set out in the Completion Statements;  Actual Working Capital means the aggregate Working Capital of the Target Companies at  Completion, as ascertained after Completion in accordance with Schedule 9 (Completion  Statements) and as set out in the Completion Statements;  Agency Agreements means the undisclosed agency agreements entered into between Kerry  Foods Limited or Henry Denny & Sons (Ireland) Limited (as agent) and the Target Companies  (as manufacturer);  Apportionable Items means any Customer Agreements and Supplier Agreements which contain  provisions requiring apportionment over a period of time commencing prior to Completion  (including promotions, rebates and overrider payments);   Approvals has the meaning given to it in paragraph 5.2 of Schedule 4 (Seller Warranties);  Asbestos Indemnity Claim means any claim under the environmental indemnity at clause  20.2(a) and 20.2(b);  Asbestos Reports means the two asbestos management survey reports dated 29 January 2020  and 13 January 2020 in respect of the main factory building and main administration building at  the Hyde Property, prepared by Bureau Veritas UK, copies of which are included in the Data  Room with reference numbers 1.3.2.2.14 and 1.3.2.2.15 respectively;  





 






Legal-63238732   172878-0002       120       CFD-#3 980496-v1    Associated Person means, in relation to a company, a person (including any director, manager,  officer, secretary, employee, agent or other intermediary or subsidiary) who performs services for  or on behalf of that company or who holds shares of capital stock, partnership interests, limited  liability company membership interests and units, shares, interest and other participations in that  company (in each case when performing such services or acting in such capacity);  Authorisations means all material regulatory or environmental licences, registrations, consents,  permits (including Environmental Permits) certifications, approvals and other material  authorisations (public and private) that are necessary for conducting the Business;  Brand Licences means the Galtee Licence and Everwell Licence;  Burton Property means the property at Century Court, First Avenue, Centrum 100, Burton on  Trent, to the extent used prior to the date of this Agreement in relation to the Business;  Business means:  (a) the manufacture, processing, marketing, supply, distribution or sale of branded and private  label chilled, frozen and ready to cook ready meals for sale into the consumer foods retail  market and the direct to consumer market (the Ready Meals Business);   (b) the manufacture, processing, marketing, supply, distribution or sale or any other form of  commercialisation of branded or private label: (i) sausages and bacon; (ii) cooked meats;  (iii) meat snacks; and (iv) meat alternative snacks, sausages, bacon, burgers and mince,  in each case for sale into the consumer foods retail market (the Meats Business);   (c) the vans sales trading operations and services in Northern Ireland and ROI (the Van Sales  Business); and  (d) the business operating under the name ‘Rollover’ which supplies equipment and a range  of hot food and snack options to business customers,  in each case as carried out by the Seller’s Group as at Completion;  Business Day means a day other than a Saturday or Sunday on which banks are ordinarily open  for the transaction of normal banking business in London and Dublin;  Business Payables means all amounts payable or owing by a member of the Seller’s Group  (other than Oakhouse and Rollover) for goods and/or services supplied to the Business or  otherwise owing by a member of the Seller’s Group (other than Oakhouse and Rollover) in respect  of the Business, in each case prior to the Completion Date (whether or not invoiced);  Business Receivables means all amounts receivable by or owing to a member of the Seller’s  Group (other than Oakhouse and Rollover) for goods and/or services supplied by the Business  





 






Legal-63238732   172878-0002       121       CFD-#3 980496-v1    or otherwise owing to a member of the Seller’s Group (other than Oakhouse and Rollover) in  respect of the Business, in each case prior to the Completion Date (whether or not invoiced);  Buyer Obligation means any representation, warranty, covenant to pay or undertaking to  indemnify given by the Buyer to the Seller under this Agreement or the Tax Covenant;  Buyer Warranties means the warranties set out in Schedule 5 (Buyer Warranties) and Buyer  Warranty means any one of them;  Buyer’s Assignee has the meaning given to it in clause 35.2(b);  Buyer's Bank Account means the account of the Buyer as notified to the Seller in writing from  time to time;  Buyer's Group means the Buyer and each company which is for the time being (whether on or  after the date of this Agreement) a Related Undertaking of the Buyer, including with effect from  Completion the Target Companies;  CA 2006 means the UK Companies Act 2006;  CA 2014 means the ROI Companies Act 2014;  Carrickmacross Site means the site and facilities operated by a Target Company at  Carrickmacross Industrial Estate, Castleblayney Road, Carrickmacross, Co. Monaghan, Ireland  which are shown outlined in red on Map 1 annexed to the Declaration of Identity of Peadar Stack  dated 31 May 2021 located at 1.8.2.4.1 of the Data Room and the Occupied Real Estate set out  at item (i) of paragraph 10.11 of Schedule 4  Carve-Out Accounts means the pro-forma income statement and pro-forma balance sheet of  Business for the three consecutive financial years ended on the Accounts Date as set out in the  Deloitte VFDD Report;  Cash means the aggregate of the cash (whether in hand or credited to any account with any  banking, financial, acceptance credit, lending or other similar institution or organisation) and cash  equivalents, including all interest accrued thereon, of the Target Companies as at Completion,  but excluding, for the avoidance of doubt, any item or amount to the extent it is taken into account  in calculating the Actual Working Capital;  CCPC means the ROI Competition and Consumer Protection Commission;  Central Services Employees means [***];   





 






