Fair Trading Act 1973 Undertakings

Opmerking bij alle ABN-AMRO clusterbommen artikelen op deze pagina's.
In februari 2004 maakte de ABN bekend zich terug te trekken uit INSYS.

Fair Trading Act 1973 Undertakings

INFORMATION

ACQUISITION OF HUNTING ENGINEERING LIMITED BY INSYS GROUP LIMITED

UNDERTAKINGS GIVEN TO THE SECRETARY OF STATE FOR TRADE AND INDUSTRY BY

INSYS GROUP LIMITED ("Insys")

ABN AMRO DEVELOPMENT CAPITAL (GUERNSEY) LIMITED ("AADC")

BARINGS (GUERNSEY) LIMITED (AS TRUSTEE OF THE FIFTH ABN AMRO CAUSEWAY DEVELOPMENT CAPITAL FUND) (the "Trustee")

PURSUANT TO SECTION 75G(1) OF THE FAIR TRADING ACT 1973

WHEREAS:


Hunting plc (registered in England with number 974568) proposes to sell its shareholding in its wholly owned subsidiary Hunting Engineering Limited (registered in England with number 585852) whose registered office is at Reddings Wood, Ampthill, Bedford MK45 2HD ("HEL") to Insys (registered in England with number 4141148) whose registered office is at Reddings Wood, Ampthill, Bedford MK45 2HD ("Insys");

following completion of the agreement referred to in Recital (A) above, the issued share capital of Insys will be beneficially owned by Messrs Ian Beith, Brian Hibbert and John Jewell and by the Fifth ABN AMRO Causeway Development Capital Fund ("ABN Fund"), a private equity fund acting through the Trustee and which is managed by AADC, which is ultimately owned and controlled by ABN AMRO Holding N.V. ("ABN AMRO");

the proposed management buy-out referred to in recitals A and B above was notified to the European Commission on 9 August 2001 as a concentration falling within Council Regulations 4064/89 on the control of concentrations between undertakings ("ECMR");

it appears to the Secretary of State that as a consequence there is a merger situation qualifying for investigation;

although the European Commission has sole jurisdiction to investigate the competition aspects of the merger under the EC Merger Regulation, the Secretary of State has a residual power by virtue of Article 21(3) of the ECMR to make a merger reference to the Competition Commission under section 64(1) of the Fair Trading Act 1973 (the "Act") or, instead of making such a reference to accept undertakings under section 75G(1) of the Act;

the requirements of the Official Secrets Acts 1911 to 1989 and UK National Security Regulations as defined in the UK Government's Manual of Protective Security impose certain restrictions on the use of and requirements for the protection of classified material;

the Director General Fair Trading ("Director General"):

has made a recommendation to the Secretary of State that a reference to the Competition Commission should be made; and

has under section 75G(1)(c) of the Act given advice to the Secretary of State specifying particular effects adverse to the public interest which in his opinion the merger situation qualifying for investigation may have or might be expected to have; and

the Secretary of State considers the undertakings given below by Insys, AADC and the Trustee are:

appropriate measures to protect the legitimate interests (other than those taken into consideration by the ECMR) and compatible with the general principles and other provisions of Community law in accordance with Article 21(3) of the ECMR; and

appropriate to remedy or prevent the effects adverse to the public interest specified in the advice given by the Director General.

Insys, AADC and the Trustee therefore give to the Secretary of State the following undertakings for the purpose of remedying or preventing the effects adverse to the public interest specified in the advice given by the Director General.