Legal-63238732   172878-0002       122       CFD-#3 980496-v1    CMA has the meaning given to it in clause 3.1(a);  Commitments has the meaning given to it in clause 3.4(e);   Competition Act means the ROI Competition Acts 2002 to 2017;  Competition Authority has the meaning given to it in clause 3.4(a);  Completion means completion of the sale and purchase of the Sale Shares by the performance  by the Parties of their respective obligations under clause 11 and Schedule 8;  Completion Statements means the Net Debt Statement and the Working Capital Statement;  Completion Date means the date on which Completion occurs in accordance with this  Agreement;  Conditions has the meaning given to it in clause 3.1;  Confidential Information means trade secrets and information equivalent to them (including  formulae, processes, methods, knowledge and Know-how) in connection with the Business or  relating to the products manufactured, produced, distributed or sold and/or the services supplied  by the Seller’s Group in connection with the Business or the customers and suppliers of the  Business and which are for the time being confidential to any member of the Seller’s Group;  Continuing Related Party Agreements means the Meat Free Substitute Technology Licence  and the Brand Licences the Van Sales Distribution Agreement and the Raw Material Supply  Agreement;  Conversion Rate means with respect to a particular currency for a particular day the spot rate of  exchange (the closing mid-point) for that currency into sterling on such date as published in the  London edition of the Financial Times first published thereafter or, where no such rate is published  in respect of that currency for such date, at the rate quoted Barclays Bank plc as at the close of  business in London as at such date;  CTA 2010 means the Corporation Tax Act 2010;  Customer Agreements means all agreements, contracts, engagements, arrangements, licences  and other commitments (whether in writing or orally) entered into by the Business or by the Seller’s  Group relating to the Business (including those which the Seller’s Group transferred, or purported  to transfer, to a Target Company under the Hive Down Agreements) in each case with third party  customers, including (without limitation) those contracts set out in the Data Room reference 1.9.2,  1.4.1 (clean team) and 1.4.2 (clean team);  





 






Legal-63238732   172878-0002       123       CFD-#3 980496-v1    Data Protection Legislation means all laws and regulations applicable to the processing of  Personal Data, including:  (a) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016  (General Data Protection Regulation) (GDPR) (including as amended and transposed into  the laws of the United Kingdom pursuant to the European Union (Withdrawal) Act 2018 and  the European Union (Withdrawal Agreement) Act 2020) and other laws and regulations of  the European Union, its member states and the United Kingdom relating to the processing  of Personal Data, privacy and interception of communications to the extent applicable in  the United Kingdom or Ireland, including the Irish Data Protection Act 2018;  (b) the corresponding laws and regulations of each jurisdiction in which any Target Company  operates; and  (c) where applicable, the related guidance and codes of practice issued by the United  Kingdom's Information Commissioner, the Irish Data Protection Commission or any other  regulator of each jurisdiction in which any Target Company operates;  Data Room means all documents, correspondence and other information made available for  inspection by the Buyer and its advisers in the electronic data room and clean room, each hosted  by Intralinks as the same appeared in respect of the electronic data room known as ‘Project  Verona’ at 14:30pm on 17 June 2021 and in respect of the clean room known as ‘Project Verona  Clean Room’ at 23:56pm on 16 June 2021 and as is listed in the Data Room Index;  Data Room Index means the indexes detailing the contents of the Data Room, in the agreed  form;  Data Subject, Personal Data, Personal Data Breach and Supervisory Authority have the  meanings given to them in the Data Protection Legislation;  Designated Buyers means the members of the Buyer’s Group set out in column (3) of the table  contained in Schedule 1 (Designated Sellers, Designated Buyers and Apportionment of Purchase  Price) and/or any member of the Buyer’s Group established as a Designated Buyer of any shares  pursuant to a Supplemental Transaction Agency Agreement and provided that they shall only  remain a Designated Buyer so long as they remain a Related Undertaking of the Buyer, and  Designated Buyer means any of them;  Designated Sellers means the members of the Seller’s Group set out in column (1) of the table  contained in Schedule 1 (Designated Sellers, Designated Buyers and Apportionment of Purchase  Price) and/or any member of the Seller’s Group established as a Designated Seller of any shares  pursuant to a Supplemental Transaction Agency Agreement and provided that they shall only  





 






Legal-63238732   172878-0002       124       CFD-#3 980496-v1    remain a Designated Seller so long as they remain a Related Undertaking of the Seller, and  Designated Seller means any of them;  Disclosed means fairly disclosed in such manner and in such detail as to enable the Buyer to  make a reasonably informed assessment of the nature, scope, consequences and significance of  the matter concerned;  Disclosure Letter means the letter of the same date as this Agreement from the Seller to the  Buyer disclosing certain matters in relation to the Seller Warranties, together with all documents  attached to it or listed in any schedule to it;  Due Diligence Reports means:  (a)  the Project Verona vendor financial due diligence report prepared by Deloitte LLP, dated  31 March 2021 (the Deloitte VFDD Report);  (b) the Project Verona tax financial due diligence report prepared by Deloitte LLP, dated 31  March 2021;  (c) the Project Verona legal due diligence report prepared by Norton Rose Fulbright LLP, dated  31 March 2021; and  (d) the Project Verona environmental due diligence reports prepared by ERM Group Inc. in  respect of certain Properties (being Enniskillen, Hyde, Attleborough, Shillelagh,  Carrickmacross, Windmill Lane, Dean Way, Collett Way, Spurway), together with the final  summary report, dated 25 and 29 March 2021;  Employees means the employees of the Target Companies and the Central Services Employees  from time to time;  Employment Contracts means the contracts or other terms and conditions of employment under  which the Employees are for the time being employed by the Seller or any member of the Seller's  Group;  Encumbrance means any mortgage, charge, rent-charge, pledge, lien, option, restriction, right  of first refusal, right of pre-emption, claim, right, interest or preference granted to any third party,  or any other encumbrance or security interest of any kind (or an agreement or commitment to  create any of the same);  Environment means any or all living organisms including the ecological systems of which they  form part and the following media (alone or in combination): air (including the air within the  





 






Legal-63238732   172878-0002       125       CFD-#3 980496-v1    buildings and the air within other natural or man-made structures whether above or below ground);  water (including water under or within land or in drains or sewers and surface, ground, coastal  and inland waters); land (including surface land, sub-surface strata, land under water and natural  and manmade structures); and in the case of man includes his senses and his property;  Environmental Authority means any person (including any Governmental Department or  Government Agency or body, the Environment Agency, local authorities or the Health & Safety  Executive or their respective equivalents in any jurisdiction in question) having regulatory powers  and/or authority at law and/or any court of law or tribunal in relation to the Environment or  Environmental Laws;  Environmental Claim means any claim or demand or any civil or administrative litigation,  arbitration, dispute resolution proceedings, suit, action, notice or other enforcement process or  any voluntary action approved by any Environmental Authority, or any enquiry or investigation by  any Environmental Authority, official warning, abatement or other order or notice (conditional or  otherwise) relating to the pollution or protection of the Environment, or harm or protection of the  health of humans, animals or plants under any Environmental Permits or Environmental Laws;  Environmental Expert shall have the meaning set out in clause 20.15;  Environmental Instrument means any credit, allowance or certificate required to be held for the  direct or indirect emission or potential emission of greenhouse gases under a regime established  for that purpose by Environmental Laws;  Environmental Laws means all applicable laws (including all or any of statute, common law, rule,  regulation, treaty, directive, direction, decision of the court, bye-law, code of practice, circular,  guidance note, statutory guidance, order, notice, demand or official guideline of any  Environmental Authority) in force in any relevant jurisdiction (including the European Union) at  any time up to and including the date of this Agreement to the extent that they relate to or concern  the protection of human health or the Environment, energy efficiency, climate change and/or the  conditions of the workplace and worker health and safety or they regulate, control or prohibit the  generation, use, handling, emission, transportation, storage, treatment or disposal of any  substance (including waste) or any noise, vibration, odour, light or radioactivity or have as a  purpose or effect the provision of remedies or compensation for harm or damage to the  Environment or any loss arising therefrom or the condition, protection, maintenance, remediation,  reinstatement, restoration of the Environment or any part of it;  Environmental Permits means any agreement, permission, permit, licence, authorisation,  consent, registration, notification, exemption or other approval required pursuant to any  





 






Legal-63238732   172878-0002       126       CFD-#3 980496-v1    Environmental Laws by any Target Company (including any condition or requirement thereof as  modified from time to time) in order to carry out its operations;  EPA means the Environmental Protection Agency of the Republic of Ireland;   EPA Financial Provisions means any secured fund, guarantee, insurance, cash deposit, letter  of credit, bond, charge, security or any other provision either individually, or in combination, which  is in place and agreed with the EPA for the purposes of covering the cost of any environmental  liability that may occur during and after the lifetime of the ROI Sites;  Estimated Net Indebtedness means the Seller’s reasonable estimate of Actual Net  Indebtedness as notified by the Seller to the Buyer in accordance with clause 4.7;  Estimated Working Capital means the Seller’s reasonable estimate of Actual Working Capital  as notified by the Seller to the Buyer in accordance with clause 4.7;  Everwell Licence means the licence relating to the ‘Everwell’ brand from Kerry Luxembourg  SARL to such member of the Seller’s Group as the Seller shall nominate, to be entered into in the  agreed form;  Excluded Assets, Excluded Contracts and Excluded Liabilities have the meanings given to  them the relevant Hive Down Agreement;  Excluded Events means:   (a) changes in general political, economic, financial, regulatory or market conditions;  (b) acts of war, hostilities, military activity, terrorism, sanction, embargo or other calamity or  crisis;  (c) epidemics, pandemics (including Covid-19), earthquakes, floods, tsunamis, hurricanes,  volcanos, fires, tornadoes or other natural disasters;  (d) changes in law or regulation;  (e) acts or omissions of any member of the Seller’s Group or any Target Company at the  written request or with the written consent of the Buyer; and  (f) transactions contemplated by this Agreement or any Transaction Document including  changes in control resulting from any such transaction, Events which are the subject of an  indemnity in this Agreement or a Transaction Document and any matter that is Disclosed;  





 






Legal-63238732   172878-0002       127       CFD-#3 980496-v1    Existing Companies means the companies specified in Part A of Schedule 2 (Target  Companies) and Existing Company means any of them;  Financial Crime Laws means all applicable laws, rules and regulations of any jurisdiction relating  to the prevention of bribery, corruption, money laundering, terrorist financing, facilitation of tax  evasion, fraud or similar or related activities or relating to financial sanctions, including the Foreign  Corrupt Practices Act 1977 of the USA, the ROI Criminal Justice (Corruption Offences) Act, 2018,  the ROI Criminal Justice (Theft and Fraud Offences) Act, 2001, the Terrorism Act 2010, the  Proceeds of Crime Act 2002, the Bribery Act 2010, the Money Laundering Regulations 2017 and  the Criminal Finances Act 2017, and Financial Crime Law means any of them;  Food Laws means any law or other requirement having legal effect in any jurisdiction to which  the Business and/or the Existing Companies are subject, concerning meat, meat production and  preparation, meat products and other foodstuffs  intended for human  consumption including  without limitation food safety,  hygiene,  packaging,  information,  labelling,  advertising,  storage,  distribution, transportation,  importation, exportation, sale and supply of meat, meat products and other foodstuffs;  Fundamental Warranties means those Seller Warranties set out at paragraphs 1, 2, 3. 4.1 to  4.4 and 19 of Schedule 4 and Fundamental Warranty means any one of them;  Fundamental Warranty Claim means any claim, demand, action, proceeding or suit by the Buyer  under or in connection with any of the Fundamental Warranties;  Galtee IP Assignment Agreements means:  (a) the three assignment agreements to be entered into between Breeo Brands Limited (as  assignor) and Duffy Meats Limited (as assignee);  (b) the assignment agreement to be entered into between Kerry Luxembourg Sarl (as  assignor) and Duffy Meats Limited (as assignee); and  (c) the assignment agreement between the Seller (as assignor) and Duffy Meats Limited (as  assignee),  in each case substantially in the form (subject to insertion of details of the consideration payable  under them where applicable) of the execution copies of such agreements disclosed at Data  Room reference 1.7.3.7.13 to 1.7.3.7.17;  Galtee Licence means the licence relating to the ‘Galtee’ brand from Duffy Meats Limited to  Breeo Foods Limited to be entered into in the agreed form;  