INTERPRETATION

1. In these undertakings:-

1.1. Where reference is made to any company then in the event of any merger, joint venture or acquisition or internal re-organisation such reference shall be interpreted as applying to the equivalent or successor organisation in the new structure;

1.2. Except where the context does not allow, the singular shall include the plural and the plural shall include the singular;

1.3. Reference to a clause shall be a reference to a clause within these undertakings;

1.4. "Classified " means protectively marked in accordance with the system of protective marking defined in the Government Manual of Protective Security;
1.5. "Effective Date" means the date of completion of the sale referred to in Recital (A);

1.6. "Military Programmes " means any Classified, defence-related programmes in relation to which HEL or its subsidiaries enters into or has entered into contracts or obtains or have obtained any Classified information with the intention of entering into or deciding whether to enter into contracts;

1.7. "Security Undertakings" means the undertakings made at clauses 2 and 3;

1.8. "Shareholders' Agreement " means the agreement between the ABN Fund, the other shareholders of Insys and Insys governing their relationship as shareholders of Insys;

1.9. "Subsidiary" has the meaning ascribed it in the Companies Acts but additionally a company ("A ") shall be a subsidiary of another company ("B") if B has joint control (with one or more other undertakings) of A. " Joint control " has the meaning ascribed to it in the European Commission Notice on the concept of concentration under Council Regulation (EEC) No 4064/89 on the control of concentrations between undertakings (98/C 66/02);

1.10. "UK Military Capability " means the capability of HEL (including the capability of any of its subsidiaries) prior to the Effective Date to carry out UK Military Programmes and the capability necessary to perform any contracts (including those entered into after the Effective Date) relating to UK Military Programmes;

1.11. "UK Military Programmes" means Military Programmes in relation to which the ultimate customer is or was the Ministry of Defence;

1.12. "UK National Security Regulations " means the rules in relation to Classified material set out in the Government Manual of Protective Security as amended or supplemented from time to time.

SECURITY UNDERTAKINGS

2. Insys undertakes that:- Maintenance of strategic capabilities

2.1. Military Programmes shall continue to be controlled (whether by HEL or its successors) by a company or companies incorporated within the UK under UK law and in relation to which a majority of the company directors are UK nationals;

2.2. The board of directors of HEL (or their successors) shall contain sufficient UK nationals who are security-cleared to enable security sensitive issues to be resolved at board level should the need arise;

2.3. It shall provide to the Ministry of Defence a copy of the Shareholders' Agreement and Articles of Association of Insys and shall inform the Ministry of Defence in writing and thereafter consult with the Ministry of Defence at least 2 months before the effective date of any amendment to the Shareholders' Agreement or the Articles of Association or of any change to the degree of control held by it individually or collectively over HEL that would reduce its ability to comply with the Security Undertakings;

2.4. It shall inform the Ministry of Defence in writing and thereafter consult with the Ministry of Defence at least 3 months prior to either substantive alienation of any significant defence related asset of HEL or any proposal for the voluntary winding-up or dissolution of HEL. The Ministry of Defence shall be the sole arbiter in the event of any dispute as to what is to be construed as a significant defence related asset and where it is in any doubt they shall first consult the Ministry of Defence. Substantive alienation includes disposal to another Subsidiary of ABN AMRO;

2.5. It shall inform in writing and thereafter consult with the Ministry of Defence as soon as possible after it becomes aware of any proposal for:

2.5.1. ABN Fund to transfer its interest in the whole or any part of its equity shareholding of Insys;

2.5.2. Insys to transfer the whole or any part of its equity shareholding of HELand in any event at least 2 months prior to any such transfer. Transfer includes transfer to any company or person whether by private sale or an offer to the public;

2.6. It shall inform the Ministry of Defence in writing and thereafter consult with the Ministry of Defence as soon as possible and in any event at least 2 months prior to running down or affecting adversely in any way the UK Military Capability;

2.7. In accordance with and to the extent required by existing contractual guidelines laid down by the Ministry of Defence and unless otherwise agreed by the Ministry of Defence, UK Military Programmes shall be designed, managed, manufactured and supported primarily in the UK and shall not be sub-contracted outside the UK without prior approval from the Ministry of Defence (other than to Euro-Shelter S.A.);