 






Legal-63238732   172878-0002       128       CFD-#3 980496-v1    Groundwater Monitoring Scope means the scope and methodology of any groundwater  monitoring required pursuant to the Hyde Environmental Permit as identified scoped and agreed  between the Seller and the Buyer acting reasonably;   Groundwater Survey means a survey to be completed by an environmental consultant for the  characterisation and reporting of the condition of the groundwater, in accordance with the  applicable guidance issued by the Environment Agency from time to time, required to the Hyde  Environmental Permit and undertaken in accordance with the Groundwater Monitoring Scope;   Groundwater Indemnity Claim means any claim under the environmental indemnity at clause  20.2(c);  Guarantee means any guarantee, indemnity, suretyship, letter of comfort or other assurance,  security or right of set-off given or undertaken by a person to secure or support the obligations  (actual or contingent) of any other person and whether given directly or by way of counter- indemnity to any other person who has provided a Guarantee;  Headline Price means £680,000,000;  Hive Down means the hive down of certain assets, rights and liabilities in respect of the Business  from members of the Seller’s Group to the Newly-Trading Companies pursuant to the terms of  the Hive Down Agreements;  Hive Down Agreements means:  (a) the business transfer agreement relating to certain assets, rights and liabilities of the Ready  Meals Business between Kerry Foods Limited (as seller) and Attleborough Foods Limited  (as buyer), dated 30 May 2021;  (b)  the business transfer agreement relating to certain assets, rights and liabilities of the Meats  Business between Kerry Foods Limited (as seller) and Northfield Foods Limited (as buyer),  dated 30 May 2021;   (c)  the business transfer agreement relating to the Van Sales Business in Northern Ireland  between Kerry Foods Limited (as seller) and Consumer Van Sales Limited (as buyer),  dated 30 May 2021;  (d) the business transfer agreement relating to the Van Sales Business in the Republic of  Ireland between Henry Denny & Sons (Ireland) Limited (as seller) and Icehall Limited (now  known as Consumer Foods Van Sales (Ireland) Limited) (as buyer), dated 1 May 2020;  





 






Legal-63238732   172878-0002       129       CFD-#3 980496-v1    (e) the Hive Down IP Assignment Agreements;   (f) the Property Transfers; and  (g) all other agreements entered into in connection with the foregoing  Hive Down IP Assignment Agreements means:  (h)  the assignment agreement between the Seller (as assignor) and Northfield Foods Limited  (as assignee), dated 30 May 2021;  (i)  the assignment agreement between Kerry Luxembourg Sarl (as assignor) and  Attleborough Foods Limited (as assignee), dated 30 May 2021 and  (j)  the assignment agreement between Kerry Luxembourg Sarl (as assignor) and Northfield  Foods Limited (as assignee), dated 30 May 2021;  holding company means a holding company (as defined by section 1159 CA 2006) or a parent  undertaking (as defined by section 1162 CA 2006);  HMRC means HM Revenue and Customs;  Hyde Environmental Permit means the environmental permit issued to Kerry Foods Limited  dated 29 October 2018 permit number EPR/BO5357IE in relation to activities carried out at the  Hyde Property;    Hyde Property means the site and facilities operated by the Target Company situated at Godley  Hill Road, Godley, Hyde, Cheshire SK14 3BR;  IED Licences means EPA Licence P0806-01 (in respect of the ROI Site at Carrickmacross) and  EPA Licence P0804-02 (in respect of the ROI Site at Shillelagh), each as amended or replaced,  and granted by the EPA under the Republic of Ireland Environmental Protection Agency Act 1992  (as amended) for the carrying out of certain industrial and agricultural activities;  IFRS means, the body of pronouncements issued by the International Accounting Standards  Board (IASB), as adopted for use in the European Union further to the IAS regulation  (EC 1606/2002), including International Financial Reporting Standards and interpretations  approved by the IASB, International Accounting Standards and Standing Interpretations  Committee interpretations approved by the predecessor International Accounting Standards  Committee;  





 






Legal-63238732   172878-0002       130       CFD-#3 980496-v1    Indebtedness means the aggregate indebtedness of the Target Companies, including all  declared but unpaid dividends, borrowings and other indebtedness by way of overdraft,  acceptance credit or similar facilities, loan stocks, bonds, debentures, notes, debt or inventory  financing, finance leases or sale and lease back arrangements or any other arrangements the  purpose of which is to borrow money, together with forex, interest rate or other swaps, hedging  obligations, bills of exchange, recourse obligations on factored debts and obligations under other  derivative instruments, being for these purposes only those line items set out in Part C of  Schedule 9 (Completion Statements) but  excluding, for the avoidance of doubt, any item or  amount to the extent it is taken into account in calculating the Actual Working Capital;  Indemnity Claim means any indemnity claim made by the Buyer pursuant to clauses 5.1, 5.2(b),  6.1(b), 12, 13 and 20;  Independent Accountants has the meaning given to it in paragraph 6 of Schedule 13;  Information Memorandum means the Project Verona confidential information memorandum  prepared by Bank of America Corporation, dated February 2021;  Information Technology means information and communications technology infrastructure  (including, without limitation, hardware, software, (in both object and source code) firmware,  networks and connecting media);  Initial Purchase Price means an amount equal to:  (a) the Headline Price;  (b) minus the Estimated Net Indebtedness;  (c) minus an amount equal to the difference between the Estimated Working Capital and the  Target Working Capital (if the Estimated Working Capital is less than the Target Working  Capital) or adding an amount equal to the difference between the Estimated Working  Capital and the Target Working Capital (if the Estimated Working Capital is greater than  the Target Working Capital);  Intellectual Property Rights means copyrights, (including, without limitation, rights in computer  software), patents, trade marks, trade names, service marks, business names (including, without  limitation, internet domain names), design rights, database rights, semi-conductor topography  rights, rights in undisclosed or confidential information (such as Know-how, trade secrets and  inventions (whether patentable or not)), and all other intellectual property or similar proprietary  rights of whatever nature (whether registered or not and including, without limitation, applications  





 






Legal-63238732   172878-0002       131       CFD-#3 980496-v1    to register or rights to apply for registration) which may now or in the future subsist anywhere in  the world;  Inter-Company Balances means Inter-Company Payables and Inter-Company Receivables;  Inter-Company Payables means amounts payable by the Business to the Seller's Group (other  than the Target Companies);  Inter-Company Receivables means amounts receivable by the Business from the Seller's Group  (other than the Target Companies);  IP Assignment Agreements means:  (a) the four assignment agreements between Kerry Luxembourg SARL (as Assignor) and  Duffy Meats Limited (as Assignee) dated 11 June 2021;  (b) the assignment agreement between Kerry Luxembourg SARL (as Assignor) and Noon  Products Limited (as Assignee) dated 11 June 2021;  (c) the assignment agreement between Kerry Luxembourg SARL (as Assignor) and Oakhouse  Foods Limited (as Assignee) dated 11 June 2021;  (d) the assignment agreement between Kerry Luxembourg SARL (as Assignor) and Rollover  Limited (as Assignee) dated 11 June 2021;  (e) the assignment agreement between Kerry Luxembourg SARL (as Assignor) and Northfield  Foods Limited (as Assignee) dated 11 June 2021;  (f) the assignment agreement between Kerry Luxembourg SARL (as Assignor) and Rye  Valley Foods Limited (as Assignee) dated 11 June 2021;  (g) the assignment agreement between Kerry Group plc (as Assignor) and Duffy Meats Limited  (as Assignee) dated 11 June 2021;  (h) the assignment agreement between Kerry Group plc (as Assignor) and Noon Products  Limited (as Assignee) dated 11 June 2021; and  (i) the Galtee IP Assignment Agreements;   Irish Sale Shares means the entire issued share capital of each of the Target Companies that is  incorporated in ROI;  IT and Data means:  





 






Legal-63238732   172878-0002       132       CFD-#3 980496-v1    (a) the Information Technology; and  (b) data (both Personal Data and other data);  Know-how means all information not publicly known, owned by the Seller or any member of the  Seller's Group and exclusively used, or required to be used, in, or in connection with, the  Business, held in any form (including that comprised in or derived from design drawings,  prototypes, models, discoveries, improvements, data, formulae, specifications, component lists,  instructions, manufacturing technology manuals, brochures, catalogues, processes, process  descriptions and all other technical information and materials);  Leased Real Estate means the leasehold property described in Part B of Schedule 3  (Properties);  Longstop Date means 23:59 (London time) on the date falling 12 months after the date of this  Agreement;  Losses means all claims, demands, liabilities, damages, compensation, tribunal awards or  orders, fines, losses, costs (including legal costs and experts’ and consultants’ fees) and  expenses;  Material Adverse Change means any food safety, food hygiene or food contamination event,  circumstance or occurrence or any combination of them which arises or occurs after the date of  this Agreement (whether or not foreseeable on or before the date of this Agreement) (an Event)  which:  (a) is not an Excluded Event; and  (b) which (i) has resulted in one or more manufacturing or processing sites or facilities operated  by the Target Companies in respect of the Ready Meals Business and/or the Meats  Business (excluding sites or facilities relating to Oakhouse and Rollover) substantially  ceasing to operate for at least 30 consecutive days; and (ii) has, or is reasonably likely to  have a material adverse effect on the business, operations, assets, liabilities (including  contingent liabilities), properties, business or financial condition, results or prospects of the  Target Companies taken as a whole;  Material Contract shall have the meaning set out in paragraph 9 of Schedule 4 (Seller  Warranties);  





 






Legal-63238732   172878-0002       133       CFD-#3 980496-v1    Meat Free Substitute Technology Licence means the technology licence relating to the  production process for meat-free substitutes (bacon and ham) from Kerry Luxembourg SARL to  Northfield Foods Limited to be entered into in the agreed form;  Net Debt Statement means the statement of Actual Net Indebtedness at Completion prepared  in accordance with the provisions of Schedule 9 (Completion Statements) and in the form set out  in Part C of Schedule 9 (Completion Statements);  Newly-Trading Companies means the companies specified in Part B of Schedule 2 (Target  Companies) and Newly-Trading Company means any of them;  Noon Products means Noon Products Limited (company registration number 02166664), further  details of which are set out in Part A of Schedule 2 (Target Companies);  Oakhouse means Oakhouse Foods Limited (company registration number 04226390), further  details of which are set out in Part A of Schedule 2 (Target Companies);  Occupied Lands has the meaning given to it in clause 21.1;  Occupied Real Estate has the meaning given to it in paragraph 10.12 of Schedule 4;  Owned Real Estate means the freehold property described in Part A of Schedule 3 (Properties);  Phase 2 CMA Reference means a reference by the United Kingdom Competition and Markets  Authority to its chair for the constitution of a group under Schedule 4 to the Enterprise and  Regulatory Reform Act 2013;  PHI Arrangements means the ROI PHI Arrangement and UK income protection policy with  Canada Life;  Planning Acts means:  (a) the Planning and Development Acts 2000-2021, the Local Government (Sanitary Services)  Act 1878-2011, the Building Control Acts 1999-2014, the Fire Service Acts 1981 and 2003,  and the Safety Health and Welfare at Work Acts 2005;  (b) the Planning (Northern Ireland) Order 1991 (as amended) (where applicable) and the  Planning Act (Northern Ireland) 2011, the Building Regulations (Northern Ireland) Order  1979 (as amended) (the Building Control Acts), the Fire Safety Regulations (Northern  Ireland) 2010 (as amended), and the Health and Safety at Work (Northern Ireland) Order  1978 (as amended); and   