2.8. It shall ensure continuity of development and/or supply of all goods and services for UK Military Programmes for which HEL are under contract with the Ministry of Defence at the Effective Date and, subject to the Ministry of Defence acting reasonably and endeavouring to place contracts in the future, ensure continuity of support (including re-supply and spares) for equipment in service with the Ministry of Defence at the Effective Date for which it or HEL own the design rights;

Intellectual Property Rights

2.9. It shall procure that the rights of the Ministry of Defence at the Effective Date in respect of any intellectual property (including information, data packs, designs, drawings and software) shall not be adversely affected by any transfer of intellectual property rights from HEL;

Protection of Classified Information


2.10. All matters relating to security within Insys and HEL shall be maintained in line with UK National Security Regulations, including the security of work areas subject to special physical ring-fencing and in particular:

(i) the operational management of the UK Military Capability within Insys and HEL shall be by UK security cleared personnel with security procedures meeting UK National Security Regulations and any other such requirements as deemed necessary from time to time by the UK security authorities; and

(ii) only approved personnel with appropriate security clearance shall have access to information classified "Confidential" and above;


2.11. No information classified "Confidential" or above, or bearing a national or composite caveat, shall be passed to the Trustee, AADC or ABN AMRO or any of ABN AMRO�s other Subsidiaries without the prior approval of the Ministry of Defence. Transfers by whatever means of Classified information to foreign nationals or to locations outside the UK national jurisdiction shall only be conducted subject to the prior approval of the Ministry of Defence;

2.12. No information classified "Confidential" or above or bearing a national or composite caveat and no other Classified information which is owned by a third party or country shall in any circumstances be disclosed to foreign or dual nationals without the prior written approval of the Ministry of Defence;

Compliance

2.13. It shall provide the Ministry of Defence with such information as it may from time to time reasonably require to ascertain that it is fulfilling the obligations accepted by it pursuant to these undertakings. If it is unable to comply with any of these undertakings, it shall provide full reasons for the non-compliance within one month of becoming aware of it; 2.14. As well as a security officer responsible for facilitating and overseeing the compliance with UK National Security Regulations and the Security Undertakings set forth in this Agreement at each of the premises of Insys and HEL (as required by UK National Security Regulations), Insys shall as soon as is reasonably practicable following consultation with the Ministry of Defence appoint a competent person (the "Compliance Officer"), who shall be responsible for providing to the Ministry of Defence:

(i) an annual report within three months of the end of their financial year, as well as any other such information as the Ministry of Defence may from time to time require, to verify compliance with the Security Undertakings, including any measures taken or proposed by Insys or by HEL so as to ensure compliance with the Security Undertakings and to prevent any breach of them; and

(ii) full particulars of any failure to comply with the Security Undertakings immediately upon such failure becoming apparent;
2.15. It shall procure that, for the purpose of checking compliance with the Security Undertakings, a representative of the Ministry of Defence shall be entitled to enter and inspect any premises used by Insys and HEL which are in any way connected with Military Programmes and inspect any document or thing in any such premises which is concerned with such Military Programmes. Such representative shall be entitled to all such information as he may reasonably require.

UNDERTAKINGS BY AADC AND THE TRUSTEE

3.Each of AADC and the Trustee undertakes that:

3.1 it is fully aware of the Security Undertakings given by Insys as set out in clause 2 and undertakes that it will not exercise, or recommend the exercise of, the voting rights attaching to the Trustee's shares in Insys in such a way as knowingly to prevent Insys from complying with such Security Undertakings;

3.2 it shall inform in writing and thereafter consult with the Ministry of Defence as soon as possible after it becomes aware of any proposal for the ABN Fund to transfer its interest in the whole of or any part of the equity share holding of Insys and in any event 2 months prior to any such transfer. Transfer includes disposal to any company or person whether by private sale or an offer to the public;

INFORMATION

4. Insys, AADC and the Trustee shall provide promptly to the Director General such information as he may reasonably require for the purpose of ascertaining that these undertakings are being or have been complied with.

Signed for and on behalf of Insys acting through

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and by AADC acting through

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and by the Trustee acting through

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