 






Legal-63238732   172878-0002       134       CFD-#3 980496-v1    (c) the Town and Country Planning Act 1990, the Planning (Listed Building and Conservation  Areas) Act 1990, the Planning (Hazardous Substances) Act 1990, the Planning  (Consequential Provisions) Act 1990, the Planning and Compensation Act 1991, the  Planning and Compulsory Purchase Act 2004, the Planning Act 2008, the Localism Act  2011, the Growth and Infrastructure Act 2013, the Housing and Planning Act 2016, the  Neighbourhood Planning Act 2017,  together with any extension, amendment, modification or re-enactment of any such acts,  regulations and orders, and any rules, regulations, orders or instruments under any of the said  Acts (before or after the date of this Agreement) and for the time being in force together with any  lawful requirements of any competent authority relating to building and construction compliance;  Portadown Property means the property at Suite 6, The Exchange, Goban Street, Portadown,  Co. Armagh, to the extent used prior to the date of this Agreement in relation to the Business;  Pre-Completion Undertakings means the undertakings as detailed in Schedule 7 (Pre- Completion Undertakings);  Properties means the Owned Real Estate and the Leased Real Estate;  Property Transfer has the meaning given to it in the relevant Hive Down Agreement;  Proposed Transaction has the meaning given to it in clause 3.1(a)(i);  Purchase Price means an amount equal to:  (a) the Headline Price;  (b) minus the Actual Net Indebtedness;  (c) minus an amount equal to the difference between the Actual Working Capital and the  Estimated Working Capital (if the Actual Working Capital is less than the Estimated Working  Capital) or adding an amount equal to the difference between the Actual Working Capital  and the Estimated Working Capital (if the Actual Working Capital is greater than the  Estimated Working Capital);  Q&A Responses means the replies to pre-contractual enquiries raised by the Buyer and/or its  Representatives and contained in the Data Room;  Raw Material Supply Agreement means the supply agreement relating to the provisions of food  ingredients by the Retained Kerry Group to the Business to be entered into between Kerry  Ingredients & Flavours Limited and Northfield Foods Limited in the agreed form;  





 






Legal-63238732   172878-0002       135       CFD-#3 980496-v1    Related Party Agreements means all agreements, contracts, understandings or undertakings  entered into in connection with the Business (whether in writing or orally) with a member of the  Seller’s Group, including without limitation the Agency Agreements, but excluding the Transaction  Documents and the Inter-Company Payables, excluding the Continuing Related Party  Agreements;  Related Undertaking in relation to any company means any subsidiary or holding company of  that company or any subsidiary of any such holding company, in each case from time to time;  Relevant Claim means any claim, demand, action, proceeding or suit by the Buyer under or in  connection with this Agreement and/or the Tax Covenant, whether for damages, compensation  or any other relief, other than a Restrictive Covenant Claim;  Relevant Named Contract means the contracts defined in the Hive Down Agreements as  ‘Named Contracts’ which are not assignable without obtaining the consent of the relevant  counterparty;  Relevant Period from (and including) 1 January 2019 to the date of this Agreement;  Relief means any loss, relief, allowance, exemption, set-off, deduction, credit, repayment or other  relief relating to any Tax or to the computation of income, profits or gains for the purposes of any  Tax;  Remedial Works means the investigation, removal, cure, containment, neutralisation, clean-up  or remediation, including use restrictions and natural attenuations, of any contamination or  hazardous substances, required to achieve compliance with requirements under Environmental  Laws;  Representatives means, in relation to any person, its directors, officers, employees, agents,  professional advisers, accountants and consultants;  Restricted Products means products of the type being manufactured and sold by the Business  at Completion;  Restrictive Covenant Claim means any claim, demand, action, proceeding or suit by the Buyer  in connection with a breach of clause 17.1 or 17.2;  Retained Business means the businesses of the Seller’s Group from time to time, other than the  Business;  Retained Kerry Group means the Seller’s Group other than the Target Companies.  





 






Legal-63238732   172878-0002       136       CFD-#3 980496-v1    ROI means Republic of Ireland;  ROI DB Scheme means the Kerry Group plc Defined Benefit Plan (registered with the Pensions  Authority under number PB2678);  ROI DC Plan means that Kerry Group Plc Defined Contribution Pension Plan;  ROI Pension Schemes means each and all of the ROI DC Plan and the ROI DB Scheme;   ROI PHI Arrangement means the disability benefits arrangement insured with Irish Life providing  disability benefits to Employees;  ROI Sites means the sites and facilities operated by Target Companies at (a) Carrickmacross  Industrial Estate, Castleblayney Road, Carrickmacross, Co. Monaghan, Ireland; and (b) Coolattin,  Shillelagh, Co. Wicklow, Ireland, and "each of the ROI Sites" shall be construed accordingly;  Rollover means Rollover Limited (company registration number 02606878), further details of  which are set out in Part A of Schedule 2 (Target Companies);  Sale Shares means the entire issued share capital of each of the Target Companies set out  opposite the names of the Designated Sellers in column (2) of the table contained in Schedule 1  (Designated Sellers, Designated Buyers and Apportionment of Purchase Price);  Section 357 Guarantees means the guarantees provided by the Seller in respect of Duffy Meats  Limited, Rye Valley Foods Limited and Consumer Foods Van Sales (Ireland) Limited, in each  case in respect of the financial year ending 31 December 2020, under section 357 of CA 2014;  Seller Obligation means any representation, warranty, covenant to pay or undertaking to  indemnify given by the Seller to the Buyer under this Agreement or the Tax Covenant;  Seller Warranties means the warranties set out in Schedule 4 and Seller Warranty means any  one of them;  Seller Warranty Claim means any claim, demand, action, proceeding or suit by the Buyer under  or in connection with any of the Seller Warranties;  Seller's Assignee has the meaning given to it in clause 35.2(a);  Seller's Bank Account means the account of the Seller as notified to the Buyer in writing from  time to time;  





 






Legal-63238732   172878-0002       137       CFD-#3 980496-v1    Seller's Group means the Seller and each company which is for the time being (whether on or  after the date of this Agreement) a Related Undertaking of the Seller, other than after Completion  the Target Companies;  Seller’s Group Insurance Policies has the meaning given to it in clause 17.1;  Senior Employees means those Employees who are employed by the Seller’s Group at  Managing Director level or at the level immediately below Managing Director level;  Set of Sale Shares means, in relation to a Designated Seller, the shares comprising issued share  capital of any particular Target Company which are to be sold by that Designated Seller under  this Agreement;  Shared Agreement means any Customer Agreement or Supply Agreement that relates to both  the Business and the retained business of the Seller’s Group;  Standard Transaction Agency Agreements means the agreements between the Seller and a  Designated Seller or between the Buyer and a Designated Buyer entered into prior to the  execution of this Agreement, appointing the Seller or the Buyer as the Designated Seller’s or  Designated Buyer’s agent respectively on the terms set out therein, and Standard Transaction  Agency Agreement means any one of them;  Stock means the following, wherever situated, as at the Completion Date:  (a) all finished products held by the Target Companies as trading stock for supply exclusively  in the course of the Business;  (b) all stocks of meat, ingredients and other raw materials held by the Target Companies  exclusively in the course of the Business;  (c) all semi-produced or partly finished products which are in the course of production by the  Target Companies into finished products for supply in the course of the Business; and  (d) all stocks of packaging materials and of maintenance or other engineering parts,  components and accessories in use or held by the Target Companies for use or supply  exclusively in the course of the Business;  Stock Take has the meaning given to it in clause 4.4;  subsidiary means a subsidiary undertaking (as defined by section 1162 CA 2006) or a subsidiary  (as defined by section 1159 CA 2006);  





 






Legal-63238732   172878-0002       138       CFD-#3 980496-v1    Supplemental Transaction Agency Agreements means the agreements between the Seller,  the Buyer and either a Designated Seller or Designated Buyer to be entered into in the  circumstances referred to in Part B of Schedule 10 (Agency provisions) after the date of this  Agreement (but in any case prior to or at Completion), in substantially the same form as the  Standard Transaction Agency Agreement and Supplemental Transaction Agency Agreement  means any of them;  Supply Agreements means the agreements, contracts, engagements, arrangements and other  commitments  (whether in writing or orally) entered into by the Business or by the Seller’s Group  for use in the Business (including those which the Seller’s Group transferred, or purported to  transfer, to a Target Company under the Hive Down Agreements) in each case for the purchase  of raw materials, goods and services from time to time, but excluding the Related Party  Agreements;  Surviving Provisions means clause 22 (Entire Agreement), 24 (Remedies and waivers) to 33  (Agency structure) and 36 (Rights of third parties) to 40 (Service of process), Schedule 10  (Agency provisions) and Schedule 11 (Definitions and interpretation);  Target Companies means the Existing Companies and the Newly-Trading Companies and  Target Company means any one of them;  Target Working Capital means £14,100,000, being the Parties' agreed target amount of Working  Capital as at Completion;  Tax means:  (a) all forms of tax, levy, duty, charge, impost, withholding or other amount whenever created  or imposed and whether of the United Kingdom or elsewhere, payable to or imposed by  any Tax Authority; and  (b) all charges, interest, penalties and fines incidental or relating to any Tax falling within (a)  above or which arise as a result of the failure to pay any Tax on the due date or to comply  with any obligation relating to Tax;  Tax Authority means any revenue, customs, fiscal, governmental, statutory, state or provincial  authority, body or person, whether of the United Kingdom or the Republic of Ireland or elsewhere;  Tax Claims means Tax Warranty Claims and Tax Covenant Claims;  Tax Covenant means the tax covenant, in the agreed form, to be entered into between the Seller  and the Buyer;  





 






Legal-63238732   172878-0002       139       CFD-#3 980496-v1    Tax Covenant Claim means any claim, demand, action, proceeding or suit by the Buyer pursuant  to clauses 2.1(a), 2.1(b) or 2.1(d) of the Tax Covenant;  Tax Warranties means the Seller Warranties contained in paragraphs 3, 5.3 and 5.4 (in each  case, insofar as the matter relates to or is in connection with Tax) and paragraph 20 of Schedule 4  (Seller Warranties);  Tax Warranty Claim means any claim, demand, action, proceeding or suit by the Buyer under or  in connection with any of the Tax Warranties;  TCA means the Taxes Consolidation Act 1997 of ROI;  Transaction Agency Agreements means the Standard Transaction Agency Agreements and  the Supplemental Transaction Agency Agreements entered into in connection with this  Agreement, and Transaction Agency Agreement means any one of them;   Transaction Costs has the meaning given to it in clause 4.14;  Transaction Documents means this Agreement, the Disclosure Letter, the IP Assignment  Agreements, the Standard Transaction Agency Agreements, the Supplemental Transaction  Agency Agreements and all documents expressed to be in the agreed form, and all other  documents to be entered into pursuant to this Agreement or expressly designated by the Buyer  and the Seller to be a Transaction Document;  Transfer Regulations means the Transfer of Undertakings (Protection of Employment)  Regulations 2006 as amended and the European Communities (Protection of Employees on  Transfer of Undertakings) Regulations 2003;  Transfer Taxes means stamp duty, stamp duty land tax and all other applicable transfer, stamp,  documentary or similar taxes including any interest or penalties on any of the same;  Transitional Services Agreement means the agreement between the Seller and the UK  Designated Buyer, in the agreed form, setting out certain services to be provided for a transitional  period after Completion from the Seller to the UK Designated Buyer and the Target Companies;  UK DB Section means the defined benefit section of the Kerry Retirement Benefits Scheme;  UK DC Section means the defined contribution section of the Kerry Retirement Benefits Scheme;  UK Life Assurance Arrangement means the life cover provided for UK and NI employees via  the Kerry Retirement Benefits Scheme for employees who are members of the UK DC Section  





 






Legal-63238732   172878-0002       140       CFD-#3 980496-v1    and via the Kerry Life Assurance Scheme for employees who are not members of the UK DC  Section.   UK Pensions Regulator means the “Regulator” as defined in the Pensions Act 2004;  Valid VAT Invoice means an invoice prepared and issued in accordance with VATA or VATCA  (as applicable);  Van Sales Distribution Agreement means the agreement between Kerry Foods Limited, Henry  Denny & Sons (Ireland) Limited, Consumer Foods Van Sales Limited and Consumer Foods Van  Sales (Ireland) Limited, in the agreed form, in relation to the distribution by the Buyer of certain  products of the Retained Business for a transitional period after Completion;  VAT means the tax called Value-Added Tax chargeable, leviable and payable as provided in  VATA or VATCA (as applicable) and any other tax of a similar nature;  VATA means the Value Added Tax Act 1994;  VATCA means the Value-Added Tax Consolidation Act 2010 of ROI;  Warranties means the Buyer Warranties and the Seller Warranties and Warranty means any  one of them;  Working Capital means the aggregate working capital of the Target Companies, being for these  purposes only those line items in respect of the relevant Target Companies as set out in Part D  of Schedule 9 (Completion Statements) (which, for the avoidance of doubt, includes all Stock,  prepayments, trade debtors, trade creditors and accruals) and determined in accordance with  specific polices and accounting treatments set out in Part B of Schedule 9 (Completion  Statements), but excluding, for the avoidance of doubt, any item or amount to the extent it is taken  into account in calculating the Actual Net Indebtedness; and  Working Capital Statement means the statement of the Actual Working Capital at Completion  prepared in accordance with the provisions of Schedule 9 (Completion Statements) and in the  form set out in Part D of Schedule 9 (Completion Statements).  2 In this Agreement unless the context requires otherwise:  (a) a document expressed to be in the agreed form means a document in a form which has  been agreed in writing by the Parties (or on their behalf) on or before the execution of this  Agreement;  





 






Legal-63238732   172878-0002       141       CFD-#3 980496-v1    (b) the table of contents and the headings are inserted for convenience only and do not affect  the interpretation of this Agreement;  (c) references to clauses and Schedules are to clauses of, and schedules to, this Agreement,  references to this Agreement include its Schedules and references to a Part or paragraph  are to a Part or paragraph of a Schedule to this Agreement;  (d) references to this Agreement or any other document or to any specified provision of this  Agreement or any other document are to this Agreement, that document or that provision  as from time to time amended in accordance with the terms of this Agreement or that  document or, as the case may be, with the agreement of the relevant parties;  (e) words importing the singular include the plural and vice versa, words importing a gender  include every gender;  (f) references to a person include an individual, corporation, partnership, any unincorporated  body of persons and any government entity;  (g) references to any English legal term for any action, remedy, method of judicial proceeding,  legal document, legal status, Court, official or any legal concept or thing shall in respect of  any jurisdiction other than England be deemed to include what most nearly approximates  in that jurisdiction to the English legal term;  (h) references to time are to London time;  (i) references to sterling or £ or GBP are to the lawful currency from time to time of the United  Kingdom;  (j) references to making or calculating any payment to a person in respect of any Losses shall  be construed as requiring that the calculation of the amount payable shall take into account  the amount of any relief, credit or allowance available for tax purposes to the person  suffering such Losses and any reduction of tax otherwise payable by such person which,  in each case, arises as a result of the matter giving rise to such payment;   (k) the rule known as the ejusdem generis rule shall not apply, and accordingly words  introduced by words and phrases such as include, including, other and in particular  shall not be given a restrictive meaning or limit the generality of any preceding words or be  construed as being limited to the same class as the preceding words where a wider  construction is possible;  





 






Legal-63238732   172878-0002       142       CFD-#3 980496-v1    (l) the word company shall be deemed to include any partnership, undertaking or other body  of persons, whether incorporated or not incorporated and whether now existing or formed  after the date of this Agreement;  (m) reference to a person having control of another person, or being controlled by another  person, or being under common control with another person shall be construed as referring  to control within the meaning of any of sections 450 and 707 CTA 2010 and sections 995(1)  to 995(3) (inclusive) ITA 2007; and  (n) the phrase "to the extent" shall mean, "if, but only to the extent”.   3 In this Agreement, unless the context requires otherwise, a reference to any statute or statutory  provision (whether of the United Kingdom or elsewhere) includes:  (a) any subordinate legislation (as defined by section 21(1) Interpretation Act 1978) made  under it; and  (b) any provision which it has superseded or re-enacted (with or without modification), and any  provision superseding it or re-enacting it (with or without modification), before or on the  date of this Agreement, or after the date of this Agreement except to the extent that the  liability of any Party is thereby increased or extended,  and any such statute, statutory provision or subordinate legislation as is in force at the date of this  Agreement shall be interpreted at the date of this Agreement and no account shall be taken of  any change in the interpretation of any of the foregoing by any court of law or tribunal made after  the date of this Agreement.   





 






                    EXECUTED by   ..........................................  as ..........................................  )   for and on behalf of )   KERRY GROUP PLC ) ..........................................    EXECUTED by   ..........................................  as ..........................................  )   for and on behalf of )   PILGRIM’S PRIDE CORPORATION ) ..........................................      EXECUTED by   ..........................................  as ..........................................  )   for and on behalf of )   ONIX INVESTMENTS UK LIMITED ) ..........................................      EXECUTED by   ..........................................  as ..........................................  )   for and on behalf of )   ARKOSE INVESTMENTS ULC ) ..........................................